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Thomas, J., dissenting
cerated for 32 years. See La. Rev. Stat. Ann. §§ 14:60, 14:94 (West 1986). Thus, I find quite odd Justice O'Connor's suggestion, ante, at 89, that this case might be different had Louisiana, like the State of Washington, limited confinement to the period for which a defendant might have been imprisoned if convicted. Foucha, of course, would be in precisely the same position today—and for the next 24 years—had the Louisiana statute included such a cap. Thus, the Court apparently finds fault with the Louisiana statute not because it has been applied to Foucha in an unconstitutional manner, but because the Court can imagine it being applied to someone else in an unconstitutional manner. That goes against the first principles of our jurisprudence. See, e. g., Salerno, 481 U. S., at 745 ("The fact that [a detention statute] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment").17
Finally, I see no basis for holding that the Due Process Clause per se prohibits a State from continuing to confine in a "mental institution"—the federal constitutional definition of which remains unclear—an insanity acquittee who has recovered his sanity. As noted above, many States have long provided for the continued detention of insanity acquittees who remain dangerous. Neither Foucha nor the Court present any evidence that these States have traditionally transferred such persons from mental institutions to other detention facilities. Therefore, there is simply no basis for this Court to recognize a "fundamental right" for a sane insanity acquittee to be transferred out of a mental facility. "In an attempt to limit and guide interpretation of the [Due Process] Clause, we have insisted not merely that the interest
17 I fully agree with Justice O'Connor, ante, at 88, that there would be a serious question of rationality had Louisiana sought to institutionalize a sane insanity acquittee for a period longer than he might have been imprisoned if convicted. But that is simply not the case here.
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