William H. Rehnquist: We'll hear argument next in Number 99-1185, Mark Seling v. Andre Brigham Young. Ms. Hart.
Maureen A. Hart: Mr. Chief Justice and may it please the Court-- This case presents a narrow but important issue, and it concerns how this Court determines the threshold question of whether a statute is civil or criminal. This threshold inquiry is important because it establishes what constitutional rules apply to a statute and that the statute must satisfy, and also what constitutional protections are available to people who are subject to the statute. It also is important because this same threshold inquiry applies to many kinds of statutes, not just statutes such as Washington's, providing for the commitment of sexually violent predators. It applies to numerous statutes, including others that deal with confinement such as more generalized civil commitment laws, commitments for drug or alcohol treatment, statutes such as quarantine statutes, and statutes relating to pretrial detention. In this case, the Ninth Circuit rejected the principle that whether a law is civil or criminal is a threshold question based on legislative intent and the face of the statute. Instead, the Ninth Circuit held that Washington's admittedly civil law may be divested of its civil nature and converted into a criminal law if conditions of confinement at Washington's Special Commitment Center are punitive. In other words, the Ninth Circuit held that the fundamental nature of a law as either civil or criminal may vary and that the same statute may be both civil and criminal at different times and in different places. The Ninth Circuit's decision is fundamentally wrong. It conflicts with the holding of this Court in Hudson v. United States. It doesn't serve--
Sandra Day O'Connor: Ms. Hart, I suppose you could have a situation where on habeas some prisoner, some person being held under a statutory scheme of this type could come in and say, on Federal habeas, I'm being held under circumstances that violate the Constitution, and make an individual challenge, isn't that so?
Maureen A. Hart: --I think that in habeas an individual who's subject to confinement could come in and the purpose of habeas would be for that person to indicate that for some constitutional reason the very fact or duration of his or her confinement violates the Constitution.
Sandra Day O'Connor: Right. Is that what this person is doing, or is there something different?
Maureen A. Hart: No, Your Honor. In fact, I think that what Mr. Young has here essentially is a civil rights claim that the conditions of confinement at the Special Commitment Center are not what they ought to be.
Sandra Day O'Connor: Now, there is an ongoing 1983 class action, is there, covering this very facility?
Maureen A. Hart: Yes, there is, Your Honor.
Sandra Day O'Connor: And under that action, presumably this respondent would be affected by the outcome of that?
Maureen A. Hart: I believe that's correct. The Special Commitment Center is under the supervision of the Federal District Court in Washington at the moment. That particular case basically deals with issues of whether there's adequate treatment at the Special Commitment Center.
Antonin Scalia: Why is that a constitutional claim? I mean, what constitutional claim does he have other than the double jeopardy claim?
Maureen A. Hart: In this case, Your Honor?
Speaker: Ex post facto.
Antonin Scalia: Or ex post facto.
William H. Rehnquist: Both.
Speaker: Both.
Maureen A. Hart: He would have each of those claims, and in this case, provided he... that our statute is punitive--
Antonin Scalia: No, no, but I mean, assuming the statute is not punitive, does he have any other constitutional relief for the fact that he is not getting the treatment which the statute provides he's supposed to be given? Is that a constitutional claim, or just a State law claim?
Maureen A. Hart: --He would have, certainly under Washington statute, a State law claim in the sense--
Antonin Scalia: Correct.
Maureen A. Hart: --that the statute requires adequate treatment and--
Antonin Scalia: Right, but what other Federal constitutional claim would he have?
Maureen A. Hart: --The only Federal constitutional claim that I believe might otherwise be involved here would be a claim that goes to conditions of confinement on some sort of--
Antonin Scalia: Cruel and unusual punishment? He's not--
Maureen A. Hart: --No, not with respect to any issues that would flow from the criminal law, Your Honor. There are... certain decisions of this Court will not precisely reach an issue that I read to suggest that individuals who are deprived of their liberty are entitled to certain minimal adequate conditions of confinement as perhaps a matter of substantive due process.
Ruth Bader Ginsburg: --And is that the basis for the... is it the Turay suit? There is a pending 1983 case, so we don't have to speculate, at least, about the basis of that lawsuit. What is the constitutional right that's invoked in that litigation?
Maureen A. Hart: In the litigation that's ongoing currently--
Speaker: Yes.
Maureen A. Hart: --Justice Ginsburg, the right that is being invoked is essentially a right that one might find derivative from your decision in Youngberg, and that is a right to a certain level of mental health treatment.
David H. Souter: Well, in effect the claim is that if you commit me for treatment, you've got to treat me. I've got a substantive due process right to that effect--
Maureen A. Hart: That's correct, Your Honor.
David H. Souter: --if I am treatable. But that's the kernel of it, isn't it?
Maureen A. Hart: That's the essence of the claim, Your Honor.
William H. Rehnquist: Well, Youngberg certainly didn't go that far.
Maureen A. Hart: It didn't, Your Honor, but I believe that that's where the genesis of the claim in this case, and as I say, there's certain language in Youngberg that would perhaps lead one in that particular direction.
Speaker: But turning to this case, when at the outset a determination is made for an order for a civil commitment, is there no basis for the court to determine and to look at how the disease is defined, how the treatment is defined, what treatment facilities are available in order to determine whether or not it's punitive?
Maureen A. Hart: Your Honor--
Speaker: Isn't there some initial assessment that must be made?
Maureen A. Hart: --No, Your Honor. This Court has, for purposes of civil commitment has required two predicates. One is a mental condition, and the other is an existing dangerousness. Once that civil commitment is affected, however, Your Honor, there are certain claims that can be made and are being made in the State of Washington that the individual subject to that commitment is entitled to adequate care and an adequate level of treatment, but that doesn't go to... the conditions of confinement, Your Honor, wouldn't go to the face of the statute, or whether the statute itself is punitive. This Court--
Speaker: Why is that? I mean, suppose you have a compulsive ax murderer, and you know, he's served his time, but he's still a compulsive ax murderer. You could not commit him simply because he's dangerous and then not provide treatment? Or what about quarantine of someone who has a communicable disease? In order to quarantine, do you have to provide treatment?
Maureen A. Hart: --Your Honor, I don't find an answer to those questions precisely in this Court's jurisprudence. It does seem to me that one of the things this Court has said, however, on a due process level, is that a statute... if the State is going to claim that it's committing an individual for treatment, that's what its statutory purpose is, then the statute ought to relate to that in terms of the nature of the confinement and the duration of the confinement.
John Paul Stevens: Does this statute make that representation, that it's confining him for treatment, or does it simply talk about the abnormality, mental abnormality?
Maureen A. Hart: Your Honor, this statute confines for treatment and in order to protect the community from these individuals, so it's... statutorily it serves both purposes.
Stephen G. Breyer: Suppose that he makes out his claim. Suppose he proves what he's trying to prove. Suppose he proves that there's virtually no treatment for people who could benefit by it, that it's virtually impossible to be released to half way houses even though certain medical people would say he was safe enough for that. He proves that it's being run by prison officials for the most part, and not by mental health officials, and that really there isn't much segregation from the general prison population, and they don't seem to have the status of ordinary mentally ill people confined for civil purposes. Assume he proves that, would that then violate the statute?
Maureen A. Hart: That would be inconsistent with Washington's statute.
Stephen G. Breyer: So it would violate the statute. So you've read his claims, and you're saying that if he proves what he says he's going to prove, then the conditions violate Washington's statute.
Maureen A. Hart: Washington's statute specifically requires that individuals--
Stephen G. Breyer: Yes, but I'd like a yes or no answer to my question.
Maureen A. Hart: --I believe my answer to the question, as I understand it, Justice Breyer, is yes.
Stephen G. Breyer: Thank you.
William H. Rehnquist: That wouldn't afford a basis for any Federal relief, I take it, if it's simply a claim that the confinement violates the Washington statute.
Maureen A. Hart: No, Your Honor, that would not. One of the things about this statute is that Mr. Young and others like him have a remedy under State law, and that remedy, because of the way our statute is read, is to ensure and press litigation, as is being done in Washington, that the appropriate level of care and treatment is being provided, but he... but it--
Speaker: Well, if you can find for us a civil purpose that clearly cannot be fulfilled, is that one index at least, or one indicator of an intent to punish?
Maureen A. Hart: --Well, Your Honor, this Court has pointed to a number of indicators, all of them determined facially under the Court's jurisprudence in Hudson, such as whether there is a confinement in the first place, what is the purpose, and whether the statute is rationally related and fulfills that--
Speaker: So you read our precedents as saying our inquiry must be simply confined to a facial inquiry, and not to the reality of what the treatment is or is going to be?
Maureen A. Hart: --Whether a statute is criminal or civil... civil, excuse me... this Court has held is a facial matter. That's precisely what the Court held in Hudson, and in doing so disavowed an approach that it had taken in Helper that looked at the actual effects, but... or conditions of confinement would be the equivalent here. But Your Honor, that doesn't mean that people like Mr. Young are without a remedy, or that they are left unable to secure the--
Speaker: May I put the question just a little differently? Assume our first case holds that a statute is civil, a facial attack on the statute as being criminal authorization for double jeopardy and ex post facto violation, and we reject that by saying the statute on its face is a civil statute. Does that mean that every application of that statute that might subsequently be challenged would have to come up with the same answer? In other words, is it conceivable that a statute which is valid in response to a facial attack could nevertheless be invalid as applied in particular cases?
Maureen A. Hart: --I don't believe so, Your Honor, and I believe that's essentially what this Court held in Hudson when it overruled Helper.
Ruth Bader Ginsburg: Wasn't there language... perhaps it was in Hendrix... that the first question is, does the legislature mean to enact a civil or criminal provision, and then the second question is, is the scheme so punitive in purpose or effect, and I emphasize or effect, as to transform the civil remedy into criminal penalty? What does that mean, yes, the legislature wants a civil statute, not a criminal statute, but it is so punitive in effect as to be transformed from civil to criminal?
Maureen A. Hart: Well, Your Honor, I believe two things about that. First, that Hudson stands for the proposition and reaffirms the notion that the effects test for whether a statute is civil or criminal is a facial test, and having given you that answer, I believe that what the effects test, or what that language means, is what are the necessary consequences of the very statutory provisions that whether it's Congress or State legislature has provided. That would be the effects.
David H. Souter: Yes, but if the statute has been administered for some period of time before the adjudication, I take it that the experience under that administration may be considered in what we are calling a facial inquiry.
Maureen A. Hart: I'm afraid I disagree with that, Your Honor.
Antonin Scalia: Well, do you have to disagree entirely? I suppose you could take into account the administration in determining what the meaning of ambiguous provisions of the statute are. That wouldn't be harmful, I suppose. But you wouldn't say you could take into account the implementation to such a degree that you would allow the implementation to contradict the very terms of the statute, which is what you're talking about here.
Maureen A. Hart: That's correct, Your Honor, and that's essentially the essence of the claim before the Court.
Speaker: If that's-- --You win if... no, please. Well, all right.
Stephen G. Breyer: If that's so, I take it... and this is just an elaboration of what I asked you before. I don't know if you're familiar enough with Hendrix to refer to it by page number, but at the end, on page 368, the Court sums up the factors in the statute that make it civil, and they include things, to bring it to your mind, the State's disavowed any punitive intent, it's limited its confinement to a small segment, and particularly... there are procedural safeguards, they're segregated, they have the same status as the other civilly committed, recommended treatment is possible, et cetera. Does that call to mind the paragraph that you're probably familiar with?
Maureen A. Hart: Yes, it does.
Stephen G. Breyer: Okay.
Speaker: Am I right in saying from your prior answer that you think your statute meets all those?
Maureen A. Hart: Yes.
Stephen G. Breyer: And that insofar as the facts in a particular case don't meet them, they violate the statute.
Maureen A. Hart: That's... that would be true, Your Honor, and I would point out that the language that you're dealing, or you're quoting from, from Hendrix, is language that for each of those propositions one can go back to the Hendrix opinion and find that the source of those things, such as the procedural protections, the segregation from the prison population, within the statute, just as one can in the State of Washington. And as you noted in writing the dissent in Hendrix--
Speaker: Yes.
Maureen A. Hart: --the Kansas law, our State law, Washington State law was a model for the Kansas law. They're essentially identical, except for some places where Washington's--
Stephen G. Breyer: Yes, but it's important they be interpreted the same way. They... the majority interpreted that statute in Kansas to require certain things, like adequate treatment, and I take it... at least that's how I read it. That's... the words are there, and the... so... it's important to me that you're saying that if those are not being given in fact, then the remedy for the prisoner is to sue under the State law and say, this is what the State law means, and I'm not getting it.
Maureen A. Hart: --I believe that a resident at the center would have that opportunity under State law to--
David H. Souter: Insofar as this case is concerned, I take it, you leave open the possibility... you certainly don't concede it, but you leave open the possibility that there could be a Federal substantive due process claim on the theory that we threw out a moment ago, you and I were talking about a moment ago, which I guess has been asserted, and that is, if the State's purpose in commitment is treatment, and I have a treatable condition and they don't treat me, that is a violation of due process. I'm not asking you to concede that that theory should prevail, but that is at least a possible assertion that could be made in a Federal court.
Maureen A. Hart: --I believe that's true, Your Honor, and I would like to note that since the question really before this Court is that narrow question of how the Court determines whether a statute is civil or criminal, that that kind of issue and concern is one that really is reflected in, I think in part, or you can find in part in the factors that this Court looks at facially.
David H. Souter: Right, and I take it that the... that for you to win this case the proposition that your case really turns on is not even a broad proposition, or a broad set of rules about how we determine whether it's criminal or civil, but rather, your case depends on the proposition that it doesn't vary from individual to individual. It is either civil, or it is criminal, and that the details of individual treatment do not affect that determination.
Maureen A. Hart: That's correct, Your Honor.
William H. Rehnquist: And perhaps it's even narrower than has been suggested judging from your question presented. What we're actually talking about is, does the... was the Ninth Circuit wrong in saying that this statute as presented to it could violate either the Ex Post Facto Clause or the Double Jeopardy Clause?
Maureen A. Hart: That's correct. Those are the only two claims involved in this case and before this Court.
Ruth Bader Ginsburg: How does one respond to the, what I understood to be the complaint in this case, which is, I am civilly committed, and yet I'm housed in a prison and I'm treated worse than I was treated when I was serving a sentence of conviction? That's essentially, as I take it, his complaint. There's no change in my circumstances from the time I was incarcerated as punishment. If anything, I'm being treated worse now than I was. How does one answer that claim?
Maureen A. Hart: I think the way one answers it in the State of Washington first of all has been referenced by other members of the Court, is that Washington's law requires the provision of adequate care and individualized treatment to these individuals. The other thing that I think answers, or helps answer that, Your Honor, is that Washington's law, just like Kansas' law, is a civil commitment statute, and once having enacted a civil commitment statute, there are certain consequences that fall from that for a State, and among them is to provide care more considerate than one would receive or is constitutionally entitled to receive in a penal institution.
Ruth Bader Ginsburg: My understanding is that he did have a proceeding in the State court before he came to Federal court, is that correct?
Maureen A. Hart: Yes. There is a direct appeal by Mr. Young from his commitment.
Ruth Bader Ginsburg: It was only that, so at that stage he wasn't complaining about the treatment he was in fact getting. He was complaining about the right to continue confinement, is that so?
Maureen A. Hart: I'm sorry, I missed the last part of your--
Ruth Bader Ginsburg: I asked if in his States court litigation he was challenging, as he is now, that he is being kept in confinement, that he's being treated no better and, in fact, worse than he was treated when he was in prison.
Maureen A. Hart: --Your Honor, that really wasn't an issue on the direct appeal. When the Washington supreme court affirmed Mr. Young's commitment it remanded the case to the court of appeals for two purposes, to determine whether a less restrictive alternative... or actually for one purpose, to determine whether a less restrictive alternative to total confinement would be appropriate to Mr. Young, and in the context of that proceeding, at the outset of that proceeding, Mr. Young challenged the conditions of confinement at the Special Commitment Center. There was a hearing of some week's duration on that issue, and the court declined to conclude that the conditions of confinement were punitive.
Ruth Bader Ginsburg: So there is a final adjudication after the remand from the Washington supreme court.
Maureen A. Hart: Your Honor, my understanding, and it is correct, it's not simply my understanding, is that there has been an appeal from that, and that appeal is... that appeal to the court of appeals is pending now. In other words, the supreme court of Washington sent this back to the trial court on a less restrictive issue, less restrictive alternative. In the context of that proceeding, Mr. Young raised the issue of conditions of confinement, was not successful there, and is now appealing that to the Court of Appeals of the State of Washington, and that matter is pending.
Ruth Bader Ginsburg: You described the first instance decision in rather careful words. You say that they declined to find that. Did they reject such a claim? Did they say, even if he would establish that he's being treated no better and perhaps worse, he still has no claim. What was the reason he was--
Maureen A. Hart: The court... this... the order from this proceeding the Court will find at page JA 49, the joint appendix at 49, and the court after trial simply concluded... let me see... simply concluded that he had not demonstrated that the conditions were punitive.
Antonin Scalia: --And the point was that if they were punitive they would have violated the Washington statute. Was that the point of the proceeding?
Maureen A. Hart: I believe the proceeding itself was a generalized challenge to conditions of confinement at the Special Commitment Center.
Antonin Scalia: As violating what?
Maureen A. Hart: I believe that the focus there was a constitutional type substantive due process claim, Justice Scalia.
Speaker: What was the mental disorder, or the personality disorder, or the mental abnormality that was established here?
Maureen A. Hart: Mr. Young was found to suffer from a severe paraphilia characterized either by sexual sadism or rape, as well as a severe antisocial personality disorder.
William H. Rehnquist: What is paraphilia, if that's the word?
Maureen A. Hart: It's essentially a mental condition that is characterized by recurrent and intense urges and fantasies, sexual fantasies with respect to things that are either nonhuman objects, nonconsenting adults, children... it's a pathological, pathologically driven mental condition.
Anthony M. Kennedy: Does a person have that disorder if he has or she has volitional control?
Maureen A. Hart: I think that--
Anthony M. Kennedy: They've talked about this in the brief, and I'm never quite sure of the full significance of this part of the inquiry.
Maureen A. Hart: --In Washington's statute, mental... a mental abnormality, which is a predicate to commitment under Washington law, requires a condition that does affect volitional control. My understanding, Your Honor, of this sort of mental disorder, this sort of paraphilia, is that it is a difficulty with volitional control, that you'll have situations where individuals will have these repeated urges and fantasies and then act on them, perhaps be remorseful, but they will repeat, and the ability to control them is something that the individual cannot do consistently.
Anthony M. Kennedy: We talk about this. Do the psychiatrists talk about this in a way that has meaning to them? Do they say, this person has or has not volitional control? Is that a standard psychiatric frame of evaluation?
Maureen A. Hart: Not that I'm specifically aware of, Your Honor, but I believe it's somewhat inherent in the nature of this particular mental condition.
Anthony M. Kennedy: Do you interpret the findings here that he lacked volitional control?
Maureen A. Hart: Under Washington statute, he would have to have... suffer from a mental abnormality, or was bound to suffer from a mental abnormality, Your Honor, that entails a lack of volitional control, or at least an impairment of his ability to control what he does.
William H. Rehnquist: I take it what... he was originally convicted of rape?
Maureen A. Hart: He was... he has a lengthy criminal history, Your Honor, of six violent rapes.
William H. Rehnquist: And I presume under Washington law some sort of mens rea is required for the offense of rape.
Maureen A. Hart: I believe... I believe that's... I'm not sure, Your Honor. I don't believe there's necessarily a mental element. There may be a mental element.
William H. Rehnquist: Well I mean, would Washington law at least recognize a defense that he was unable to control his actions? Or would it be the McNaughton test?
Maureen A. Hart: I think in Washington it would be the ability to discern right from wrong. Just before... I'd like to save a couple of minutes for rebuttal, but the other thing I would like to do before I do this is essentially to sort of bring this case back to the question before the Court and to make the Court understand that a number... and I'm sure you do appreciate that, that a number of the questions that you're posing here are ones that have already been resolved against Mr. Young both in the Washington supreme court and in the Ninth Circuit and that the very narrow and limited issue, but important one, before this Court is rather, how the Court determines whether a statute is civil or criminal. If I could, I'd like to reserve--
William H. Rehnquist: Very well, Ms. Hart. Mr. Boruchowitz. Am I pronouncing your name correctly?
Robert C. Boruchowitz: Yes, sir. Mr. Chief Justice, and may it please the Court-- I'd like to begin by answering quickly some of the questions that the Court just asked. Justice Kennedy's question with regard to the evidence about Mr. Young's mental abnormality, the testimony was that from the single State psychologist was that he has a paraphilia not otherwise specified. He also has a personality disorder not otherwise specified, neither of which, standing alone, would support the prediction that the psychologist was required to make, but by combining the two, by 51 percent he would say that Mr. Young would be dangerous. There's no evidence of volitional control or the lack of volitional control. There's no jury instruction. There's no requirement about that whatsoever and, as the DSM makes clear, simply having a disorder in the DSM does not make any indication about lack of volitional control. With regard to the question about the evidence below--
Speaker: And is it conceded by all sides that that showing is, under Washington law, sufficient to commit him civilly?
Robert C. Boruchowitz: --Under the Washington statute, yes. The test... well, yes. We have argued that in the State court and lost, that that volitional control element is required, and as the amicus brief suggests, that remains potentially unclarified by the Hendrix opinion, but in Washington that testimony was sufficient. I think it's important to point out with regard to the testimony, to the decision in the superior court below in Mr. Young's case at the joint appendix, page 61, the trial court applied to Mr. Young a burden of proof beyond a reasonable doubt in order to show that the effect of the statute was unconstitutional. The judge did find that we proved by a preponderance of the evidence that certain conditions were less than treatment and greater than prison and so forth but, since she applied to us beyond reasonable doubt, we lost. In the Campbell case, which is pending cert in this Court, a judge found that in fact the conditions were unconstitutional, so that needs to be clarified, I suggest.
Ruth Bader Ginsburg: And then what happened--
William H. Rehnquist: --The Campbell case was in State court?
Robert C. Boruchowitz: Yes. Yes, Your Honor. Campbell lost in the supreme court and is now pending cert here.
Ruth Bader Ginsburg: And what was the reason for overturning the trial judge's disposition in Campbell?
Robert C. Boruchowitz: Basically the State supreme court took the position that the Attorney General is here, that a statute should be looked at only on its face, and that the effect of the statute, the conditions of the statute, the punitive conditions of the statute as implemented didn't make any difference.
Stephen G. Breyer: Obviously, the word isn't applied. That's the wrong concept, I would have thought, that the conditions in an individual case show what the statute may or may not permit.
Robert C. Boruchowitz: That's correct, Your Honor.
Stephen G. Breyer: And if they permit no treatment, then, of course, everybody I think concedes... I don't know if everybody does, but I'd say then it's unconstitutional. But the difficulty here right now, I think, is the majority's opinion in Hendrix is the law. The majority listed certain features of this case... Hendrix... which made it civil and not criminal.
Robert C. Boruchowitz: That's correct.
Stephen G. Breyer: Now, you've heard the Attorney General say, and I guess what's important is that your client have some remedy, that he does have a remedy. That's what's important, and the remedy is that those conditions that made the Hendrix statute civil do not pertain to your client, then the law of Washington is violated, and therefore your client has an excellent remedy. Either the Hendrix majority conditions apply, or they do not. If they do apply, you can't complain... on my... I was in dissent. But if they don't apply... if they don't apply, well then, you have a perfect remedy, so what's the problem with that, from the point of view of the law?
Robert C. Boruchowitz: Well, Your Honor, I think there are many problems with it. This Court, of course, has not interpreted the Washington statute. You only interpreted the Kansas statute, and all three opinions in Hendrix focused on the conditions of confinement. The majority said, no one here is claiming that there's punitive conditions. No one here is claiming that Mr. Hendrix is not treated as a civilly committed person, and so we look at that and we decide it's not punitive. Justice Kennedy suggested that if, in fact, it turns out that treatment is a sham, then the decision would go the other way, and the dissent focused heavily on conditions and showed that treatment was not, in fact, there, so my suggestion is that this Court over and over and over again in a series of cases has looked at how a statute is implemented. In the Allen v. Illinois case this Court said this would be a different case if somebody had claimed that there was punitive conditions. Most recently in Gardner v. Jones this Court, in evaluating an ex post facto claim, said, we're going to remand this case because there wasn't enough discovery done below about what's actually going on, and what the Court said is that the respondent must show that, as applied to his own case, his own sentence, the law created a risk of ex post facto, and also said in Gardner, when the rule does not by its own terms show a significant risk, the respondent must demonstrate by evidence drawn from the rules practical implementation in his case. As long ago as Yerkwo v. Hopkins, that's the position that the Court took, that a statute that was on its face neutral, but that was as applied with, as the Court put it, an unequal eye, or an evil eye, an unequal hand, that--
William H. Rehnquist: Was Yerkwo either an ex post facto or a double jeopardy case?
Robert C. Boruchowitz: --No, it was not, Your Honor, but what I'm suggesting is that the reasoning that the Court has applied in many different areas of the law is to look at the implementation of the statute and that the actions of an administrative agency, whether it's the parole board in Gardner, or the city laundry regulators in Yerkwo, represent the State itself, and that the State--
David H. Souter: I may in substance agree with you, but is that why we have this case? I mean, I don't... I didn't think we had this case to determine whether the statute was criminal or civil. I thought we had this case to determine whether, given a classification as civil, it may then later be treated as having a criminal character with respect to its application to particular individuals, and isn't that latter issue the one that's before us?
Robert C. Boruchowitz: --I think precisely, Your Honor, the issue before you is whether the Ninth Circuit was correct in ordering an evidentiary hearing on the question of whether the initial confinement render the statute unconstitutional.
David H. Souter: But the assumption, as I understand it, and I may be wrong on this, but I thought the assumption of the Ninth Circuit's position was that we start with the proposition that it is a civil statute.
Robert C. Boruchowitz: That's correct.
David H. Souter: But that it's application may be rendered criminal in particular cases.
Robert C. Boruchowitz: That's correct.
David H. Souter: All right. And so the issue before us is whether the Ninth Circuit, whether that option is, in fact, available, and one of the things that we want to know, and this goes back to Justice Breyer's question is, let's assume it's not available. Let's assume that criminality of the statute's character is not a shifting and springing quality. Does... on the assumption that it's a civil statute, does your client have a remedy under State law, and I would add to it, does he have a remedy, even on the assumption of civil character, under Federal law?
Robert C. Boruchowitz: He would have a remedy, Your Honor, to sue under 1983 in State or Federal court.
David H. Souter: And his claim would be--
Robert C. Boruchowitz: His claim would be a due process claim that he--
David H. Souter: --Substantive due process?
Robert C. Boruchowitz: --Yes.
David H. Souter: Okay. The claim that I was talking about with counsel for the State.
Robert C. Boruchowitz: That's correct.
David H. Souter: Okay. So he's got that, and he has a State law claim that he's entitled to treatment which he's not getting.
Robert C. Boruchowitz: I think it's important to look at the reality, both of the effect of the statute and of the litigation that's been going on. It's been 6 years since a Federal court has enjoined the State in this matter. The Federal court held the State in contempt, noting its foot dragging and deliberate avoidance of his injunction on the treatment need at the facility. The former Director called the facility dysfunctional, so--
David H. Souter: Well, it may be all of those things, but wasn't the... I'm not sure they're before us.
Robert C. Boruchowitz: --Well, the reason I mention it, Your Honor, is you ask, does he have a viable alternative, and I think there may be a civil remedy, but the civil remedy does not get at the fundamental question in this case, which is that my client has been punished for 10 years under a so called civil commitment statute.
Ruth Bader Ginsburg: But if you're right, then I take it every member of that class that's now involved in a 1983 case would have an equally valid habeas claim.
Robert C. Boruchowitz: Well, Your Honor, some of them certainly would, depending on what the district court eventually finds at the hearing. I would point out, by the way, that I don't believe it's an actual certified class, but there are multiple named plaintiffs, but--
Ruth Bader Ginsburg: Well, all of the named plaintiffs.
Robert C. Boruchowitz: --But certainly everyone would be able to bring their own challenge as applied to them, in fact, the statue was unconstitutional. Mr. Young should be able to have his day in the trial court, in the Federal district court, as the Ninth Circuit has ordered, to be able to show that the purpose and effect of this statute are, in fact, unconstitutional.
Stephen G. Breyer: That's why I'm confused on the procedure. I would think the answer to Justice Souter's question, I mean, at least as I would see it, would be you have a civil statute, but this person is suffering criminal treatment.
Robert C. Boruchowitz: That's correct.
Stephen G. Breyer: All right. I'd say if that's so, of course he must have a remedy.
Robert C. Boruchowitz: Right.
Stephen G. Breyer: They're saying he does have. He has two remedies. You don't need to create a new category. The first remedy would be, under State law... it violates the statute, and then if you lose on that one, there would be another, which would say that the Federal Constitution doesn't permit a person who is civilly committed to be there without any treatment, where he can sustain the treatment, et cetera, et cetera, and that would be the Federal constitutional claim. You might win, you might lose, but it seems to me you have those already in the lower courts, and we don't need a remand on this case to give you those. That's where I'm confused. I mean, they're already pending, those two claims. One's in the Washington system, the other's in the Federal system, and so what's this thing now going to help on?
Robert C. Boruchowitz: Well, Your Honor, the posture of this case is somewhat unusual in that the Court has taken cert of this case before the evidentiary hearing in district court, and the Ninth Circuit said, send this back because Mr. Young didn't have his evidentiary hearing which he should have had. I think it's important to point out, in response to what Justice Ginsburg asked earlier, Mr. Young has claimed that this statute was being punitively applied, and that in fact it was punitive in purpose from the very beginning. He brought a personal restraint petition before he even has his trial in State court, so he has made this claim from the very beginning, both that the effect of this statute illuminates the punitive purpose, and that the effect itself is punitive. After Hendrix, and after the Ninth Circuit remanded the case the first time, then the focus of the court was on the punitive effect.
John Paul Stevens: But may I just ask this question. If he's correct that as applied to him it's punitive, then does that not mean that he's been subjected to double jeopardy and is entitled to his release?
Robert C. Boruchowitz: Absolutely.
John Paul Stevens: That's your position?
Robert C. Boruchowitz: Yes, Justice Stevens, because in fact the whole purpose of a writ of habeas corpus is to challenge unconstitutional incarceration, and the relief is release, and that's what Mr. Young has been asking for from the day he filed his habeas--
Speaker: And you add that you can make this showing at the very outset of the order committing him to the civil treatment?
Robert C. Boruchowitz: --Yes, Your Honor. I think it's even more the case now, after 10 years, but yes, at the very outset this was a facility that was set up with not even a licensed psychologist on staff. This was not what the Court described in Hendrix, of a psychiatric facility with 31 hours a week of treatment. This was a facility that did not even have a licensed psychologist, that had no certified sex offender treatment providers until long, long, long after the injunction was in place.
David H. Souter: But Mr. Boruchowitz, doesn't... again, doesn't your argument go to a different issue from the one that's before us? You're arguing, I think, that your client should have, or should have had an opportunity to show that this is not like the Hendrix statute, and that this one is, in fact, a punitive statute, and therefore all the punitive protections apply? But that's not the issue that we've got before us, is it?
Robert C. Boruchowitz: Well, Your Honor, I think it is the issue.
David H. Souter: I thought the issue... and we can make it either or. I thought the issue we had before us was a determination by the State court that the statute here was like the Hendrix statute and therefore we had a civil statute, and the question was, may the application of that statute nonetheless be treated as criminal in particular cases, even though the statute is classified as a general matter as civil? I thought we had the latter issue, not the issue whether he should be able to prove, or could prove that it was in constitutional terms unlike Hendrix in a criminal statute.
Robert C. Boruchowitz: Well, Your Honor, I'm not sure I understand the question, but let me try this--
David H. Souter: The question... let me do it again. The question is, is the issue before us whether this is a criminal statute, or is the issue before us whether a civil statute may nonetheless give rise to claims of violating criminal constitutional protections if the civil statute is not followed by its own terms? Which question?
Robert C. Boruchowitz: --I think between the two I think it's the second question.
David H. Souter: Okay. That's what I thought.
Robert C. Boruchowitz: Yes, but I believe that on remand the court of appeals opinion suggests that the district court should examine the effect of the statute and along the way mentions some evidentiary aspects that to the Ninth Circuit looked as if the statute, in fact, were... had a punitive purpose, a deterrent purpose.
Ruth Bader Ginsburg: How would that evidentiary hearing differ from the one that's already been had in the Federal court in the Turay case?
Robert C. Boruchowitz: Well, Your Honor, I think one of the first questions for the district judge to decide would be what nature proceeding he would undertake, and whether he would simply use a record that had been established in the other proceeding, whether collateral estoppel would apply on certain issues and, if not, whether he would take evidence on recent developments. That's something we haven't reached yet, but I would think that would be the first question for the judge to decide. What nature of evidence do I take? Do I simply look at the record Judge Dwyer has prepared over 10 years, or do I look at some additional evidence?
Anthony M. Kennedy: I thought your position was that you can challenge this statute at the very outset of the order committing him based on the fact that, as demonstrated by the way in which the treatment facility is operated, it is... it is not for a civil purpose, and that the classification of the disease is too imprecise--
Robert C. Boruchowitz: That's correct.
Anthony M. Kennedy: --to admit of psychiatric treatment.
Robert C. Boruchowitz: Yes. It--
Anthony M. Kennedy: And you simply want to use evidence of existing conditions to challenge the operation of the statute at the time that he's subjected to it.
Robert C. Boruchowitz: --That's right, Your Honor.
Anthony M. Kennedy: And that seems somewhat different than the answer you gave to Justice Souter.
Robert C. Boruchowitz: Well, both... I have to answer yes to both questions, because that's been our position from the very beginning, that the statute in its purpose was punitive, as evidenced by not only the legislative history, which this Court in Kennedy v. Mendoza Martinez described as the objective manifestation of the law, the legislative history, and also by the purpose and effect. By the effect, the implementation, which this Court also looks at over and over again.
Stephen G. Breyer: But that sounds a lot like my dissent, which the lower courts, as much as I'd like them to follow my dissents rather than the majority, I'm afraid, quite correctly, they follow the majority opinions, not the dissents and that's correct.
Robert C. Boruchowitz: Justice Breyer--
Stephen G. Breyer: So how do we reconcile that with... I mean, it's the majority--
Robert C. Boruchowitz: --Well, there are several ways to do that, Your Honor. First of all, as Justice Kennedy pointed out, Hendrix was decided affecting Hendrix alone and, as you suggested in dissent, if the concern that Justice Kennedy had in his concurrence about the, either potential of the sham treatment or the imprecision of mental abnormality, were to come true, that in fact due process implications would be raised as well, as you put it in your dissent. So I think all three opinions in Hendrix looked at the condition of confinement and, of course, did not look at the Washington statute. You have not looked at the Washington statute, and that's not your function today, because what you're being asked to do is whether the court of appeals remand was correct or not. Now, along the way, you have to examine the question of how do we go about making that decision, and initially you look at the face of the statute, but that's not enough. The civil label is not enough, you've said over and over again, and what you do then is, you look beyond that to the purpose and effect. Has it been implemented in such a way that the effect is punitive? If it's punitive, then double jeopardy and ex post facto--
Antonin Scalia: --Well, it doesn't necessarily mean effect that way. I mean, that's the crucial language, purpose and effect. Does it mean, the effect as evident from the face of the statute, which is what your opponent says, or does it mean the effect as it is played out, even if that contradicts the face of the statute? That's the crucial issue.
Robert C. Boruchowitz: --I agree.
Antonin Scalia: What that language, effect, means.
Robert C. Boruchowitz: Yes, Justice Scalia, I think that's right, and my suggestion is that Hudson doesn't even mention Hendrix. Hendrix talks in all three opinions about the condition of confinement, and cites other cases that talk about implementation. Hudson was a question involving fines and debarment imposed by the Controller of the Currency. Hudson was decided 6 months after Hendrix, doesn't even mention it, let alone purport to overrule it. This Court has over 100 years of history, in many, many different areas of the law, of looking at how a statute is implemented to determine its constitutionality.
William H. Rehnquist: But Hudson was an opinion dealing precisely with the constitutional claim that you're raising.
Robert C. Boruchowitz: That's correct.
William H. Rehnquist: With the Double Jeopardy Clause.
Robert C. Boruchowitz: That's correct, Your Honor. I think there are key differences from Hudson, and they boil down to liberty versus money, because in Hudson you're talking about fines and debarment, and--
William H. Rehnquist: Well, does the Double Jeopardy Clause make any such distinction?
Robert C. Boruchowitz: --I don't think it does, no, Your Honor, but I think the Court's opinions have indicated a greater concern about implementation of the law and the facts as applied when liberty is involved, and I think--
Speaker: Sorry. Go ahead.
Robert C. Boruchowitz: --I was just going to say that in the Ex Post Facto context, certainly that's what the Gardner decision did, because the Court said the facts are not before us as to how this statute is implemented, and the policies and practices of the parole board certainly should be considered, and so we're going to remand for that.
William H. Rehnquist: In Gardner the claim was made that the rule in general had an ex post facto effect on gain time, and I think our Court said you... it's not enough to show it might have affected some people. You've got to show it affected you.
Robert C. Boruchowitz: That's correct.
William H. Rehnquist: Which is quite different, I think, from what you're saying.
Robert C. Boruchowitz: I understand the Court's point, but I... my suggestion is this, that just as it was important... I mean, the ultimate question in Gardner v. Jones is, is there an ex post facto violation for Mr. Jones, and the question here, ultimately, not necessarily at this moment in this Court, but ultimately, is there a double jeopardy and ex post facto violation in Mr. Young's case, and so how do we do that? In Gardner, we look at the implementation as applied to him. He has to put on evidence of as applied to him. And in Young, all we're asking for is what the Ninth Circuit ordered, which is our opportunity to do that.
Stephen G. Breyer: Is it going to the same judge who's handling the other Federal case?
Robert C. Boruchowitz: No, Your Honor. I suppose they could merge it.
Stephen G. Breyer: It just seems to me this is going to be exactly the same issue. If we just let it alone, it would have gone back to the judge. The judge would have either said, you're right, the conditions are terrible, you're not getting any treatment, in which case you would have had three separate grounds for getting the relief, but you would have gotten it, or you're wrong, in which case you'd be out, and I don't really... now, see, what we're deciding, we're deciding whether this judge should do it or that judge should do it, and the standards seem to me to be roughly the same. I just don't... and then the consequence is the same.
Robert C. Boruchowitz: Well, it seems to me, Your Honor, the Court could--
William H. Rehnquist: It's not your fault--
Robert C. Boruchowitz: --No.
William H. Rehnquist: --that you're before this Court.
Speaker: [Laughter]
Robert C. Boruchowitz: Thank you, Mr. Chief Justice.
Speaker: Quite right.
Robert C. Boruchowitz: It seems to me that now that we're here the Court could do many different things. The Court could simply say, we meant in Hendrix that the conditions were important. We were all concerned about that, and the Ninth Circuit is right to consider the purpose and effect as shown by the conditions. You could just do that. You could also say, by the way, mental abnormality, we really did mean what we said about lack of control, and that there should be some showing about, the person has no volitional control, and that would clear up a lot of things in the lower courts. As we pointed out in our supplemental two page brief, the State of Kansas just decided that yes, in fact, Hendrix does require the lack of volitional control. The Court could also, I suppose, go beyond the question presented, which it has the authority to do, and say, this statute certainly looks like it's very different than what we though Hendrix was, and at least in Washington as it's being applied there's a problem, but I don't think the Court needs to do that. The Court simply can say, we're going to remand this case and let the court of appeals order stand, because what the court of appeals has simply done is to apply Hendrix. There's nothing different from Hendrix in what the Ninth Circuit did. We're simply going to send it down for the district court to evaluate it, and if the district court, Judge Cunero decided that let Judge Dwyer handle it because he's done the 1983 litigation, that could easily... that's something the district court could do if it decided to do that. But obviously the 1983 litigation has not been a habeas situation involving the question of release because of unconstitutional punishment, and what this case is ultimately about is that a man has been punished for 10 years in a prison, longer than he served under his criminal sentence, without having committed another crime and without having a traditional mental disorder. And so there are many issues presented, and I think one of the things that's difficult about examining this case is that it's something fundamentally radically different from a true civil commitment. There's nothing wrong with a true civil commitment, but this is not civil commitment. This is punishment. And I think that if you look at the various cases that we've cited here, one other thing about Hudson that I think is important is that the Court said that the penalties in Hudson did not approach the infamous punishment of imprisonment. They involved administrative disability, and they were imposed in administrative proceedings. In Ward, the Court found that the penalty for oil discharge and water pollution was more analogous to traditional civil damages. In Shaw v. Martin, before the Court found that pretrial detention did not violate due process, the Court examined the actual conditions of confinement and cited testimony in the opinion about actual practices.
William H. Rehnquist: Of course, if the... what constitutional question was involved in Shaw?
Robert C. Boruchowitz: Due process, Your Honor.
Speaker: Yes, and I think that doesn't help you very much when you're trying to transpose that holding over into double jeopardy or ex post facto, which are much more precise.
Robert C. Boruchowitz: I appreciate that, Your Honor. The Court has often considered punishment in a parallel way, whether it's due process, double jeopardy, or ex post facto, but I certainly acknowledge that Shaw was a due process case. This is a situation where, as Judge Dwyer indicated in the Turay 1983 litigation, for all intents and purposes this is a prison. It looks like, feels like, and is a prison run by the Department... or the external facility run by the Department of Corrections, which is at page 6 of our brief, joint appendix 147. This is a situation where the State of Washington, over the time that the injunction has been in place, has made it harder to get less restrictive alternatives. One of the things that this Court was concerned about in Hendrix, and specifically mentioned, was the less restrictive alternative idea, and what Washington has done in the last 5 years is to eliminate less restrictive alternative from the initial court determination and to make it harder for someone to get it. I would suggest that this Court over and over, in a number of cases involving both double jeopardy and due process and ex post facto has been to look at the statute as applied. In Foosha, Justice Thomas dissented saying that this would be a different case if the procedures as applied would show, as he put it, window dressing in that case. In fact, what we have here is the actual implementation of the treatment has turned out to be a sham. The Court has said over and over that if you can show by the clearest proof that a statute is punitive in effect, then you can win. The clearest proof by its terms suggests that evidence will be taken, because otherwise where is the proof? In answer to Justice Scalia's question, does it just mean what naturally flows from the language, or does it mean the actual implementation? I would suggest that clearest proof means proof of evidence, not simply proof of--
John Paul Stevens: May I ask on that point, are you contending... is it your view that you have to prove that everyone subject to this statute is being punished, or just that your client is being punished?
Robert C. Boruchowitz: --Just that my client is being punished, Justice Stevens.
John Paul Stevens: Well, what if there are 100 people in prison, 99 of them are civil, and your client is punished? That would... he would get relief, then?
Robert C. Boruchowitz: I think so, Your Honor, because ultimately the logical extension of the State's position is that you could torture someone and beat them and deprive them of food, and as long as the State calls it civil--
John Paul Stevens: Yes, but there are remedies for those things. I mean, those are independent constitutional violations.
Robert C. Boruchowitz: --That's correct.
John Paul Stevens: Yes.
Robert C. Boruchowitz: But ultimately, if the way the statute is being applied to an individual is punitive--
John Paul Stevens: Yes, but it would seem to me your case would be very strong if you could say everybody who's subject to this statute is being punished, but you don't go that far.
Robert C. Boruchowitz: --Well, Your Honor, we don't have a record that would allow me to say that categorically, that everyone... I think certainly in response to Justice, I believe--
Speaker: Part of your allegation could seem to establish that, if this particular facility is... has no psychiatrist and is in a correction facility, everybody incarcerated there must be punished, I would think.
Robert C. Boruchowitz: --Our answer is yes to that, Your Honor, but I don't think the Court has to answer that question to rule in Mr. Young's behalf, but I think you're right that, as we've been arguing from the very beginning, the statute had a punitive purpose, it was designed to close the gaps, we couldn't accept the double jeopardy and ex post facto--
John Paul Stevens: Would it be open on remand, under your understanding of the mandate, for you to try to prove what I've just suggested?
Robert C. Boruchowitz: --Well, Your Honor, I think the Court could say that the application to all other prisoners would certainly enlighten the question of what's applying to Mr. Young, but the Court doesn't need to reach that question. But I think the answer to the question would be yes, because it has had a punitive purpose and effect from the beginning, but I don't think there's anything that's in conflict with Hendrix for us to go forward. What Hendrix said was, nobody here's saying it's punitive, it applies to Hendrix alone, it would be different if, and that's what the Court has said in many different circumstances, including Allen v. Illinois. The case would be a different case if someone had shown that there was a punitive effect. So over and over again I think the Court has looked at the actual implementation of the statute, but you're right, I think from the very beginning he's been committed without authority of law. Let me just take a minute to mention Ex Parte Virginia, because I think it's important when the State argues that an administrative agency does not bind the State in some way. This Court said that whoever by virtue of a public position under State government deprives another of constitutional rights violates the Constitution, and he acts in the name and for the State and his act is that of the State. There can be no defense here that it's simply the administrative agency running amok. This is certainly an act of the State that binds the State. The State... thank you, Your Honor.
William H. Rehnquist: Thank you, Mr. Boruchowitz. Ms. Hart, you have 3 minutes remaining.
Maureen A. Hart: Thank you. I would like to point out to the Court again that this case is before the Court on a very narrow issue, and it is a threshold issue, and that is, how the Court determines whether a statute is civil or criminal. Hudson establishes that that is done facially. Washington... the issue about whether Washington's statute is civil or criminal is not before this Court. Both the Washington supreme court and the Ninth Circuit Court of Appeals have held that Washington statute is civil on its face, meaning the legislature's intent was to have a civil statute and that in purpose and in effect the Washington statute is civil. The predicates for commitment are not at issue before this Court. There is no question that Mr. Young suffers from a mental abnormality and a personality disorder that makes him likely to engage in sexually violent acts if he is not detained. That is not before this Court. The Washington supreme court and the Ninth Circuit have both ruled against Mr. Young on those issues, and there was no cross petition here. The only issue before this Court, and what Mr. Young is contending, is that because he alleges that he is not receiving treatment consistent with a civil statute, that he ought to be released, and the only way Mr. Young can contend that is by saying, if I do not receive the treatment that I'm entitled to under a civil statute, somehow that converts this statute to a criminal statute, that one day your statute can be civil, the next day it can be criminal. In Mr. Young's view, if Washington had two commitment centers instead of one, the law would be civil at the center where the commitment... where the treatment was adequate and--
John Paul Stevens: Could you answer the question I... supposing he proves that everybody who's been committed pursuant to this statute has been punished?
Maureen A. Hart: --Then everyone committed pursuant to the statute would be entitled to go into either State court or Federal court and get those remedies, get those conditions remedied, but they do not go to the validity of whether... they do not go back to the character of Washington's statute. Washington's statute is a civil law, and that is meaningful. It means that people confined pursuant to that law are entitled to the treatment that civil committees are given under the statute and under the Constitution, and the proportionate, measured, wholly adequate remedy is to go to court and require the State of Washington to provide the treatment and the care that it has promised.
David H. Souter: But on your view the reason he could not, on Justice Stevens' hypothetical, argue that the court had made a mistake in finding the statute across the board to be a civil statute is that the character of the statute on your view must be determined on the text of the statute, on the basis of the statutory text alone, is that it? You could find that the text--
Maureen A. Hart: Under the Hudson test.
William H. Rehnquist: Thank you, Ms. Hart. The case is submitted.