100
Kennedy, J., dissenting
Michigan, New York, and the District of Columbia, to name just a few. See N. Cohen & J. Gobert, Law of Probation and Parole § 3.05, p. 109, and n. 103 (1983). It is difficult for me to reconcile the rationale of incapacitative incarceration, which underlies these regimes, with the opinion of the majority, which discounts its legitimacy.
I also have difficulty with the majority's emphasis on the conditions of petitioner's confinement. In line with Justice O'Connor's concurring opinion, see ante, at 87-88, the majority emphasizes the fact that petitioner has been confined in a mental institution, see ante, at 77-78, 78-79, 82, suggesting that his incarceration might not be unconstitutional if undertaken elsewhere. The majority offers no authority for its suggestion, while Justice O'Connor relies on a reading of Vitek v. Jones, 445 U. S. 480 (1980), which was rejected by the Court in Jones v. United States. See ante, at 87-88, citing Jones v. United States, supra, at 384-385 (Brennan, J., dissenting). The petitioner did not rely on this argument at any point in the proceedings, and we have not the authority to make the assumption, as a matter of law, that the conditions of petitioner's confinement are in any way infirm. Ours is not a case, as in Vitek v. Jones, where the State has stigmatized petitioner by placing him in a mental institution when he should have been placed elsewhere. Jones v. United States is explicit on this point: "A criminal defendant who successfully raises the insanity defense necessarily is stigmatized by the verdict itself, and thus the commitment causes little additional harm in this respect." 463 U. S., at 367, n. 16. Nor is this a case, as in Washington v. Harper, 494 U. S. 210 (1990), in which petitioner has suffered some further deprivation of liberty to which independent due process protections might attach. Both the fact and conditions of confinement here are attributable to petitioner's criminal conduct and subsequent decision to plead insanity. To the extent the majority relies on the conditions of petitioner's
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