SELING, SUPERINTENDENT, SPECIAL COMMIT- MENT CENTER v. YOUNG

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Syllabus
SELING, SUPERINTENDENT, SPECIAL COMMIT-
MENT CENTER v. YOUNG
certiorari to the united states court of appeals for
the ninth circuit
No. 99–1185. Argued October 31, 2000—Decided January 17, 2001
Washington State’s Community Protection Act of 1990 (Act) authorizes
the civil commitment of “sexually violent predators,” persons who suffer
from a mental abnormality or personality disorder that makes them
likely to engage in predatory acts of sexual violence. Respondent
Young is confined under the Act at the Special Commitment Center
(Center), for which petitioner is the superintendent. Young’s chal-
lenges to his commitment in state court proved largely unsuccessful.
Young then instituted a habeas action under 28 U. S. C. § 2254, seeking
release from confinement. The District Court initially granted the
writ, concluding that the Act was unconstitutional. While the superin-
tendent’s appeal was pending, this Court decided Kansas v. Hendricks,
521 U. S. 346, holding that a similar commitment scheme, Kansas’ Sexu-
ally Violent Predator Act, on its face, met substantive due process re-
quirements, was nonpunitive, and thus did not violate the Double Jeop-
ardy and Ex Post Facto Clauses. The Ninth Circuit remanded for
reconsideration in light of Hendricks. The District Court then denied
Young’s petition. In particular, the District Court determined that, be-
cause the Washington Act is civil, Young’s double jeopardy and ex post
facto claims must fail. The Ninth Circuit reversed that ruling. The
“linchpin” of Young’s claims, the court reasoned, was whether the Act
was punitive “as applied” to Young. The court did not read Hendricks
to preclude the possibility that the Act could be punitive as applied.
Reasoning that actual confinement conditions could divest a facially
valid statute of its civil label upon a showing by the clearest proof that
the statutory scheme is punitive in effect, the court remanded the case
for the District Court to determine whether the conditions at the Center
rendered the Act punitive as applied to Young.
Held: An Act, found to be civil, cannot be deemed punitive “as applied” to
a single individual in violation of the Double Jeopardy and Ex Post
Facto Clauses and provide cause for release. Pp. 260–267.
(a) Respondent cannot obtain release through an “as-applied” chal-
lenge to the Act on double jeopardy and ex post facto grounds. The
Act is strikingly similar to, and, in fact, was the pattern for, the Kansas
Act upheld in Hendricks. Among other things, the Court there applied

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Syllabus
the principle that determining the civil or punitive nature of an Act
must begin with reference to its text and legislative history. See 521
U. S., at 360–369. Subsequently, the Court expressly disapproved of
evaluating an Act’s civil nature by reference to its effect on a single
individual, holding, instead, that courts must focus on a variety of fac-
tors considered in relation to the statute on its face, and that the clearest
proof is required to override legislative intent and conclude that an Act
denominated civil is punitive in purpose or effect. Hudson v. United
States, 522 U. S. 93, 100. With this in mind, the Ninth Circuit’s “as-
applied” analysis for double jeopardy and ex post facto claims must be
rejected as fundamentally flawed. This Court does not deny the seri-
ousness of some of respondent’s allegations. Nor does the Court ex-
press any view as to how his allegations would bear on a court determin-
ing in the first instance whether Washington’s confinement scheme is
civil. Here, however, the Court evaluates respondent’s allegations
under the assumption that the Act is civil, as the Washington Supreme
Court held and the Ninth Circuit acknowledged. The Court agrees
with petitioner that an “as-applied” analysis would prove unworkable.
Such an analysis would never conclusively resolve whether a particular
scheme is punitive and would thereby prevent a final determination of
the scheme’s validity under the Double Jeopardy and Ex Post Facto
Clauses. Confinement is not a fixed event, but extends over time under
conditions that are subject to change. The particular features of con-
finement may affect how a confinement scheme is evaluated to deter-
mine whether it is civil or punitive, but it remains no less true that
the query must be answered definitively. A confinement scheme’s civil
nature cannot be altered based merely on vagaries in the authorizing
statute’s implementation. The Ninth Circuit’s “as-applied” analysis
does not comport with precedents in which this Court evaluated the
validity of confinement schemes. See, e. g., Allen v. Illinois, 478 U. S.
364, 373–374. Such cases presented the question whether the Act at
issue was punitive, whereas permitting respondent’s as-applied chal-
lenge would invite an end run around the Washington Supreme Court’s
decision that the Act is civil when that decision is not before this
Court. Pp. 260–265.
(b) Today’s decision does not mean that respondent and others com-
mitted as sexually violent predators have no remedy for the alleged
conditions and treatment regime at the Center. The Act gives them
the right to adequate care and individualized treatment. It is for the
Washington courts to determine whether the Center is operating in
accordance with state law and provide a remedy. Those courts also
remain competent to adjudicate and remedy challenges to civil confine-
ment schemes arising under the Federal Constitution. Because the

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252 SELING v. YOUNG
Syllabus
Washington Supreme Court has held that the Act is civil in nature,
designed to incapacitate and to treat, due process requires that the con-
ditions and duration of confinement under the Act bear some reasonable
relation to the purpose for which persons are committed. E. g., Foucha
v. Louisiana, 504 U. S. 71, 79. Finally, the Court notes that an action
under 42 U. S. C. § 1983 is pending against the Center and that the Cen-
ter operates under an injunction requiring it to take steps to improve
confinement conditions. Pp. 265–266.
(c) This case gives the Court no occasion to consider how a confine-
ment scheme’s civil nature relates to other constitutional challenges,
such as due process, or to consider the extent to which a court may look
to actual conditions of confinement and implementation of the statute to
determine in the first instance whether a confinement scheme is civil in
nature. Whether such a scheme is punitive has been the threshold
question for some constitutional challenges. See, e. g., Allen, supra.
However, the Court has not squarely addressed the relevance of con-
finement conditions to a first instance determination, and that question
need not be resolved here. Pp. 266–267.
192 F. 3d 870, reversed and remanded.
O’Connor, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Scalia, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined.
Scalia, J., filed a concurring opinion, in which Souter, J., joined, post,
p. 267. Thomas, J., filed an opinion concurring in the judgment, post,
p. 270. Stevens, J., filed a dissenting opinion, post, p. 274.
Maureen Hart, Senior Assistant Attorney General of
Washington, argued the cause for petitioner. With her on
the briefs were Christine O. Gregoire, Attorney General,
Sarah Blackman Sappington, Assistant Attorney General,
David J. W. Hackett, Special Assistant Attorney General,
and William Berggren Collins, Senior Assistant Attorney
General.
Robert C. Boruchowitz argued the cause for respondent.
With him on the briefs were David B. Hirsch, Dennis P.
Carroll, and Christine Jackson.*
*A brief of amici curiae urging reversal was filed for the State of Kan-
sas et al. by Carla J. Stovall, Attorney General of Kansas, Stephen R.
McAllister, State Solicitor, and Jared S. Maag, Assistant Attorney Gen-

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253 Cite as: 531 U. S. 250 (2001)
Opinion of the Court
Justice O’Connor delivered the opinion of the Court.
Washington State’s Community Protection Act of 1990
authorizes the civil commitment of “sexually violent pred-
ators,” persons who suffer from a mental abnormality
or personality disorder that makes them likely to engage
in predatory acts of sexual violence. Wash. Rev. Code
§ 71.09.010 et seq. (1992). Respondent, Andre Brigham
Young, is confined as a sexually violent predator at the Spe-
cial Commitment Center (Center), for which petitioner is the
superintendent. After respondent’s challenges to his com-
mitment in state court proved largely unsuccessful, he insti-
tuted a habeas action under 28 U. S. C. § 2254, seeking re-
lease from confinement. The Washington Supreme Court
had already held that the Act is civil, In re Young, 122 Wash.
2d 1, 857 P. 2d 989 (1993) (en banc), and this Court held a
similar commitment scheme for sexually violent predators in
Kansas to be civil on its face, Kansas v. Hendricks, 521 U. S.
346 (1997). The Court of Appeals for the Ninth Circuit nev-
ertheless concluded that respondent could challenge the stat-
ute as being punitive “as applied” to him in violation of the
eral, and by the Attorneys General for their respective States as follows:
Bill Pryor of Alabama, Janet Napolitano of Arizona, Mark Pryor of
Arkansas, Bill Lockyer of California, Ken Salazar of Colorado, Robert A.
Butterworth of Florida, James E. Ryan of Illinois, Thomas J. Miller of
Iowa, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland,
Thomas F. Reilly of Massachusetts, Jennifer M. Granholm of Michigan,
Mike Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Joseph
P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa
of Nevada, John J. Farmer, Jr., of New Jersey, Heidi Heitkamp of North
Dakota, Betty D. Montgomery of Ohio, W. A. Drew Edmondson of
Oklahoma, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania,
Charles M. Condon of South Carolina, Mark Barnett of South Dakota,
Jan Graham of Utah, Mark L. Earley of Virginia, and James E. Doyle
of Wisconsin.
Briefs of amici curiae urging affirmance were filed for the California
Atascadero State Hospital Section 6600 Civil Committees by Joel E.
Krischer; and for the National Association of Criminal Defense Lawyers
by Edward M. Chikofsky and Barbara E. Bergman.

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254 SELING v. YOUNG
Opinion of the Court
Double Jeopardy and Ex Post Facto Clauses, and remanded
the case to the District Court for an evidentiary hearing.
I
A
Washington State’s Community Protection Act of 1990
(Act) was a response to citizens’ concerns about laws and
procedures regarding sexually violent offenders. One of the
Act’s provisions authorizes civil commitment of such offend-
ers. Wash. Rev. Code § 71.09.010 et seq. (1992 and Supp.
2000). The Act defines a sexually violent predator as some-
one who has been convicted of, or charged with, a crime of
sexual violence and who suffers from a mental abnormality
or personality disorder that makes the person likely to en-
gage in predatory acts of sexual violence if not confined in
a secure facility. § 71.09.020(1) (Supp. 2000). The statute
reaches prisoners, juveniles, persons found incompetent to
stand trial, persons found not guilty by reason of insanity,
and persons at any time convicted of a sexually violent of-
fense who have committed a recent overt act. § 71.09.030.
Generally, when it appears that a person who has committed
a sexually violent offense is about to be released from con-
finement, the prosecuting attorney files a petition alleging
that that person is a sexually violent predator. Ibid. That
filing triggers a process for charging and trying the person
as a sexually violent predator, during which he is afforded a
panoply of protections including counsel and experts (paid
for by the State in cases of indigency), a probable cause hear-
ing, and trial by judge or jury at the individual’s option.
§§ 71.09.040–71.09.050. At trial, the State bears the burden
to prove beyond a reasonable doubt that the person is a sexu-
ally violent predator. § 71.09.060(1).
Upon the finding that a person is a sexually violent preda-
tor, he is committed for control, care, and treatment to the
custody of the department of social and health services.
Ibid. Once confined, the person has a right to adequate care

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and individualized treatment. § 71.09.080(2). The person is
also entitled to an annual examination of his mental condi-
tion. § 71.09.070. If that examination indicates that the in-
dividual’s condition is so changed that he is not likely to en-
gage in predatory acts of sexual violence, state officials must
authorize the person to petition the court for conditional
release or discharge. § 71.09.090(1). The person is entitled
to a hearing at which the State again bears the burden of
proving beyond a reasonable doubt that he is not safe to
be at large. Ibid. The person may also independently peti-
tion the court for release. § 71.09.090(2). At a show cause
hearing, if the court finds probable cause to believe that the
person is no longer dangerous, a full hearing will be held at
which the State again bears the burden of proof. Ibid.
The Act also provides a procedure to petition for condi-
tional release to a less restrictive alternative to confinement.
§ 71.09.090. Before ordering conditional release, the court
must find that the person will be treated by a state certified
sexual offender treatment provider, that there is a specific
course of treatment, that housing exists that will be suffi-
ciently secure to protect the community, and that the person
is willing to comply with the treatment and supervision re-
quirements. § 71.09.092. Conditional release is subject to
annual review until the person is unconditionally released.
§§ 71.09.096, 71.09.098.
B
Respondent, Andre Brigham Young, was convicted of six
rapes over three decades. App. to Pet. for Cert. 33a.
Young was scheduled to be released from prison for his most
recent conviction in October 1990. One day prior to his
scheduled release, the State filed a petition to commit Young
as a sexually violent predator. Id., at 32a.
At the commitment hearing, Young’s mental health ex-
perts testified that there is no mental disorder that makes a
person likely to reoffend and that there is no way to predict
accurately who will reoffend. The State called an expert

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256 SELING v. YOUNG
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who testified, based upon a review of Young’s records, that
Young suffered from a severe personality disorder not other-
wise specified with primarily paranoid and antisocial fea-
tures, and a severe paraphilia, which would be classified as
either paraphilia sexual sadism or paraphilia not otherwise
specified (rape). See generally American Psychiatric Asso-
ciation, Diagnostic and Statistical Manual of Mental Disor-
ders 522–523, 530, 532, 634, 645–646, 673 (4th ed. 1994). In
the state expert’s opinion, severe paraphilia constituted a
mental abnormality under the Act. The State’s expert
concluded that Young’s condition, in combination with the
personality disorder, the span of time during which Young
committed his crimes, his recidivism, his persistent denial,
and his lack of empathy or remorse, made it more likely
than not that he would commit further sexually violent
acts. The victims of Young’s rapes also testified. The jury
unanimously concluded that Young was a sexually violent
predator.
Young and another individual appealed their commitments
in state court, arguing that the Act violated the Double Jeop-
ardy, Ex Post Facto, Due Process, and Equal Protection
Clauses of the Federal Constitution. In major respects, the
Washington Supreme Court held that the Act is constitu-
tional. In re Young, 122 Wash. 2d 1, 857 P. 2d 989 (1993) (en
banc). To the extent the court concluded that the Act vio-
lated due process and equal protection principles, those rul-
ings are reflected in subsequent amendments to the Act.
See Part I–A, supra.
The Washington court reasoned that the claimants’ double
jeopardy and ex post facto claims hinged on whether the Act
is civil or criminal in nature. Following this Court’s prece-
dents, the court examined the language of the Act, the legis-
lative history, and the purpose and effect of the statutory
scheme. The court found that the legislature clearly in-
tended to create a civil scheme both in the statutory lan-
guage and legislative history. The court then turned to

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examine whether the actual impact of the Act is civil or
criminal. The Act, the court concluded, is concerned with
treating committed persons for a current mental abnormal-
ity, and protecting society from the sexually violent acts as-
sociated with that abnormality, rather than being concerned
with criminal culpability. The court distinguished the goals
of incapacitation and treatment from the goal of punishment.
The court found that the Washington Act is designed to fur-
ther legitimate goals of civil confinement and that the claim-
ants had failed to provide proof to the contrary. 122 Wash.
2d, at 18–25, 857 P. 2d, at 996–1000.
The Act spawned several other challenges in state and fed-
eral court, two of which bear mention. Richard Turay, com-
mitted as a sexually violent predator, filed suit in Federal
District Court against Center officials under Rev. Stat.
§ 1979, 42 U. S. C. § 1983, alleging unconstitutional conditions
of confinement and inadequate treatment at the Center. In
1994, a jury concluded that the Center had failed to provide
constitutionally adequate mental health treatment. App.
64–68. The court ordered officials at the Center to bring
the institution up to constitutional standards, appointing a
Special Master to monitor progress at the Center. The Cen-
ter currently operates under an injunction. Turay v. Seling,
108 F. Supp. 2d 1148 (WD Wash. 2000). See also Brief for
Petitioner 8–9.
Turay also appealed his commitment as a sexually violent
predator in state court, claiming, among other things, that
the conditions of confinement at the Center rendered the
Washington Act punitive “as applied” to him in violation
of the Double Jeopardy Clause. The Washington Supreme
Court ruled that Turay’s commitment was valid. In re
Turay, 139 Wash. 2d 379, 986 P. 2d 790 (1999) (en banc). The
court explained that in Young, it had concluded that the Act
is civil. 139 Wash. 2d, at 415, 986 P. 2d, at 809. The court
also noted that this Court had recently held Kansas’ Sexually
Violent Predator Act, nearly identical to Washington’s Act,

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to be civil on its face. Ibid. The Washington Supreme
Court rejected Turay’s theory of double jeopardy, reasoning
that the double jeopardy claim must be resolved by asking
whether the Act itself is civil. Id., at 416–417, 986 P. 2d, at
810 (citing Hudson v. United States, 522 U. S. 93 (1997)).
The court concluded that Turay’s proper remedy for constitu-
tional violations in conditions of confinement at the Center
was his § 1983 action for damages and injunctive relief. 139
Wash. 2d, at 420, 986 P. 2d, at 812.
C
That brings us to the action before this Court. In 1994,
after unsuccessful challenges to his confinement in state
court, Young filed a habeas action under 28 U. S. C. § 2254
against the superintendent of the Center. Young contended
that the Act was unconstitutional and that his confinement
was illegal. He sought immediate release. The District
Court granted the writ, concluding that the Act violated sub-
stantive due process, that the Act was criminal rather than
civil, and that it violated the double jeopardy and ex post
facto guarantees of the Constitution. Young v. Weston, 898
F. Supp. 744 (WD Wash. 1995). The superintendent ap-
pealed. While the appeal was pending, this Court decided
Kansas v. Hendricks, 521 U. S. 346 (1997), which held that
Kansas’ Sexually Violent Predator Act, on its face, met sub-
stantive due process requirements, was nonpunitive, and
thus did not violate the Double Jeopardy and Ex Post Facto
Clauses. The Ninth Circuit Court of Appeals remanded
Young’s case to the District Court for reconsideration in
light of Hendricks. 122 F. 3d 38 (1997).
On remand, the District Court denied Young’s petition.
Young appealed and the Ninth Circuit reversed and re-
manded in part and affirmed in part. 192 F. 3d 870 (1999).
The Ninth Circuit affirmed the District Court’s ruling that
Young’s confinement did not violate the substantive due
process requirement that the State prove mental illness

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and dangerousness to justify confinement. Id., at 876. The
Court of Appeals also left undisturbed the District Court’s
conclusion that the Act meets procedural due process and
equal protection guarantees, and the District Court’s rejec-
tion of Young’s challenges to his commitment proceedings.
Id., at 876–877. Young did not seek a petition for a writ of
certiorari to the Ninth Circuit for its decision affirming the
District Court in these respects, and accordingly, those is-
sues are not before this Court.
The Ninth Circuit reversed the District Court’s determi-
nation that because the Washington Act is civil, Young’s dou-
ble jeopardy and ex post facto claims must fail. The “linch-
pin” of Young’s claims, the court reasoned, was whether the
Act was punitive “as applied” to Young. Id., at 873. The
court did not read this Court’s decision in Hendricks to pre-
clude the possibility that the Act could be punitive as ap-
plied. The court reasoned that actual conditions of con-
finement could divest a facially valid statute of its civil label
upon a showing by the clearest proof that the statutory
scheme is punitive in effect. 192 F. 3d, at 874.
The Court of Appeals reviewed Young’s claims that condi-
tions of confinement at the Center were punitive and did not
comport with due process. Id., at 875. Young alleged that
for seven years, he had been subject to conditions more re-
strictive than those placed on true civil commitment detain-
ees, and even state prisoners. The Center, located wholly
within the perimeter of a larger Department of Corrections
(DOC) facility, relied on the DOC for a host of essential serv-
ices, including library services, medical care, food, and secu-
rity. More recently, Young claimed, the role of the DOC had
increased to include daily security “walk-throughs.” Young
contended that the conditions and restrictions at the Center
were not reasonably related to a legitimate nonpunitive goal,
as residents were abused, confined to their rooms, subjected
to random searches of their rooms and units, and placed
under excessive security.

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Young also contended that conditions at the Center were
incompatible with the Act’s treatment purpose. The Center
had a policy of videotaping therapy sessions and withholding
privileges for refusal to submit to treatment. The Center
residents were housed in units that, according to the Special
Master in the Turay litigation, were clearly inappropriate
for persons in a mental health treatment program. The
Center still lacked certified sex offender treatment provid-
ers. Finally, there was no possibility of release. A court-
appointed resident advocate and psychologist concluded in
his final report that because the Center had not fundamen-
tally changed over so many years, he had come to suspect
that the Center was designed and managed to punish and
confine individuals for life without any hope of release to
a less restrictive setting. 192 F. 3d, at 875. See also
Amended Petition for Writ of Habeas Corpus, Supplemental
Brief on Remand, and Motion to Alter Judgment 4–5, 8–9,
11–12, 15, 20, 24–26, in No. C94–480C (WD Wash.), Record,
Doc. Nos. 57, 155, and 167.
The Ninth Circuit concluded that “[b]y alleging that [the
Washington Act] is punitive as applied, Young alleged facts
which, if proved, would entitle him to relief.” 192 F. 3d, at
875. The court remanded the case to the District Court for
a hearing to determine whether the conditions at the Center
rendered the Act punitive as applied to Young. Id., at 876.
This Court granted the petition for a writ of certiorari,
529 U. S. 1017 (2000), to resolve the conflict between the
Ninth Circuit Court of Appeals and the Washington Su-
preme Court. Compare 192 F. 3d 870 (1999), with In re
Turay, 139 Wash. 2d 379, 986 P. 2d 790 (1999).
II
As the Washington Supreme Court held and the Ninth
Circuit acknowledged, we proceed on the understanding that
the Washington Act is civil in nature. The Washington Act
is strikingly similar to a commitment scheme we reviewed

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four Terms ago in Kansas v. Hendricks, 521 U. S. 346 (1997).
In fact, Kansas patterned its Act after Washington’s. See
In re Hendricks, 259 Kan. 246, 249, 912 P. 2d 129, 131 (1996).
In Hendricks, we explained that the question whether an
Act is civil or punitive in nature is initially one of statutory
construction. 521 U. S., at 361 (citing Allen v. Illinois, 478
U. S. 364, 368 (1986)). A court must ascertain whether the
legislature intended the statute to establish civil proceed-
ings. A court will reject the legislature’s manifest intent
only where a party challenging the Act provides the clearest
proof that the statutory scheme is so punitive in either pur-
pose or effect as to negate the State’s intention. 521 U. S.,
at 361 (citing United States v. Ward, 448 U. S. 242, 248–249
(1980)). We concluded that the confined individual in that
case had failed to satisfy his burden with respect to the Kan-
sas Act. We noted several factors: The Act did not implicate
retribution or deterrence; prior criminal convictions were
used as evidence in the commitment proceedings, but were
not a prerequisite to confinement; the Act required no finding
of scienter to commit a person; the Act was not intended to
function as a deterrent; and although the procedural safe-
guards were similar to those in the criminal context, they did
not alter the character of the scheme. 521 U. S., at 361–365.
We also examined the conditions of confinement provided
by the Act. Id., at 363–364. The Court was aware that
sexually violent predators in Kansas were to be held in a
segregated unit within the prison system. Id., at 368. We
explained that the Act called for confinement in a secure
facility because the persons confined were dangerous to the
community. Id., at 363. We noted, however, that condi-
tions within the unit were essentially the same as conditions
for other involuntarily committed persons in mental hospi-
tals. Ibid. Moreover, confinement under the Act was not
necessarily indefinite in duration. Id., at 364. Finally, we
observed that in addition to protecting the public, the Act
also provided treatment for sexually violent predators. Id.,

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at 365–368. We acknowledged that not all mental conditions
were treatable. For those individuals with untreatable con-
ditions, however, we explained that there was no federal con-
stitutional bar to their civil confinement, because the State
had an interest in protecting the public from dangerous indi-
viduals with treatable as well as untreatable conditions.
Id., at 366. Our conclusion that the Kansas Act was “non-
punitive thus remove[d] an essential prerequisite for both
Hendricks’ double jeopardy and ex post facto claims.” Id.,
at 369.
Since deciding Hendricks, this Court has reaffirmed the
principle that determining the civil or punitive nature of
an Act must begin with reference to its text and legislative
history. Hudson v. United States, 522 U. S. 93 (1997). In
Hudson, which involved a double jeopardy challenge to mon-
etary penalties and occupational debarment, this Court ex-
pressly disapproved of evaluating the civil nature of an Act
by reference to the effect that Act has on a single individual.
Instead, courts must evaluate the question by reference to a
variety of factors “ ‘considered in relation to the statute on
its face’ ”; the clearest proof is required to override legisla-
tive intent and conclude that an Act denominated civil is
punitive in purpose or effect. Id., at 100 (quoting Kennedy
v. Mendoza-Martinez, 372 U. S. 144, 169 (1963)).
With this in mind, we turn to the Court of Appeals’ deter-
mination that respondent could raise an “as-applied” chal-
lenge to the Act on double jeopardy and ex post facto
grounds and seek release from confinement. Respondent
essentially claims that the conditions of his confinement at
the Center are too restrictive, that the conditions are incom-
patible with treatment, and that the system is designed to
result in indefinite confinement. Respondent’s claims are in
many respects like the claims presented to the Court in Hen-
dricks, where we concluded that the conditions of confine-
ment were largely explained by the State’s goal to incapaci-
tate, not to punish. 521 U. S., at 362–368. Nevertheless,

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we do not deny that some of respondent’s allegations are
serious. Nor do we express any view as to how his allega-
tions would bear on a court determining in the first instance
whether Washington’s confinement scheme is civil. Here,
we evaluate respondent’s allegations as presented in a double
jeopardy and ex post facto challenge under the assumption
that the Act is civil.
We hold that respondent cannot obtain release through an
“as-applied” challenge to the Washington Act on double jeop-
ardy and ex post facto grounds. We agree with petitioner
that an “as-applied” analysis would prove unworkable. Such
an analysis would never conclusively resolve whether a par-
ticular scheme is punitive and would thereby prevent a final
determination of the scheme’s validity under the Double
Jeopardy and Ex Post Facto Clauses. Brief for Petitioner
30; Reply Brief for Petitioner 9. Unlike a fine, confinement
is not a fixed event. As petitioner notes, it extends over
time under conditions that are subject to change. The par-
ticular features of confinement may affect how a confinement
scheme is evaluated to determine whether it is civil rather
than punitive, but it remains no less true that the query must
be answered definitively. The civil nature of a confinement
scheme cannot be altered based merely on vagaries in the
implementation of the authorizing statute.
Respondent contends that the Ninth Circuit’s “as-applied”
analysis comports with this Court’s precedents. He points
out that this Court has considered conditions of confinement
in evaluating the validity of confinement schemes in the past.
Brief for Respondent 11–16, 29 (citing Hendricks, supra, at
363; Reno v. Flores, 507 U. S. 292, 301–302 (1993); United
States v. Salerno, 481 U. S. 739, 747–748 (1987); Allen v. Illi-
nois, supra, at 373–374; Schall v. Martin, 467 U. S. 253, 269–
273 (1984)). All of those cases, however, presented the ques-
tion whether the Act at issue was punitive. Permitting
respondent’s as-applied challenge would invite an end run
around the Washington Supreme Court’s decision that the

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264 SELING v. YOUNG
Opinion of the Court
Act is civil in circumstances where a direct attack on that
decision is not before this Court.
Justice Thomas, concurring in the judgment, takes issue
with our view that the question before the Court concerns
an as-applied challenge to a civil Act. He first contends that
respondent’s challenge is not a true “as-applied” challenge
because respondent does not claim that the statute “ ‘by its
own terms’ is unconstitutional as applied . . . but rather that
the statute is not being applied according to its terms at all.”
Post, at 271. We respectfully disagree. The Act requires
“adequate care and individualized treatment,” Wash. Rev.
Code § 71.09.080(2) (Supp. 2000), but the Act is silent with
respect to the confinement conditions required at the Center,
and that is the source of many of respondent’s complaints,
see supra, at 259–260. Justice Thomas next contends that
we incorrectly assume that the Act is civil, instead of view-
ing the Act as “ ‘otherwise . . . civil,’ or civil ‘on its face.’ ”
Post, at 270 (emphasis added by Thomas, J.). However the
Washington Act is described, our analysis in this case turns
on the prior finding by the Washington Supreme Court that
the Act is civil, and this Court’s decision in Hendricks that
a nearly identical Act was civil. Petitioner could not have
claimed that the Washington Act is “otherwise” or “facially”
civil without relying on those prior decisions.
In dissent, Justice Stevens argues that we “incorrectly
assum[e]” that the Act is “necessarily civil,” post, at 275, but
the case has reached this Court under that very assumption.
The Court of Appeals recognized that the Act is civil, and
treated respondent’s claim as an individual, “as-applied”
challenge to the Act. The Court of Appeals then remanded
the case to the District Court for an evidentiary hearing to
determine respondent’s conditions of confinement. Con-
trary to the dissent’s characterization of the case, the Court
of Appeals did not purport to undermine the validity of the
Washington Act as a civil confinement scheme. The court
did not conclude that respondent’s allegations, if substanti-

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265 Cite as: 531 U. S. 250 (2001)
Opinion of the Court
ated, would be sufficient to refute the Washington Supreme
Court’s conclusion that the Act is civil, and to require the
release of all those confined under its authority. The Ninth
Circuit addressed only respondent’s individual case, and we
do not decide claims that are not presented by the decision
below. Matsushita Elec. Industrial Co. v. Epstein, 516
U. S. 367, 379 (1996). We reject the Ninth Circuit’s “as-
applied” analysis for double jeopardy and ex post facto claims
as fundamentally flawed.
III
Our decision today does not mean that respondent and oth-
ers committed as sexually violent predators have no remedy
for the alleged conditions and treatment regime at the Cen-
ter. The text of the Washington Act states that those con-
fined under its authority have the right to adequate care and
individualized treatment. Wash. Rev. Code § 71.09.080(2)
(Supp. 2000); Brief for Petitioner 14. As petitioner acknowl-
edges, if the Center fails to fulfill its statutory duty, those
confined may have a state law cause of action. Tr. of Oral
Arg. 6, 10–11, 52. It is for the Washington courts to deter-
mine whether the Center is operating in accordance with
state law and provide a remedy.
State courts, in addition to federal courts, remain compe-
tent to adjudicate and remedy challenges to civil confinement
schemes arising under the Federal Constitution. As noted
above, the Washington Supreme Court has already held that
the Washington Act is civil in nature, designed to incapaci-
tate and to treat. In re Young, 122 Wash. 2d, at 18–25, 857
P. 2d, at 996–1000. Accordingly, due process requires that
the conditions and duration of confinement under the Act
bear some reasonable relation to the purpose for which per-
sons are committed. Foucha v. Louisiana, 504 U. S. 71, 79
(1992); Youngberg v. Romeo, 457 U. S. 307, 324 (1982); Jack-
son v. Indiana, 406 U. S. 715, 738 (1972).
Finally, we note that a § 1983 action against the Center is
pending in the Western District of Washington. See supra,

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266 SELING v. YOUNG
Opinion of the Court
at 257. The Center operates under an injunction that re-
quires it to adopt and implement a plan for training and hir-
ing competent sex offender therapists; to improve relations
between residents and treatment providers; to implement a
treatment program for residents containing elements re-
quired by prevailing professional standards; to develop indi-
vidual treatment programs; and to provide a psychologist
or psychiatrist expert in the diagnosis and treatment of sex
offenders to supervise the staff. App. 67. A Special Mas-
ter has assisted in bringing the Center into compliance with
the injunction. In its most recent published opinion on the
matter, the District Court noted some progress at the Center
in meeting the requirements of the injunction. Turay v.
Seling, 108 F. Supp. 2d, at 1154–1155.
This case gives us no occasion to consider how the civil
nature of a confinement scheme relates to other constitu-
tional challenges, such as due process, or to consider the ex-
tent to which a court may look to actual conditions of con-
finement and implementation of the statute to determine in
the first instance whether a confinement scheme is civil in
nature. Justice Scalia, concurring, contends that condi-
tions of confinement are irrelevant to determining whether
an Act is civil unless state courts have interpreted the Act
as permitting those conditions. By contrast, Justice Ste-
vens would consider conditions of confinement at any time
in order to gain “full knowledge of the effects of the statute.”
Post, at 277.
Whether a confinement scheme is punitive has been the
threshold question for some constitutional challenges. See,
e. g., Kansas v. Hendricks, 521 U. S. 346 (1997) (double jeop-
ardy and ex post facto); United States v. Salerno, 481 U. S.
739 (1987) (due process); Allen v. Illinois, 478 U. S. 364 (1986)
(Fifth Amendment privilege against self-incrimination).
Whatever these cases may suggest about the relevance of
conditions of confinement, they do not endorse the approach
of the dissent, which would render the inquiry into the “ef-

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267 Cite as: 531 U. S. 250 (2001)
Scalia, J., concurring
fects of the statute,” post, at 277, completely open ended. In
one case, the Court refused to consider alleged confinement
conditions because the parties had entered into a consent
decree to improve conditions. Flores, 507 U. S., at 301.
The Court presumed that conditions were in compliance with
the requirements of the consent decree. Ibid. In another
case, the Court found that anecdotal case histories and a sta-
tistical study were insufficient to render a regulatory con-
finement scheme punitive. Martin, 467 U. S., at 272. In
such cases, we have decided whether a confinement scheme
is punitive notwithstanding the inherent difficulty in ascer-
taining current conditions and predicting future events.
We have not squarely addressed the relevance of condi-
tions of confinement to a first instance determination, and
that question need not be resolved here. An Act, found to
be civil, cannot be deemed punitive “as applied” to a single
individual in violation of the Double Jeopardy and Ex Post
Facto Clauses and provide cause for release.
The judgment of the United States Court of Appeals for
the Ninth Circuit is therefore reversed, and the case is re-
manded for further proceedings consistent with this opinion.
It is so ordered.
Justice Scalia, with whom Justice Souter joins,
concurring.
I agree with the Court’s holding that a statute, “found to
be civil [in nature], cannot be deemed punitive” or criminal
“as applied” for purposes of the Ex Post Facto and Double
Jeopardy Clauses. Ante this page. The Court accurately
observes that this holding gives us “no occasion to consider
. . . the extent to which a court may look to actual conditions
of confinement and implementation of the statute to deter-
mine in the first instance whether a confinement scheme is
civil in nature.” Ante, at 266. I write separately to dissoci-
ate myself from any implication that this reserved point may
be an open question. I do not regard it as such since, three

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268 SELING v. YOUNG
Scalia, J., concurring
years ago, we rejected a similar double jeopardy challenge
(based upon the statute’s implementation “as applied” to the
petitioners), where the statute had not yet been determined
to be civil in nature, and where we were making that deter-
mination “in the first instance.” See Hudson v. United
States, 522 U. S. 93 (1997). To be consistent with the most
narrow holding of that case (which, unlike this one, did not
involve imposition of confinement), any consideration of sub-
sequent implementation in the course of making a “first in-
stance” determination cannot extend to all subsequent im-
plementation, but must be limited to implementation of
confinement, and of other impositions that are “not a fixed
event,” ante, at 263. That, however, would be a peculiar
limitation, since even “fixed events” such as the imposition
of a fine can, in their implementation, acquire penal aspects—
exemplified in Hudson by the allegedly punitive size of the
fines, and by the availability of reduction for “good-faith” vio-
lations, see 522 U. S., at 97–98, 104. Moreover, the language
and the reasoning of Hudson leave no room for such a pecu-
liar limitation.
In that case, the petitioners contended that the punitive
nature of the statute that had been applied to them could be
assessed by considering the aforementioned features of the
fines. We flatly rejected that contention, which found sup-
port in our prior decision in United States v. Halper, 490
U. S. 435 (1989). Halper, we said, had erroneously made a
“significant departure” from our prior jurisprudence, in
deciding “to ‘asses[s] the character of the actual sanctions
imposed,’ 490 U. S., at 447, rather than, as Kennedy [v.
Mendoza-Martinez, 372 U. S. 144 (1963),] demanded, evaluat-
ing the ‘statute on its face’ to determine whether it provided
for what amounted to a criminal sanction, [id.], at 169.” 522
U. S., at 101. The Kennedy factors, we said, “ ‘must be con-
sidered in relation to the statute on its face,’ ” 522 U. S., at
100, quoting from Kennedy v. Mendoza-Martinez, 372 U. S.
144, 169 (1963). We held that “[t]he fact that petitioners’

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269 Cite as: 531 U. S. 250 (2001)
Scalia, J., concurring
‘good faith’ was considered in determining the amount of the
penalty to be imposed in this case [a circumstance that would
normally indicate the assessment is punitive] is irrelevant,
as we look only to ‘the statute on its face’ to determine
whether a penalty is criminal in nature.” Hudson, supra,
at 104, quoting Kennedy, supra, at 169. We repeated, to be
sure, the principle that the statutory scheme would be crimi-
nal if it was sufficiently punitive “ ‘either in purpose or ef-
fect,’ ” Hudson, supra, at 99 (emphasis added), quoting
United States v. Ward, 448 U. S. 242, 248–249 (1980), but it
was clear from the opinion that this referred to effects appar-
ent upon the face of the statute.
The short of the matter is that, for Double Jeopardy and
Ex Post Facto Clause purposes, the question of criminal pen-
alty vel non depends upon the intent of the legislature;* and
harsh executive implementation cannot “transfor[m] what
was clearly intended as a civil remedy into a criminal pen-
alty,” Rex Trailer Co. v. United States, 350 U. S. 148, 154
(1956), any more than compassionate executive implementa-
tion can transform a criminal penalty into a civil remedy.
This is not to say that there is no relief from a system that
administers a facially civil statute in a fashion that would
render it criminal. The remedy, however, is not to invali-
date the legislature’s handiwork under the Double Jeopardy
Clause, but to eliminate whatever excess in administration
contradicts the statute’s civil character. When, as here, a
state statute is at issue, the remedy for implementation that
does not comport with the civil nature of the statute is resort
to the traditional state proceedings that challenge unlawful
executive action; if those proceedings fail, and the state
*Hudson v. United States, 522 U. S. 93 (1997), addressed only the Double
Jeopardy Clause. Since, however, the very wording of the Ex Post Facto
Clause—“No State shall . . . pass any . . . ex post facto Law,” U. S. Const.,
Art. I, § 10, cl. 1 (emphases added)—leaves no doubt that it is a prohibition
upon legislative action, the irrelevance of subsequent executive implemen-
tation to that constitutional question is, if anything, even clearer.

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270 SELING v. YOUNG
Thomas, J., concurring in judgment
courts authoritatively interpret the state statute as permit-
ting impositions that are indeed punitive, then and only then
can federal courts pronounce a statute that on its face is civil
to be criminal. Such an approach protects federal courts
from becoming enmeshed in the sort of intrusive inquiry into
local conditions at state institutions that are best left to the
State’s own judiciary, at least in the first instance. And it
avoids federal invalidation of state statutes on the basis of
executive implementation that the state courts themselves,
given the opportunity, would find to be ultra vires. Only
this approach, it seems to me, is in accord with our sound
and traditional reluctance to be the initial interpreter of
state law. See Railroad Comm’n of Tex. v. Pullman Co.,
312 U. S. 496, 500–501 (1941).
With this clarification, I join the opinion of the Court.
Justice Thomas, concurring in the judgment.
We granted certiorari to decide whether “an otherwise
valid civil statute can be divested of its civil nature” simply
because of an administrative agency’s failure to implement
the statute according to its terms. Pet. for Cert. i (emphasis
added). The majority declines to answer this question. In-
stead, it assumes that the statute at issue is civil—rather
than “otherwise . . . civil,” or civil “on its face.” Young v.
Weston, 122 F. 3d 38 (CA9 1997). And then it merely holds
that a statute that is civil cannot be deemed the opposite of
civil—“punitive,” as the majority puts it—as applied to a sin-
gle individual. Ante, at 267. In explaining this conclusion,
the majority expressly reserves judgment on whether the
manner of implementation should affect a court’s assessment
of a statute as civil in the “first instance.” Ante, at 263, 267.
I write separately to express my view, first, that a statute
which is civil on its face cannot be divested of its civil nature
simply because of the manner in which it is implemented,
and second, that the distinction between a challenge in the

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Thomas, J., concurring in judgment
“first instance” and a subsequent challenge is one without
a difference.
Before proceeding, it is important to clarify the issue in
this case. The majority adopts the Ninth Circuit’s nomen-
clature and refers to respondent’s claim as an “as-applied”
challenge, see, e. g., ante, at 263, but that label is at best
misleading. Typically an “as-applied” challenge is a claim
that a statute, “by its own terms, infringe[s] constitutional
freedoms in the circumstances of [a] particular case.”
United States v. Christian Echoes Nat. Ministry, Inc., 404
U. S. 561, 565 (1972) (per curiam) (emphasis added). In con-
trast, respondent’s claim is not that Washington’s Commu-
nity Protection Act of 1990 (Washington Act or Act), Wash.
Rev. Code § 71.09.010 et seq. (1992), “by its own terms” is
unconstitutional as applied to him,1 but rather that the stat-
ute is not being applied according to its terms at all.2 Re-
spondent essentially contends that the actual conditions of
confinement, notwithstanding the text of the statute, are pu-
nitive and incompatible with the Act’s treatment purpose.
See ante, at 259–260.
1 Respondent has made the claim that the terms of the Washington Act
are criminal so that his confinement under the Act thus violates the Dou-
ble Jeopardy and Ex Post Facto Clauses, but this claim was rejected
below—first by the Washington Supreme Court, In re Young, 122 Wash.
2d 1, 18–23, 857 P. 2d 989, 996–999 (1993), and then by the Ninth Circuit,
Young v. Weston, 192 F. 3d 870, 874 (1999)—and has not been presented
to this Court.
2 Disagreeing with this characterization, the majority contends that the
statute is silent with respect to conditions of confinement. See ante, at
264. Even if the majority were correct—which it is not, see Wash. Rev.
Code § 71.09.070 (requiring annual examinations of each person’s mental
conditions); § 71.09.080(2) (Supp. 2000) (requiring “adequate care and indi-
vidualized treatment”); see also In re Young, supra, at 18–23, 857 P. 2d,
at 996–999 (discussing similar provisions on conditions of confinement in
1990 version of Washington Act)—the question on which we granted cer-
tiorari expressly assumes that the statute “mandate[s]” the “conditions of
confinement” that petitioner seeks. See Pet. for Cert. i.

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272 SELING v. YOUNG
Thomas, J., concurring in judgment
A challenge, such as this one, to the implementation of a
facially civil statute is not only “unworkable,” as the majority
puts it, ante, at 263, but also prohibited by our decision in
Hudson v. United States, 522 U. S. 93 (1997). In Hudson,
we held that, when determining whether a statute is civil or
criminal, a court must examine the “statute on its face.”
Id., at 101, quoting Kennedy v. Mendoza-Martinez, 372 U. S.
144, 169 (1963) (internal quotation marks omitted). In so
holding, we expressly disavowed the approach used in
United States v. Halper, 490 U. S. 435, 448 (1989), which eval-
uated the “actual sanctions imposed.” 522 U. S., at 101,
quoting Halper, supra, at 447 (internal quotation marks
omitted). Respondent’s claim is flatly inconsistent with the
holding of Hudson because respondent asks us to look be-
yond the face of the Washington Act and to examine instead
the actual sanctions imposed on him, that is, the actual condi-
tions of confinement. Respondent argues, and the Ninth
Circuit held, that Hudson’s reach is limited to the particular
sanctions involved in that case—monetary penalties and oc-
cupational disbarment—and does not apply here, where the
sanction is confinement. Hudson, however, contains no in-
dication whatsoever that its holding is limited to the specific
sanctions at issue. To the contrary, as we explained in Hud-
son, a court may not elevate to dispositive status any of the
factors that it may consider in determining whether a sanc-
tion is criminal.3 522 U. S., at 101. One of these nondispos-
3 The Hudson Court referred to the seven factors listed in Kennedy
v. Mendoza-Martinez, 372 U. S. 144 (1963), as “useful guideposts”: “(1)
whether the sanction involves an affirmative disability or restraint; (2)
whether it has historically been regarded as a punishment; (3) whether it
comes into play only on a finding of scienter; (4) whether its operation will
promote the traditional aims of punishment—retribution and deterrence;
(5) whether the behavior to which it applies is already a crime; (6) whether
an alternative purpose to which it may rationally be connected is assign-
able for it; and (7) whether it appears excessive in relation to the alterna-
tive purpose assigned.” 522 U. S., at 99–100, quoting Mendoza-Martinez,
supra, at 168–169 (internal quotation marks and alteration omitted).

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Thomas, J., concurring in judgment
itive factors is confinement. Id., at 99 (stating that one of
the factors is “[w]hether the sanction involves an affirmative
disability or restraint,” quoting Mendoza-Martinez, supra,
at 168 (internal quotation marks omitted)). Yet elevating
confinement to dispositive status is exactly what respondent
asks us to do when he advances his distinction between con-
finement and other sanctions. Because Hudson rejects such
an argument, respondent’s claim fails.
An implementation-based challenge to a facially civil stat-
ute would be as inappropriate in reviewing the statute in the
“first instance,” ante, at 263, 267 (majority opinion), as it is
here. In the first instance, as here, there is no place for such
a challenge in the governing jurisprudence. Hudson, which
requires courts to look at the face of the statute, precludes
implementation-based challenges at any time. Moreover,
the implementation-based claim would be as “unworkable,”
ante, at 263 (majority opinion), in the first instance as in later
challenges. Because the actual conditions of confinement
may change over time and may vary from facility to facility,
an implementation-based challenge, if successful, would
serve to invalidate a statute that may be implemented
without any constitutional infirmities at a future time or
in a separate facility. To use the majority’s words, the
validity of a statute should not be “based merely on va-
garies in the implementation of the authorizing statute.”
Ibid.
And yet the majority suggests that courts may be able to
consider conditions of confinement in determining whether a
statute is punitive. Ante, at 263, 266. To the extent that
the conditions are actually provided for on the face of the
statute, I of course agree. Cf. Hudson, supra, at 101 (direct-
ing courts to look at “ ‘the statute on its face’ ”). However,
to the extent that the conditions result from the fact that
the statute is not being applied according to its terms, the
conditions are not the effect of the statute, but rather the

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274 SELING v. YOUNG
Stevens, J., dissenting
effect of its improper implementation.4 A suit based on
these conditions cannot prevail.
* * *
The Washington Act does not provide on its face for puni-
tive conditions of confinement, and the actual conditions
under which the Act is implemented are of no concern to our
inquiry. I therefore concur in the judgment of the Court.
Justice Stevens, dissenting.
A sexual predator may be imprisoned for violating the law,
and, if he is mentally ill, he may be committed to an institu-
tion until he is cured. Whether a specific statute authoriz-
ing the detention of such a person is properly viewed as
“criminal” or “civil” in the context of federal constitutional
issues is often a question of considerable difficulty. See
Kansas v. Hendricks, 521 U. S. 346 (1997) (reversing, by a
5-to-4 vote, a decision of the Kansas Supreme Court invali-
4 The dissent argues that, “under the majority’s analysis, there is no
inquiry beyond that of statutory construction,” post, at 276 (opinion of
Stevens, J.). Although it is unclear to me whether the dissent is correct
on this score, I hope that state and federal courts so interpret the majority
opinion. For even if the majority opinion does not preclude venturing
beyond the face of the statute, Hudson certainly does. See Hudson, 522
U. S., at 101 (holding that courts must examine a statute “ ‘on its face’ ”
and may not consider the “ ‘actual sanctions imposed’ ”); supra, at 272.
To dispel any suggestion to the contrary, ante, at 261–262, 263, 266
(majority opinion); post, at 275 (Stevens, J., dissenting), I note that Kan-
sas v. Hendricks, 521 U. S. 346 (1997), does not provide support for
implementation-based challenges. In Hendricks, “none of the parties
argue[d] that people institutionalized under the . . . civil commitment stat-
ute are subject to punitive conditions.” Id., at 363. The viability of an
implementation-based challenge was simply not at issue. And signifi-
cantly, six months after Hendricks, we held in Hudson that inquiries into
whether a statute is civil are restricted to the “face” of the statute. Hud-
son, supra, at 101. To the extent that Hendricks (or any previous opin-
ion, ante, at 266 (majority opinion)) left a door open by not answering the
implementation question, Hudson closed that door.

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Stevens, J., dissenting
dating Kansas’ Sexually Violent Predator Act); Allen v. Illi-
nois, 478 U. S. 364 (1986) (upholding, by a 5-to-4 vote, Illinois’
Sexually Dangerous Persons Act); In re Young, 122 Wash. 2d
1, 857 P. 2d 989 (1993) (en banc) (upholding, by a 5-to-4 vote,
the provisions of Washington’s Community Protection Act of
1990 dealing with sexually violent predators).
It is settled, however, that the question whether a state
statute is civil or criminal in nature for purposes of com-
plying with the demands of the Federal Constitution is a
question of federal law. If a detainee comes forward with
“ ‘the clearest proof ’ that ‘the statutory scheme [is] so puni-
tive either in purpose or effect as to negate [the State’s]
intention’ that the proceeding be civil, it must be considered
criminal.” Allen, 478 U. S., at 369 (quoting United States v.
Ward, 448 U. S. 242, 248–249 (1980)) (emphasis added). See
also Hudson v. United States, 522 U. S. 93, 100, 105 (1997).
Accordingly, we have consistently looked to the conditions of
confinement as evidence of both the legislative purpose be-
hind the statute and its actual effect. See Hendricks, 521
U. S., at 361, 367–369; Schall v. Martin, 467 U. S. 253, 269–
271 (1984); Allen, 478 U. S., at 369, 373–374. As we have
acknowledged in those cases, the question whether a statute
is in fact punitive cannot always be answered solely by refer-
ence to the text of the statute.
The majority in this case, however, incorrectly assumes
that the Act at issue is necessarily civil. The issue the ma-
jority purports to resolve is whether an Act that is otherwise
civil in nature can be deemed criminal in a specific instance
based on evidence of its application to a particular prisoner.
However, respondent Young’s petition did not present that
issue. Rather, consistent with our case law, Young sought
to introduce evidence of the conditions of confinement as evi-
dence of the punitive purpose and effect of the Washington
statute. See Amended Pet. for Writ of Habeas Corpus 6 and
Supp. Brief on Remand 2, 6, 10–11, in No. C94–480C (WD
Wash.), Record, Doc. Nos. 57, 155. As a result, Young in no

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276 SELING v. YOUNG
Stevens, J., dissenting
way runs afoul of Hudson v. United States, 522 U. S. 93
(1997). Properly read, Hudson acknowledges that resolving
whether an Act is civil or criminal in nature can take into
account whether the statutory scheme has a punitive effect.1
Id., at 99. What Hudson rejects is an approach not taken
by respondent—one that bypasses this threshold question in
favor of a dispositive focus on the sanction actually imposed
on the specific individual.2 Id., at 101–102.
To be sure, the question whether an Act is civil or punitive
in nature “is initially one of statutory construction.” Ante,
at 261 (majority opinion). However, under the majority’s
analysis, there is no inquiry beyond that of statutory con-
struction. Ante, at 263. In essence, the majority argues
that because the constitutional query must be answered de-
finitively and because confinement is not a “fixed event,” con-
ditions of confinement should not be considered at all, except
in the first challenge to a statute, when, as a practical matter,
1 In his concurrence, Justice Scalia concludes that, under the rule of
Hudson v. United States, 522 U. S. 93 (1997), courts may never look to
actual conditions of confinement and implementation of the statute to de-
termine in the first instance whether a confinement scheme is civil in na-
ture. See ante, at 267–268. Justice Thomas, concurring in the judg-
ment, would take Hudson even further, precluding implementation-based
challenges “at any time.” Ante, at 273. However, for the reasons set out
above, I believe that both concurrences misread Hudson. I also note that
Hudson did not involve confinement. In cases that do involve confine-
ment, this Court has relied on the principle that a statutory scheme must
be deemed criminal if it was sufficiently punitive “ ‘either in purpose or
effect.’ ” See Kansas v. Hendricks, 521 U. S. 346, 361, 367–369 (1997);
Schall v. Martin, 467 U. S. 253, 269–271 (1984); Allen v. Illinois, 478 U. S.
364, 369, 373–374 (1986).
2 In response to my dissent, the Court has made it clear that it is simply
holding that respondent may not prevail if he merely proves that the stat-
ute is punitive insofar as it has been applied to him. The question
whether he may prevail if he can prove that the statute is punitive in its
application to everyone confined under its provisions therefore remains
open. In sum, the Court has rejected the narrow holding of the Ninth
Circuit, but has not addressed the sufficiency of the broadest claim that
petitioner has advanced.

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277 Cite as: 531 U. S. 250 (2001)
Stevens, J., dissenting
the evidence of such conditions is most likely not to consti-
tute the requisite “clearest proof.” This seems to me quite
wrong. If conditions of confinement are such that a detainee
has been punished twice in violation of the Double Jeopardy
Clause, it is irrelevant that the scheme has been previously
labeled as civil without full knowledge of the effects of the
statute.3
In this case, Young has made detailed allegations concern-
ing both the absence of treatment for his alleged mental ill-
ness and the starkly punitive character of the conditions of
his confinement. If proved, those allegations establish not
just that those detained pursuant to the statute are treated
like those imprisoned for violations of Washington’s criminal
laws, but that, in many respects, they receive significantly
worse treatment.4 If those allegations are correct, the stat-
ute in question should be characterized as a criminal law for
federal constitutional purposes. I therefore agree with the
Court of Appeals’ conclusion that respondent should be given
the opportunity to come forward with the “clearest proof ”
that his allegations are true.
Accordingly, I respectfully dissent.
3 In this case, those detained pursuant to Washington’s statute have
sought an improvement in conditions for almost seven years. Their suc-
cess in the courts, however, has had little practical impact.
4 Under such conditions, Young has now served longer in prison follow-
ing the completion of his sentence than he did on the sentence itself.