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A. 1. a.(1)(a) i) a) I A 1 a (1)(a) i) a)@@2w]GToTHHVXBQck QuoteSingle spaced indented quote - Circv C   (  Cd  ( ( ( FTNFormats for each footnote,  X` hp x (#%'0*,.8135@8: ԚFactoĠClauses are violated. We are unpersuaded by Hendricks' argument that Kansas has established criminal proceedings.  The categorization of a particular proceeding as civil or criminal is first of all a question of statutory  Jv construction. Allen, 478 U.S., at 368. We must initially ascertain whether the legislature meant the statute to establish civil proceedings. If so, we  J ordinarily defer to the legislature's stated intent. Here, Kansas' objective to create a civil proceeding is evidenced by its placement of the Sexually Violent Predator Act within the Kansas probate code, instead of the criminal code, as well as its description of the Act as  J6 creating a civil commitment procedure. Kan. Stat.  J Ann., Article 29 (1994) ( Care and Treatment for  J Mentally Ill Persons), Ě59!29a01 (emphasis added). Nothing on the face of the statute suggests that the legislature sought to create anything other than a civil commitment scheme designed to protect the public from harm.  Although we recognize that a civil label is not always "    J dispositive, Allen, supra, at 369, we will reject the legislature's manifest intent only where a party challenging the statute provides the clearest proof that the statutory scheme [is] so punitive either in purpose or effect as to negate [the State's] intention to deem it  J8  civil. United States v. Ward, 448 U.S. 242, 248!249 (1980). In those limited circumstances, we will consider the statute to have established criminal proceedings for  J constitutional purposes. Hendricks, however, has failed  J to satisfy this heavy burden.  As a threshold matter, commitment under the Act does not implicate either of the two primary objectives ofcriminal punishment: retribution or deterrence. The Act's purpose is not retributive because it does not affix culpability for prior criminal conduct. Instead, such conduct is used solely for evidentiary purposes, either to demonstrate that a mental abnormality exists or to support a finding of future dangerousness. We have previously concluded that an Illinois statute was nonpunitive even though it was triggered by the commission of a sexual assault, explaining that evidence of the prior criminal conduct was received not to punish past misdeeds, but primarily to show the accused's mental  Jh condition and to predict future behavior. Allen,  J@ Ԛsupra,at 371. In addition, the Kansas Act does not  J make a criminal conviction a prerequisite for commitment"persons absolved of criminal responsibility may nonetheless be subject to confinement under the Act.  J See Kan. Stat. Ann. 59!29a03(a) (1994). An absence of the necessary criminal responsibility suggests that the State is not seeking retribution for a past misdeed. Thus, the fact that the Act may be tied to criminal activity is insufficient to render the statut[e] punitive.  J United States v. Ursery, 518 U. S. __ (1996) (slip op., at  J 24).   Moreover, unlike a criminal statute, no finding of scienter is required to commit an individual who is`"   found to be a sexually violent predator; instead, the commitment determination is made based on a mental abnormality or personality disorder rather than on one's criminal intent. The existence of a scienter requirement is customarily an important element in  J8 distinguishing criminal from civil statutes.  See Kennedy  J v. Mendoza-Martinez, 372 U.S. 144, 168 (1963). The absence of such a requirement here is evidence that confinement under the statute is not intended to be retributive.  Nor can it be said that the legislature intended the  JH Act to function as a deterrent. Those persons committed under the Act are, by definition, suffering from a mental abnormality or a personality disorder that prevents them from exercising adequate control over their behavior. Such persons are therefore unlikely to be deterred by the threat of confinement. And the conditions surrounding that confinement do not suggest a punitive purpose on the State's part. The State has represented that an individual confined under the Act is not subject to the more restrictive conditions placed on state prisoners, but instead experiences essentially the same conditions as any involuntarily committed patient in the state mental institution. App. 50!56, 59!60. Because none of the parties argues that people institutionalized under the Kansas general civil commitment statute are subject to punitive conditions, even though they may be involuntarily confined, it is difficult to conclude that persons confined under this Act are being punished.  Although the civil commitment scheme at issue here does involve an affirmative restraint, the mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punishment.  J United States v. Salerno, 481 U. S. 739, 746 (1987). The State may take measures to restrict the freedom of the dangerously mentally ill. This is a legitimate non`"  ԫpunitive governmental objective and has been historically  J so regarded. Cf. id., at 747. The Court has, in fact, cited the confinement of mentally unstable individuals who present a danger to the public as one classic  J` example of nonpunitive detention. Id., at 748!749. If detention for the purpose of protecting the community  J from harm necessarily constituted punishment, then all involuntary civil commitments would have to be considered punishment. But we have never so held.  Hendricks focuses on his confinement's potentially indefinite duration as evidence of the State's punitive intent. That focus, however, is misplaced. Far from any punitive objective, the confinement's duration is instead linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others. Cf.  J Jones, 463 U. S., at 368 (noting with approval that because it is impossible to predict how long it will take for any given individual to recover [from insanity]"or indeed whether he will ever recover"Congress has chosen ... to leave the length of commitment indeterminate, subject to periodic review of the patients's  J suitability for release). If, at any time, the confined person is adjudged safe to be at large, he is statutorily entitled to immediate release. Kan. Stat. Ann. 59!29a07 (1994).  Furthermore, commitment under the Act is only  J potentially indefinite. The maximum amount of time an individual can be incapacitated pursuant to a single judicial proceeding is one year. 59!29a08. If Kansas seeks to continue the detention beyond that year, a court must once again determine beyond a reasonable  J doubt that the detainee satisfies the same standards as  J required for the initial confinement. Ibid. This requirement again demonstrates that Kansas does not intend an individual committed pursuant to the Act to remain confined any longer than he suffers from a mental`"   abnormality rendering him unable to control his dangerousness.  J  Hendricks next contends that the State's use of procedural safeguards traditionally found in criminal trials makes the proceedings here criminal rather than civil.  J8 In Allen, we confronted a similar argument. There, the  J petitioner place[d] great reliance on the fact that proceedings under the Act are accompanied by procedural safeguards usually found in criminal trials to argue  J that the proceedings were civil in name only. 478 U. S., at 371. We rejected that argument, however, explaining that the State's decision to provide some of the safeguards applicable in criminal trials cannot itself turn  J these proceedings into criminal prosecutions. Id., at 372. The numerous procedural and evidentiary protections afforded here demonstrate that the Kansas Legislature has taken great care to confine only a narrow class of particularly dangerous individuals, and then only after meeting the strictest procedural standards. That Kansas chose to afford such procedural protections does not transform a civil commitment proceeding into a criminal prosecution.G  Finally, Hendricks argues that the Act is necessarily punitive because it fails to offer any legitimate treatment. Without such treatment, Hendricks asserts, confinement under the Act amounts to little more than disguised punishment. Hendricks' argument assumes that treatment for his condition is available, but that the State has failed (or refused) to provide it. The Kansas Supreme Court, however, apparently rejected this assumption, explaining: BQ (C  , , ( N N % It is clear that the overriding concern of the legislature is to continue the segregation of sexually violent offenders from the public. Treatment with the goal of reintegrating them into society is incidental, at best. The record reflects that treatment for sexually violent predators is all but nonexistent. "   The legislature concedes that sexually violent predators are not amenable to treatment under [the existing Kansas involuntary commitment statute]. If there is nothing to treat under [that statute], then there is no mental illness. In that light, the provisions of the Act for treatment appear somewhat disingenuous. 259 Kan., at 258, 912 P. 2d, at 136.BQ d   ( , , It is possible to read this passage as a determination  J$ that Hendricks' condition was untreatable under the existing Kansas civil commitment statute, and thus the Act's sole purpose was incapacitation. Absent a treatable mental illness, the Kansas court concluded, Hendricks could not be detained against his will.  Accepting the Kansas court's apparent determination that treatment is not possible for this category of individuals does not obligate us to adopt its legal conclusions. We have already observed that, under the appropriate circumstances and when accompanied by proper procedures, incapacitation may be a legitimate end of  Jl the civil law. See Allen, supra, at 373; Salerno, 481 U. S., at 748!749. Accordingly, the Kansas court's determination that the Act's overriding concern was the continued segregation of sexually violent offenders is consistent with our conclusion that the Act establishes civil proceedings, 259 Kan., at 258, 912 P. 2d, at 136, especially when that concern is coupled with the State's ancillary goal of providing treatment to those offenders, if such is possible. While we have upheld state civil commitment statutes that aim both to incapacitate and  J to treat, see Allen, supra, we have never held that the Constitution prevents a State from civilly detaining those for whom no treatment is available, but who nevertheless pose a danger to others. A State could hardly be seen as furthering a punitive purpose by involuntarily confining persons afflicted with an  J Ԛuntreatable, highly contagious disease. Accord  J ԚCompagnie Francaise de Navigation a Vapeur v. Louisi"  Ԯ J ana Bd. of Health, 186 U.S. 380 (1902) (permitting involuntary quarantine of persons suffering from communicable diseases). Similarly, it would be of little value to require treatment as a precondition for civil confinement of the dangerously insane when no acceptable treatment existed. To conclude otherwise would obligate a State to release certain confined individuals who were both mentally ill and dangerous simply because they could not be successfully treated for their afflictions. Cf.  J  , ! Greenwood v. United States, 350 U. S. 366, 375 (1956) ( The fact that at present there may be little likelihood of recovery does not defeat federal power to make this  J initial commitment of the petitioner); O'Connor v.  J Donaldson, 422 U.S. 563, 584 (1975) (Burger, C. J., concurring) ( [I]t remains a stubborn fact that there are many forms of mental illness which are not understood, some which are untreatable in the sense that no effective therapy has yet been discovered for them, and that rates of `cure' are generally low).  Alternatively, the Kansas Supreme Court's opinion can be read to conclude that Hendricks' condition is treatable, but that treatment was not the State's overriding concern, and that no treatment was being provided (at least at the time Hendricks was committed). 259 Kan.,  J@ at 258, 912 P. 2d, at 136. See also ibid. ( It is clear that the primary objective of the Act is to continue incarceration and not to provide treatment). Even if we accept this determination that the provision of treatment was not the Kansas Legislature's overriding or primary purpose in passing the Act, this does not rule out the possibility that an ancillary purpose of the Act was to provide treatment, and it does not require us to conclude that the Act is punitive. Indeed, critical language in the Act itself demonstrates that the Secretary of Social and Rehabilitation Services, under whose custody sexually violent predators are committed, has an obligation to provide treatment to individuals like`"   Hendricks. 59!29a07(a) ( If the court or jury determines that the person is a sexually violent predator, the person shall be committed to the custody of the secre J tary of social and rehabilitation services for control, care  J` and treatment until such time as the person's mental abnormality or personality disorder has so changed that the person is safe to be at large (emphasis added)). Other of the Act's sections echo this obligation to provide  J treatment for committed persons. See, e.g., 59!29a01 (establishing civil commitment procedure for the longterm care and treatment of the sexually violent predator); 59!29a09 (requiring the confinement to conform to constitutional requirements for care and treatment).  J Thus, as in Allen, the State has a statutory obligation to provide `care and treatment for [persons adjudged sexually dangerous] designed to effect recovery,' 478 U. S., at 369 (quoting Ill. Rev. Stat., ch. 38,  105!8 (1985)), and we may therefore conclude that the State has ... provided for the treatment of those it commits. 478 U. S., at 370.  Although the treatment program initially offered Hendricks may have seemed somewhat meager, it must be remembered that he was the first person committed under the Act. That the State did not have all of its treatment procedures in place is thus not surprising. What is significant, however, is that Hendricks was placed under the supervision of the Kansas Department of Health and Social and Rehabilitative Services, housed in a unit segregated from the general prison population and operated not by employees of the Department of  JP Corrections, but by other trained individuals.6P uB ԍWe have explained that the States enjoy wide latitude in developing  uBo treatment regimens. Youngberg v. Romeo, 457 U. S. 307, 317 (1982) (observing that the State has considerable discretion in determining the  uB nature and scope of its responsibilities). In Allen, for example, we  uB concluded that the State serves its purpose of treating rather than"## punishing sexually dangerous person by committing them to an institution expressly designed to provide psychiatric care and treatment.  uB 478 U.S., at 373 (emphasis in original omitted). By this measure, Kansas has doubtless satisfied its obligation to provide available treatment.6 And,P#"   before this Court, Kansas declared [a]bsolutely that persons committed under the Act are now receiving in the neighborhood of 31.5 hours of treatment per week.  J Tr. of Oral Arg. 14!15, 16.h# uB ԍIndeed, we have been informed that an August 28, 1995, hearing on  uB: Hendricks' petition for state habeas corpus relief, the trial court, over admittedly conflicting testimony, ruled that: [T]he allegation that no treatment is being provided to any of the petitioners or other persons committed to the program designated as a sexual predator treatment  uB program is not true. I find that they are receiving treatment. App. 453!454. Thus, to the extent that treatment is available for Hendricks' condition, the State now appears to be providing it. By furnishing such treatment, the Kansas Legislature has indicated that treatment, if possible, is at least an ancillary goal of the Act, which easily satisfies any test for determining that the Act is not punitive.h  Where the State has disavowed any punitive intent; limited confinement to a small segment of particularly dangerous individuals; provided strict procedural safeguards; directed that confined persons be segregated from the general prison population and afforded the same status as others who have been civilly committed; recommended treatment if such is possible; and permitted immediate release upon a showing that the individual is no longer dangerous or mentally impaired, we cannot say that it acted with punitive intent. We therefore hold that the Act does not establish criminal proceedings and that involuntary confinement pursuant to the Act is not punitive. Our conclusion that the Act is nonpunitive thus removes an essential prerequisite for  J0 both Hendricks' double jeopardy and ex post facto claims.  =H3 d "  Ԍd<1؃  2  The Double Jeopardy Clause provides: [N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb. Although generally understood to preclude a second prosecution for the same offense,  Jj the Court has also interpreted this prohibition to prevent the State from punishing twice, or attempting a second time to punish criminally, for the same  J offense. Witte v. United States, 515 U. S. 389, 396 (1995) (emphasis and internal quotation marks omitted). Hendricks argues that, as applied to him, the Act violates double jeopardy principles because his confinement under the Act, imposed after a conviction and a term of incarceration, amounted to both a second prosecution and a second punishment for the same offense. We disagree.  J  Because we have determined that the Kansas Act is civil in nature, initiation of its commitment proceedings  Jb does not constitute a second prosecution. Cf. Jones v.  J: United States, 463 U.S. 354 (1984) (permitting involuntary civil commitment after verdict of not guilty by reason of insanity). Moreover, as commitment under the Act is not tantamount to punishment, Hendricks' involuntary detention does not violate the Double Jeopardy Clause, even though that confinement may  JJ follow a prison term. Indeed, in Baxstrom v. Herold, 383 U. S. 107 (1966), we expressly recognized that civil commitment could follow the expiration of a prison term without offending double jeopardy principles. We reasoned that there is no conceivable basis for distinguishing the commitment of a person who is nearing the end of a penal term from all other civil commitments.  J2 ԚId., at 111!112. If an individual otherwise meets the requirements for involuntary civil commitment, the Stateis under no obligation to release that individual simply because the detention would follow a period of incarceration."  Ԍ Hendricks also argues that even if the Act survives the multiple punishments test, it nevertheless fails the  J  same elements test of Blockburger v. United States,  J 284 U.S. 299 (1932). Under Blockburger, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which  J the other does not. Id., at 304. The ÚBlockburger test, however, simply does not apply outside of the successive prosecution context. A proceeding under the Act does not define an offense, the elements of which can be compared to the elements of an offense for which the person may previously have been convicted. Nor does the Act make the commission of a specified offense the basis for invoking the commitment proceedings. Instead, it uses a prior conviction (or previously charged conduct) for evidentiary purposes to determine whether a person suffers from a mental abnormality or personality disorder and also poses a threat to the public. Accordingly, we are unpersuaded by Hendricks' novel applica J tion of the Blockburger test and conclude that the Act does not violate the Double Jeopardy Clause.  =H3 d d<2؃  J  2  Hendricks' ex post facto claim is similarly flawed. The  J Ex Post Facto Clause, which `forbids the application of any new punitive measure to a crime already consummated,' has been interpreted to pertain exclusively to  J6 penal statutes. California Dept. of Corrections v.  J Morales, 514 U.S. 499, 505 (1995) (quoting Lindsey v.  J Washington, 301 U.S. 397, 401 (1937)). As we have previously determined, the Act does not impose punish J ment; thus, its application does not raise ex post facto concerns. Moreover, the Act clearly does not have retroactive effect. Rather, the Act permits involuntary confinement based upon a determination that the person"    J currently both suffers from a mental abnormality or personality disorder and is likely to pose a future danger to the public. To the extent that past behavior is taken into account, it is used, as noted above, solely for evidentiary purposes. Because the Act does not criminalize conduct legal before its enactment, nor deprive Hendricks of any defense that was available to him at the time of his crimes, the Act does not violate  J the Ex Post Facto Clause.   9H1 d dy;III؃  2  We hold that the Kansas Sexually Violent Predator Act comports with due process requirements and neither runs afoul of double jeopardy principles nor constitutes  J an exercise in impermissible ex post facto lawmaking. Accordingly, the judgment of the Kansas Supreme Court is reversed.  J ` HIt is so ordered.ă