WPCtQ 2rBcRc Z3|["m^*2gwZZskkkkB{sssZZcJRRRkkkl_dRZ>\J\B\JlZoN21mRgR\lNaJlRsRSRYZB\BhVrNlRwgsg_BZ11RVVg_]Zk___________________BBBBBBBZZZZZZZZZZZZZZZZZZZZ111111111111RRRRRRRVVVVVVVVVVVVggggggggggggggggggggl\l2lhs2hR"m^36Gff%==\o3=33ffffffffff33oooQzKfzztzp=o=o\%ffQi\=bp:6m:p\ifQUGpbbbX=o=o=3============i:fffffQ\\\\K:K:K:K:p\\\\ppppbfi\\b\zifffQQQQi\\\\bbbbbbppK:K:K:K:fmz:z:z:z:z:pppp\\QQQtUtUtUtUzGzGzGppppppbpXpXpXiz:pQtUzGbbi\pNo3o\6QNNfff=7f=f=%GGf//\\pp%G=ooee3o<;o;rfolWSGrfffZAeAe8.888888888888f>fffff]````J>J>J>J>rffffrrrrxffoffxffofff]]]]o````ffffffrrJ>J>J>J>lox;x;x;x;x;rrrrffWWWoSoSoSoSxGxGxGrrrrrrxfoZoZoZox;rWoSxGxfxfofrNe.}S1SSS```==`9}}`9(PPS88SSrr(P9ee\\w.e77\\\wwweeeCe.wR)EreewwwwIeenR\\\wwwxio\eEfRfIfRxe|W87y\r\rxWlRx\\]\ceIfIs`Wx\rriIe77\``rigewiiiiiiiiiiiiiiiiiiiIIIIIIIeeeeeeeeeeeeeeeeeeee777777777777\\\\\\\````````````rrrrrrrrrrrrrrrrrrrrxfx8xs8s\"m^"",DDmR))0H")""DDDDDDDDDD""HHHD}RRYYRK`Y">RDfY`R`YRKYRtRRK""":DDD>DD"DD>fDDDD)>"D>Y>>>) )H)")){))))))))))K"RDRDRDRDRD{mY>RDRDRDRD""""""""YD`D`D`D`DYDYDYDYDR>RDYD`K`DR>YDRDRDRDRDY>Y>Y>Y>YDRDRDRDRD`D`D`D`D`D`DYDYD""""""">R>DDDDDYDYDYDYD`D`D{tY)Y)Y)R>R>R>R>K"K"K"YDYDYDYDYDYDtYR>K>K>K>YDDYDY)R>K"R>R>YD`DYDN+"BD)KDDDDD.-ggD)[[Dg)))D{))DD{>>{){)23ccm c"m^*,:SS}z22K[*2**SSSSSSSSSS**[[[Collluldu}=Sudzudul_dzljj\2[2[KSSCVK2Q\/,Y/\KVSCE:\QuQQH2[2[2*222222222222V/lSlSlSlSlSwlClKlKlKlK=/=/=/=/z\uKuKuKuKz\z\z\z\jQlSuVuKuKjQuKdVlSlSlSlClClClCuVlKlKlKlKuQuQuQuQuQuQ}\}\=/=/=/=/SuYd/d/d/d/d/z\z\z\z\uKuK}lClClC_E_E_E_Ed:d:d:z\z\z\z\z\z\ujQ\H\H\HuVd/z\lC_Ed:jQjQuVuKz\N[*[K,C@@SSS2-}}S2ooS}2::S''KK\\:2[[RRk*[11RRRkskk[ZZ<[){kJ%>gwZZskkkkB{sssZZcJRRRkkkl_dRZ>\J\B\JlZoN21mRgR\lNaJlRsRSRYZB\BhVrNlRwgsg_BZ11RVVg_]Zk___________________BBBBBBBZZZZZZZZZZZZZZZZZZZZ111111111111RRRRRRRVVVVVVVVVVVVggggggggggggggggggggl\l2lhs2hRNew Century SchoolbookNew Century Schoolbook BoldTimes RomanTimes Roman BoldHelvetica NarrowNew Century Schoolbook Italic"m^!$/CCdb((gwZZskkkkB{sssZZcJRRRkkklWdPZH\I\I\IlWoY2(mWgRklWaMlWs\SCYG\IhSr\lWw_s\_BZ11RVVg_]Zk___________________BBBBBBBZZZZZZZZZZZZZZZZZZZZ111111111111RRRRRRRVVVVVVVVVVVVggggggggggggggggggggl\l2lhs2hR22, ce c c+"%"m^3=Iff%==\o3=3offffffffff33oooQzKpzzz~~z=o=o\%ifQpQ=bp=:f=p\ifQQAp_\\U=o=o=3============f=iiiiiQQQQQK=K=K=K=p\\\\pppp~\ip\\~\\ziiiiQQQQpQQQQbbbbbbppK=K=K=K=pfz=z=z=z=z=pppp\\QQQzQzQzQzQ~A~A~Apppppp~\zUzUzUpz=pQzQ~A~\~\p\pNo3w\=QNNfffMDf=f=3GG\==\\pp%G=ooee3o<>RRR1,zzR1llRz199R&&IIZZ91YYQQi)Y00QQQiqiiYXX;Y(yiH$<euXXqiiii@yqqqXXaHQQQiiij]bQXgn|g|n|SR{nnnRRnnnnnnnRRRRRRRRRRRRSS2Cd,39cP@"X^HJS<aa}FSFFFF}oaa}<a]XX}kaaSFSS*SSSSSSSSSS]o]o]o]o]o]o]o]o]XXXXX}}}}kkkX}kNF}J}}}\\VV<xx}SS}}<xVF*RRdE|>gn|g|n|SR{nnnRRnnnnnnnRRRRRRRRRRRRSS"X^?Sf}}SSS}?S?F}}}}}}}}}}FFoSaSFSu}So}o}oS}}FF}F}}}}SaF}}}}ox2xS?SS*SSSSSSSSSS}FooooooooooSFSFSFSF}}}}}}}}}}o}}}}}}ooooooo}oooo}}}}}}}}SFSFSFSFa}FFFFF}}}}}}SSSaaaaFFF}}}}}}}ooo}F}SaF}}}}}NX?q}So}}}}}EN}K}K-oo}SS}}SoKF*RRdE|>gn|g|n|SR}{nnnRRnnnnnnnRRRRRRRRRRRRSS"X^?S}}SSS}?S?F}}}}}}}}}}SS}a}SFS}S}ooS}FSF}oaS}}}oc7cS?SS*SSSSSSSSSSF}}}}}oooooaFaFaFaF}}}}}}}}}}}}}oooooooo}}}}}}aFaFaFaF}FFFFF}}oooaaaaSSS}oooFoaS}}}NX?}S}}}}}}KS}K}KF}}}SS}}S}KF*RRdE|>gn|g|n|SR{nnnRRnnnnnnnRRRRRRRRRRRRSS"m^56=ii,GG\o3=33iiiiiiiiii33ooo\QwzzGoGo\,pwfziGp~DAzA~pzw_\N~pppbGoGo=3============pDpppppfiiiiQDQDQDQD~pppp~~~~ppzppppzpppffffziiiipppppp~~QDQDQDQDwzAAAAA~~~~pp___z\z\z\z\NNN~~~~~~pzbzbzbzA~_z\Nppzp~No3\6\\\iiiCCi?i?,XX\==\\~~,X?ooee3o< P['CPd:SHvX pTCd'l80lX pTC)DS?3s\  PCP)DS??皝4  p(AC&)u![2*d[ P['CP &]I(!̤PI P['ChP)u![2*d[ P['CP )r$G)"PGxzPCP))o=3aRoe xzC&X&r!Y1)LY P['CP ))o=3no P['C&P d*w=50wX pTC&u![2*a[e xzCXOpin InitInitial Opinion codesdpЊ #  ( (    П I. A. 1. a.(1)(a) i) a) I A 1 a (1)(a) i) a)@@BQck QuoteSingle spaced indented quote - Circv C   (  Cd  ( ( ( Footnotes*rsFormats for ASTERISK footnotes'#[ P['CdP# ddf < X01Í Í1*'(Í Í #o P['Cn&P#X` hp x (#%'0*,.8135@8:! `either in purpose or effect' , !  to  negate the legislature's  ! `intention to establish a civil remedial mechanism' V! ) (citations omitted). And I note that the Court, in an earlier civil  J commitment case, Allen v. Illinois, 478 U. S., at 369, looked primarily to the law's concern for treatment as` "   an important distinguishing feature. I do not believe  J that Allen means that a particular law's lack of concern for treatment, by itself, is enough to make an incapacitative law punitive. But, for reasons I will point out, when a State believes that treatment does exist, and then couples that admission with a legislatively required delay of such treatment until a person is at the end of his jail term (so that further incapacitation is therefore necessary), such a legislative scheme begins to look punitive.  Jp  In Allen, the Court considered whether, for Fifth Amendment purposes, proceedings under an Illinois statute were civil or criminal. The Illinois statute, rather like the Kansas statute here, authorized the confinement of persons who were sexually dangerous, who had committed at least one prior sexual assault,  J and who suffered from a mental disorder. Id., at 366,  JX n.1.R R " The Allen Court, looking behind the statute's civil commitment label, found the statute civil"in important part because the State had provided for the  J treatment of those it commits. Id., at 370 (also referring to facts that the State had disavowed any interest in punishment and that it had established a system under which committed persons may be released after the briefest time in confinement).  In reaching this conclusion, the Court noted that the State Supreme Court had found the proceedings   `essentially civil'    because the statute's aim was to provide  J   u  `treatment, not punishment.' ~  Id.,at 367 (quoting  Jx People v. Allen, 107 Ill. 2d 91, 99!101, 481 N. E.2d 690, 694!695 (1985)). It observed that the State had a statutory obligation to provide `care and treatment ... designed to effect recovery'   in a facility set aside to provide psychiatric care. 478 U.S., at 369 (quoting Ill. Rev. Stat., ch. 38, 105!8 (1985)). And it referred to  J the State's purpose as one of treating rather than punishing sexually dangerous persons. 478 U.S., at` "    J 373; see also ibid. ( Had petitioner shown, for example, that the confinement . . . imposes . . . a regimen which is essentially identical to that imposed upon felons with no need for psychiatric care, this might well be a different case).  J8  The Allen Court's focus upon treatment, as a kind of touchstone helping to distinguish civil from punitive purposes, is not surprising, for one would expect a nonpunitive statutory scheme to confine, not simply in order to protect, but also in order to cure. That is to say, one would expect a nonpunitively motivated legisla JH ture that confines because of a dangerous mental abnormality to seek to help the individual himself overcome that abnormality (at least insofar as professional treatment for the abnormality exists and is potentially helpful, as Kansas, supported by some groups of mental  J health professionals, argues is the case here, see supra, at 6). Conversely, a statutory scheme that provides confinement that does not reasonably fit a practically available, medically oriented treatment objective, more likely reflects a primarily punitive legislative purpose.  Several important treatmentrelated factors"factors of  J a kind that led the fivemember Allen majority to conclude that the Illinois' legislature's purpose was primarily civil, not punitive"in this case suggest precisely the opposite. First, the State Supreme Court here, unlike  J the state court in Allen, has held that treatment is not a significant objective of the Act. The Kansas court wrote that the Act's purpose is segregation of sexually violent offenders, with treatment a matter that was incidental at best. 259 Kan., at 258, 912 P.2d, at  J( 136. By way of contrast, in Allen the Illinois court had written that  ! `treatment, not punishment' !  was the aim  J of the statute. Allen, supra, at 367 (quoting People v.  J Allen, 107 Ill. 2d, at 99!101, 481 N. E. 2d, at 694!695).  We have generally given considerable weight to the findings of state and lower federal courts regarding the` "   intent or purpose underlying state officials' actions, see  J U. S. Term Limits, Inc. v. Thornton, 514 U.S. ___ ! ,___ (1995) (slip op., at 52) (ordinarily [w]e must ... accept the State Court's view of the purpose of its own law);  J` Romer v. Evans, 517 U.S. ___ ! , ___ (1996) (slip op., at  J8 4); Hernandez v. New York, 500 U.S. 352, 366!370  J (1991) (plurality); id., at 372 (O'Connor, J., concurring);  J Edwards v. Aguillard, 482 U.S. 578, 594, n.15 (1987);  J but see Department of Revenue of Mont. v. Kurth Ranch,  J 511 U.S., at 776, 780, n. 18; Stone v. Graham, 449  Jp U.S. 39, 40!43 (1980) (per curiam); Consolidated Edison  JH Co. of N. Y. v. Public Serv. Comm'n of N.Y., 447 U.S. 530, 533, 535!537 (1980), although the level of deference given to such findings varies with the circumstances,  J Crawford v. Board of Ed. of Los Angeles, 458 U.S. 527, 544, n. 30 (1982), and is not always as conclusive as a  J state court's construction of one of its statutes, see, e.g.,  JX R. A. V. v. St. Paul, 505 U.S. 377, 381 (1992). For  J0 example, Allen's dissenters, as well as its majority, considered the state court's characterization of the state law's purpose an important factor in determining the  J constitutionality of that statute. Allen, supra, at 380  J (Stevens, J., dissenting) (describing the state court as the final authority on the . . . purpose of the statute).  The record provides support for the Kansas court's conclusion. The court found that, as of the time of Hendricks' commitment, the State had not funded treatment, it had not entered into treatment contracts, and it had little, if any, qualified treatment staff. See  Jx Hendricks, 912 P. 2d, at 131, 136; Testimony of Dr. Charles Befort, App. 255 (acknowledging that he has no  J( specialized training); Testimony of John House, SRS  J Attorney, id., at 367 (no contract has been signed by  J bidders); Testimony of John House, SRS Attorney, id., at 369 (no one hired to operate SVP program or to serve as clinical director, psychiatrist, or psychologist). Indeed, were we to follow the majority's invitation to look` "   beyond the record in this case, an invitation with which  J we disagree, see infra, at 20!21, it would reveal that Hendricks, according to the commitment program's own  J director, was receiving essentially no treatment.  Dr. Charles Befort in State Habeas Corpus Proceeding, App. 393; 259 Kan., at 249, 258, 912 P.2d, at 131, 136. See also App. 421 ( the treatment that is prescribed by  J statute is still not available); id., at 420!421 (the needed treatment hasn't been delivered yet and Hendricks has wasted ten months in terms of treat Jp ment effects); id., at 391!392 (Dr. Befort admitting that he is not qualified to be SVP program director).  It is therefore not surprising that some of the Act's official supporters had seen in it an opportunity perma J nently to confine dangerous sex offenders, e.g., id., at  J 468 (statement of Attorney General Robert Stephan); id., at 475!476, 478 (statement of Special Assistant to the Attorney General Carla Stovall). Others thought that  J0 effective treatment did not exist, id., at 503 (statement of Jim Blaufuss) ( Because there is no effective treatment for sex offenders, this Bill may mean a life sentence for a felon that is considered a risk to women and children. SO BE IT!)"a view, by the way, that the State of Kansas, supported by groups of informed mental health professionals, here strongly denies. See  J supra, at 6.  The Kansas court acknowledged the existence of provisions of the Act for treatment (although it called them somewhat disingenuous). 259 Kan., at 258, 912 P.2d, at 136. Cf. Kan. Stat. Ann. 59!29a01 (1994) (legislative findings that prognosis for rehabilita[tion] ... in a prison setting is poor, ... treatment needs ... long term and commitment procedure for ... long term care and treatment ... necessary); 59!29a09 ( commitment ... shall conform to constitutional requirements for care and treatment). Nor did the court deny that Kansas could later increase the amount` "   of treatment it provided. But the Kansas Supreme Court could, and did, use the Act's language, history, and initial implementation to help it characterize the Act's primary purposes.  Second, the Kansas statute insofar as it applies to previously convicted offenders, such as Hendricks,  J commits, confines, and treats those offenders after they have served virtually their entire criminal sentence. That timerelated circumstance seems deliberate. The Act explicitly defers diagnosis, evaluation, and commitment proceedings until a few weeks prior to the anticipated release of a previously convicted offender from prison. Kan. Stat. Ann. 59!29a03(a)(1) (1994). But why, one might ask, does the Act not commit and require treatment of sex offenders sooner, say soon after they begin to serve their sentences?  An Act that simply seeks confinement, of course, would not need to begin civil commitment proceedings sooner. Such an Act would have to begin proceedings only when an offender's prison term ends, threatening his release from the confinement that imprisonment assures. But it is difficult to see why rational legislators who seek treatment would write the Act in this way"providing treatment years after the criminal act  J@ that indicated its necessity. See, e.g., Wettstein, A Psychiatric Perspective on Washington's Sexually Violent Predators Statute, 15 U.Puget Sound L.Rev. 597, 617 (1992) (stating that treatment delay leads to loss of memory and makes it more difficult for the offender to accept responsibility, and that time in prison leads to attitude hardening that engender[s] a distorted view of the precipitating offense). And it is particularly difficult to see why legislators who specifically wrote into the statute a finding that prognosis for rehabilitating ... in a prison setting is poor would leave an offender in that setting for months or years before beginning treatment. This is to say, the timing provisions of the`"   statute confirm the Kansas Supreme Court's view that treatment was not a particularly important legislative objective.  I recognize one possible counterargument. A State, wanting both to punish Hendricks (say, for deterrence purposes) and also to treat him, might argue that it should be permitted to postpone treatment until after punishment in order to make certain that the punishment in fact occurs. But any such reasoning is out of place here. Much of the treatment that Kansas offered here (called ward milieu and group therapy) can be given at the same time as, and in the same place where,  J Hendricks serves his punishment. See, e.g., Testimony  J of Leroy Hendricks, id., 142!143, 150, 154, 179!181 (stating that Washington and Kansas had both provided group therapy to Hendricks, and that he had both taken and refused such treatment at various points); Testimony of Terry Davis, SRS Director of Quality Assurance,  J0 id., at 78!81 (pointing out that treatment under the Act takes place in surroundings very similar to those in which prisoners receive treatment); Testimony of John  J House, SRS Attorney, id., at 375!376. See also Task Force on Community Protection, Final Report to Booth Gardner, Governor State of Washington II2 (1989) (findings of Task Force that developed the Washington State Act, which served as a model for Kansas' Act, stating that [s]ex offenders can be treated during incarceration). The evidence adduced at the state habeas proceeding, were we to assume it properly before  Jx the Court, see infra, at 20!21, supports this conclusion as well. See Testimony of Dr. Befort at State Habeas Proceeding, App. 399, 406!408 (describing treatment as  J ward milieu and group therapy); id., at 416!417 (stating that Kansas offers similar treatment, on a voluntary basis, to prisoners). Hence, assuming arguendo that it would be otherwise permissible, Kansas need not postpone treatment in order to make certain that sex`"    J offenders serve their full terms of imprisonment, i.e., to make certain that they receive the entire punishment that Kansas criminal law provides. To the contrary, the statement in the Act itself, that the Act aims to respond to special long term treatment needs, suggests that treatment should begin during imprisonment. It also suggests that, were those longterm treatment needs (rather than further punishment) Kansas' primary aim, the State would require that treatment begin soon after conviction, not 10 or more years later. See also Vt. Stat. Ann., Tit. 18, 2815 (1959) (providing for treatment of sexual psychopaths first, and punishment afterwards).  Third, the statute, at least as of the time Kansas applied it to Hendricks, did not require the committing authority to consider the possibility of using less restrictive alternatives, such as postrelease supervision,  J halfway houses, or other methods that amici supporting Kansas here have mentioned. Brief for the Menninger  J0 Foundation et al. as Amici Curiae 28; Brief for the Association for the Treatment of Sexual Abusers as  J Amicus Curiae 11!12. The laws of many other States  J require such consideration. See Appendix, infra.  This Court has said that a failure to consider, or to use, alternative and less harsh methods to achieve a nonpunitive objective can help to show that legislature's  J  purpose ... was to punish. Bell v. Wolfish, 441 U.S.520, 539, n. 20 (1979). And one can draw a similar conclusion here. Legislation that seeks to help the individual offender as well as to protect the public would avoid significantly greater restriction of an individual's liberty than public safety requires. See Keilitz, Conn, & Gianpetro, Least Restrictive Treatment of Involuntary Patients: Translating Concepts into Practice, 29 St.Louis U.L.J.691, 693 (1985) (describing least restrictive alternativ[e] provisions in the ordinary civil commitment laws of almost all States); Lyon, Levine, & Zusman, Patients' Bill of Rights: A`"   Survey of State Statutes, 6 Mental Disability L.Rep. 178, 181!183 (1982) (same). Legislation that seeks almost exclusively to incapacitate the individual through confinement, however, would not necessarily concern itself with potentially less restrictive forms of incapacitation. I would reemphasize that this is not a case in which the State claims there is no treatment potentially  J available. Rather, Kansas, and supporting amici, argue  J that pedophilia is treatable. See supra, at 6.  Fourth, the laws of other States confirm, through comparison, that Kansas' civil commitment objectives do not require the statutory features that indicate a punitive purpose. I have found 17 States with laws that seek to protect the public from mentally abnormal, sexually dangerous individuals through civil commitment or other mandatory treatment programs. Ten of those statutes, unlike the Kansas statute, begin treatment of an offender soon after he has been apprehended and charged with a serious sex offense. Only seven, like Kansas, delay civil commitment (and treatment) until the offender has served his criminal sentence (and this figure includes the Acts of Minnesota and New Jersey, both of which generally do not delay treatment). Of these seven, however, six (unlike Kansas) require consideration of less restrictive alternatives. See Ariz. Rev. Stat. Ann. 13!4601, 4606B (Supp. 1996!1997); Cal.Welf.& Inst.Code Ann. 6607, 6608 (West Supp. 1997); Minn.Stat. 253B.09 (1996); N.J. Stat. Ann. 30:4!27.11d (West 1997); Wis. Stat. 980.06(2)(b)) (Supp. 1993!1994); Wash. Rev. Code Ann. 71.09.090 (Supp. 1996!1997). Only one State other than Kansas, namely Iowa, both delays civil commitment (and consequent treatment) and does not explicitly consider less restrictive alternatives. But the law of that State applies  J prospectively only, thereby avoiding ex post facto problems. See Iowa Code Ann. 709C.12 (Supp. 1997) (Iowa SVP act only applies to persons convicted of a sexually`"   violent offense on or after July 1, 1997); see also  J Appendix, infra. Thus the practical experience of other States, as revealed by their statutes, confirms what the Kansas Supreme Court's finding, the timing of the civil commitment proceeding, and the failure to consider less restrictive alternatives, themselves suggest, namely, that  J for Ex Post Facto Clause purposes, the purpose of the Kansas Act (as applied to previously convicted offenders) has a punitive, rather than a purely civil, purpose.  Kansas points to several cases as support for a con Jp trary conclusion. It points to Allen"which is, as we have seen, a case in which the Court concluded that Illinois' civil commitment proceedings were not criminal. I have explained in detail, however, how the  J statute here differs from that in Allen, and why Allen's reasoning leads to a different conclusion in this litiga J tion. See supra, at 9!16.  JX  Kansas also points to Addington v. Texas, where the Court held that the Constitution does not require application of criminal law's beyond a reasonable doubt standard in a civil commitment proceeding. 441 U. S., at 428. If some criminal law guarantees such as  J  reasonable doubt did not apply in Addington, should  Jh other guarantees, such as the prohibition against ex post  J@ facto laws, apply here? The answer to this question, of course, lies in the particular statute at issue in  J ԚAddington"a Texas statute that, this Court observed, did not exercis[e] state power in a punitive sense.  J Ibid. That statute did not add civil commitment's confinement to imprisonment; rather civil commitment was, at most, a substitute for criminal punishment. See Tex. Rev. Civ. Stat. Ann. 5547!41 (1958) (petition must state proposed patient is not charged with a crime or ... charged [but] ... transferred ... for civil commitment proceedings). And this Court, relying on the Texas Supreme Court's interpretation, wrote that the State of Texas confines only for the purpose of provid`"  Ԯ J ing care designed to treat the individual. Addington,  J supra, at 428, n. 4 (citing State v. Turner, 556 S. W. 2d  J 563, 566 (1977)). Cf. Specht v. Patterson, 386 U.S.605, 608!609 (1967) (separate postconviction sexual psychopath commitment/sentencing proceeding held after conviction for serious sex crime, imposes a criminal punishment even though ... designed not so much as retribution as ... to keep individuals from inflicting future harm). Nothing I say here would change the  J reach or holding of Addington in any way. That is, a State is free to commit those who are dangerous and mentally ill in order to treat them. Nor does my decision preclude a State from deciding that a certain subset of people are mentally ill, dangerous, and untreatable, and that confinement of this subset is therefore necessary (again, assuming that all the  J procedural safeguards of Addington are in place). But when a State decides offenders can be treated and confines an offender to provide that treatment, but then refuses to provide it, the refusal to treat while a person is fully incapacitated begins to look punitive.  The majority suggests that this is the very case I say it is not, namely a case of a mentally ill person who is  Jh untreatable. Ante, at 18. And it quotes a long excerpt from the Kansas Supreme Court's opinion in support. That court, however, did not find that Hendricks was  J untreatable; it found that he was untreated"quite a different matter. Had the Kansas Supreme Court thought that Hendricks, or others like him, are untreatable, it could not have written the words that follow that excerpt, adopting by reference the words of another court opinion: BQ C  , , (  The statute forecloses the possibility that offenders will be evaluated and treated until after they have been punished. . . . Setting aside the question of whether a prison term exacerbates or minimizes the mental condition of a sex offender, it plainly delays"   the treatment that must constitutionally accompany commitment pursuant to the Statute. The failure of the Statute to provide for examination or treatment prior to the completion of the punishment phase strongly suggests that treatment is of secondary, rather than primary, concern. 259 Kan., at 258,  J 912 P. 2d, at 136 (quoting Young v. Weston, 898 F.Supp. 744, 753 (WD Wash. 1995)). GvBQ d  ( , , This quotation, and the rest of the opinion, make clear that the court is finding it objectionable that the Statute, among other things, has not provided adequate  J treatment to one who, all parties here concede, can be treated.  The majority suggests in the alternative that recent evidence shows that Kansas is now providing treatment.  J Ante, at 19!21. That evidence comes from two sources. First, a statement by the Kansas Attorney General at oral argument that those committed under the Act are  J now receiving treatment. Ante, at 20!21. And second, in a footnote, a Kansas trial judge's statement, in a state habeas proceeding nearly one year after Hendricks was committed, that Kansas is providing treatment.  J Ante, at 21 n. 5. I do not see how either of these statements can be used to justify the validity of the Act's application to Hendricks at the time he filed suit.  We are reviewing the Kansas Supreme Court's determination of Hendricks' case. Neither the majority nor the lengthy dissent in that court referred to the two facts that the majority now seizes upon, and for good reason. That court denied a motion to take judicial notice of the state habeas proceeding, see Order of Kansas Supreme Court, No. 94!73039, March 1, 1996. The proceeding is thus not part of the record, and cannot properly be considered by this Court. And the Kansas Supreme Court obviously had no chance to consider Kansas' new claim made at oral argument before this Court. There is simply no evidence in the"   record before this Court that comes even close to resembling the assertion Kansas made at oral argument. It is the record, not the parties' view of it, that must  J control our decision. See Russell v. Southard, 12 How.  J` 139, 158!159 (1851); Adickes v. S. H. Kress & Co., 398  J8 U.S. 144, 157!158, n.16 (1970); Hopt v. Utah, 114  J U.S. 488, 491!492 (1885); Witters v. Washington Dept.  J of Servs. for Blind, 474 U.S. 481, 489 n.3 (1986); New  J Haven Inclusion Cases, 399 U.S. 392, 450, n.66 (1970); R. Stern, E. Gressman, S. Shapiro, K. Geller, Supreme Court Practice 555!556, 594 (7th ed. 1993); Fed. Rule Evid. 201(b).  The prohibition on facts found outside the record is designed to ensure the reliability of the evidence before the Court. For purposes of my argument in this dissent, however, the material that the majority wishes to consider, when read in its entirety, show that Kansas  JX was not providing treatment to Hendricks. At best, the testimony at the state hearing contained general and vague references that treatment was about to be  J Ԛprovided, but it contains no statement that Hendricks  J himself was receiving treatment. And it provides the majority with no support at all in respect to that key fact. Indeed, it demonstrates the contrary conclusion. For example, the program's director, Dr. Befort, testified that he would have to tell the court at Hendricks' next annual review, in October 1995, that Hendricks has had no opportunity for meaningful treatment. App. 400. He also stated that SVPs were receiving essentially no treatment and that the program does not have ade JP quate staffing. Id., at 393, 394. And Dr. Befort's last words made clear that Hendricks has wasted ten months . . . in terms of treatment effects and that, as far as treatment goes, [t]oday, it's still not available.  J Id., at 420!421. Nor does the assertion made by the  J Kansas Attorney General at oral argument help the  J` majority. She never stated that Hendricks, as opposed`"   to other SVPs, was receiving this treatment. And we can find no support for her statement in the record.  We have found no other evidence in the record to support the conclusion that Kansas was in fact providing the treatment that all parties agree that it could provide. Thus, even had the Kansas Supreme Court considered the majority's new evidence"which it did not"it is not likely to have changed its characterization of the Act's treatment provisions as somewhat disingenuous. 259 Kan., at 258, 912 P.2d, at 136.  Regardless, the Kansas Supreme court did so characterize the Act's treatment provisions and did find that treatment was at best an incidental objective. Thus,  J the circumstances here are different from Allen, where the Illinois Supreme Court explicitly found that the statute's aim was to provide treatment, not punishment.  J See supra, at 10!12. There is no evidence in the record that contradicts the finding of the Kansas court. Thus,  J0 Allen's approach"its reliance on the State court"if  J followed here would mean the Act as applied to Leroy  J Hendricks (as opposed to others who may have received treatment or who were sentenced after the effective date of the Act), is punitive.  Jh  Finally, Kansas points to United States v. Salerno, 481 U.S.739 (1987), a case in which this Court held preventive detention of a dangerous accused person  J pending trial constitutionally permissible. Salerno, however, involved the brief detention of that person, after a finding of probable cause that he had committed a crime that would justify further imprisonment, and only pending a speedy judicial determination of guilt or  J( innocence. This Court, in Foucha, emphasized the fact  J that the confinement at issue in Salerno was strictly limited in duration. 504 U. S.,at 82. It described that pretrial detention of arrestees as one of those carefully limited exceptions permitted by the Due Process  J` Clause. Id., at 83. And it held that Salerno did not`"   authorize the indefinite detention, on grounds of dangerousness, of insanity acquittees who are not mentally ill but who do not prove they would not be dangerous to  J others. 504 U.S., at 83. Whatever Salerno's due process implications may be, it does not focus upon, nor control, the question at issue here, the question of  J  punishment for purposes of the Ex Post Facto Clause.  J  One other case warrants mention. In Kennedy v.  J Mendoza-Martinez, 372 U.S.144 (1963), this Court listed seven factors that helped it determine whether a particular statute was primarily punitive for purposes of applying the Fifth and Sixth Amendments. Those factors include whether a sanction involves an affirmative restraint, how history has regarded it, whether it applies to behavior already a crime, the need for a finding of scienter, its relationship to a traditional aim of punishment, the presence of a nonpunitive alternative purpose, and whether it is excessive in relation to that  J0 purpose. Id., at 169. This Court has said that these seven factors are neither exhaustive nor dispositive,  J but nonetheless helpful. Ward, 448 U.S., at 249. Paraphrasing them here, I believe the Act before us involves an affirmative restraint historically regarded as punishment; imposed upon behavior already a crime after a finding of scienter; which restraint, namely confinement, serves a traditional aim of punishment, does not primarily serve an alternative purpose (such as treatment) and is excessive in relation to any alternative purpose assigned. 372 U.S., at 168!169.  This is to say that each of the factors the Court men JP tioned in MartinezMendoza on balance argues here in favor of a constitutional characterization as punishment. It is not to say that I have found a single `formula' for identifying those legislative changes that have a sufficient effect on substantive crimes or punishments to fall within the constitutional prohibition,  J` Morales, 514 U. S., at ___ (slip op., at 9); see also`"    J Halper, 490 U.S., at 447; id., at 453 (Kennedy, J., concurring). We have not previously done so, and I do not do so here. Rather, I have pointed to those features of the Act itself, in the context of this litigation, that lead me to conclude, in light of our precedent, that the added confinement the Act imposes upon Hendricks is basically punitive. This analysis, rooted in the facts surrounding Kansas' failure to treat Hendricks, cannot answer the question whether the Kansas Act, as it now stands, and in light of its current implementation, is punitive towards people other than he. And I do not attempt to do so here.  9H1 d dy7III؃  \ 2  To find that the confinement the Act imposes upon Hendricks is punishment is to find a violation of the  J> Ex Post Facto Clause. Kansas does not deny that the 1994 Act changed the legal consequences that attached to Hendricks earlier crimes, and in a way that signifi J cantly disadvantage[d] the offender, Weaver v. Graham, 450 U.S. 24, 29 (1981). See Brief for Respondent State of Kansas 37!39.  To find a violation of that Clause here, however, is not to hold that the Clause prevents Kansas, or other States, from enacting dangerous sexual offender statutes. A statute that operates prospectively, for example, does  J not offend the Ex Post Facto Clause. Weaver, 450 U.S.,  J supra, at 29. Neither does it offend the Ex Post Facto Clause for a State to sentence offenders to the fully authorized sentence, to seek consecutive, rather than concurrent, sentences, or to invoke recidivism statutes to lengthen imprisonment. Moreover, a statute that operates retroactively, like Kansas' statute, nonetheless  J does not offend the Clause if the confinement that it  Jn imposes is not punishment"if, that is to say, the legislature does not simply add a later criminal punish J ment to an earlier one. Ibid."  Ԍ The statutory provisions before us do amount to punishment primarily because, as I have said, the legislature did not tailor the statute to fit the nonpunitive civil aim of treatment, which it concedes exists in Hendricks' case. The Clause in these circumstances does not stand as an obstacle to achieving important protections for the public's safety; rather it provides an assurance that, where so significant a restriction of an individual's basic freedoms is at issue, a State cannot cut corners. Rather, the legislature must hew to the Constitution's libertyprotecting line. See The Federalist, No.78, p. 466 (C.Rossiter ed.1961) (A. Hamilton).  I therefore would affirm the judgment below.  "    J 4*Appendix:  J # Selected Sexual Offense Commitment Statutes -, " (Kansas is the only State that answers yes -, ,to all three categories) Y ddx !, ddx8__ Y     K  State   K  Delays Treat K Ԛment h  K  Fails to Consider Less Restrictive  K@ Alternatives    K  Applies to PreAct  Kh ԚCrimes   8 Ariz. Rev. Stat.  Jx Ann. 13!4601 et  JP seq. (Supp. 1996!1997)  Yes  No   BU*    Cal. Welf.& Inst.Code Ann.  J8 6600 et seq. (West Supp. 1997)  Yes No Yes    Colo. Rev. Stat.  JH 16!11.7!101 et  J  seq. (Supp. 1996) No Yes Sometimes   Conn. Gen. Stat.  JX 17a566 et seq. (1992 and Supp. 1996) No  NG*  BU*   Ill. Comp. Stat.,  J@ ch. 725, 205 et  J seq. (1994) No No  8  Iowa Code Ann. ch. 709C (Supp. 1996)( Yes( Yes( Nox"  8   Kan. Stat. Ann.  J` 59!29a01 et seq. (1994) Yes Yes Yes   Mass. Gen. Laws, ch. 123A (Supp. 1997)  No  NG*  BU*   Minn. Stat. Ann., ch. 253B (1994 and Supp. 1996!1997)0  Sometimes0  No0  Yes    Neb. Rev. Stat.  J Ԛ29!2923 et seq. (Supp. 1996)@  No@  No@  Generally not  0  N.J. Stat. Ann.  J Ԛ30:4!82.4 et seq.  Jx (West 1997)P SometimesP NoP BU*  @  N.M. Stat. Ann  J Ԛ43!1!1 et seq. (1993)` No` No` BU* 8 P Ore. Stat. 426.  J 510 et seq. (1995) No Yes Generally not8  ` Tenn. Code Ann.  J Ԛ33!6!301 et seq. (1984 and Supp. 1996) No Yes BU*   Utah Code Ann.  J Ԛ77!16!1 et seq. (1995) No Yes Generally not   Wash. Rev. Code  J Ann. 71.09.01 et  J seq. (1992 and Supp. 1996!1997)x Yesx Nox Yes"   h   Wis. Stat. 980.010  J` et seq. (1996)h Yesh Noh Yesh    (* = designation that the statute does not specify) -,