Cite as: 504 U. S. 71 (1992)
Kennedy, J., dissenting
to the penological goals of retribution, deterrence, incapacitation, and rehabilitation"); Williams v. New York, 337 U. S. 241, 246 (1949), and upon compliance with In re Winship, the State may incarcerate on any reasonable basis, see supra, at 93. Incapacitation for the protection of society is not an unusual ground for incarceration. "[I]solation of the dangerous has always been considered an important function of the criminal law," Powell v. Texas, 392 U. S. 514, 539 (1968) (Black, J., concurring), and insanity acquittees are a special class of offenders proved dangerous beyond their own ability to comprehend. The wisdom of incarceration under these circumstances is demonstrated by its high level of acceptance. Every State provides for discretionary or mandatory incarceration of insanity acquittees, 1 LaFave & Scott § 4.6(a), at 510, and as Justice Thomas observes in his dissent, provisions like those in Louisiana, predicated on dangerousness alone, have been endorsed by the Model Penal Code and adopted by the legislatures of no fewer than 11 other States. See post, at 111-112, and nn. 8 and 9.
It remains to be seen whether the majority, by questioning the legitimacy of incapacitative incarceration, puts in doubt the confinement of persons other than insanity acquittees. Parole release provisions often place the burden of proof on the prisoner to prove his lack of dangerousness. To use a familiar example, under the federal parole system in place until the enactment of the Sentencing Guidelines, an inmate could not be released on parole unless he established that his "release would not jeopardize the public welfare." 18 U. S. C. § 4206(a)(2) (1982 ed.), repealed 98 Stat. 2027; see also 28 CFR § 2.18 (1991). This requirement reflected "the incapacitative aspect of the use of imprisonment which has the effect of denying the opportunity for future criminality, at least for a time." U. S. Dept. of Justice, United States Parole Commission Rules and Procedures Manual 69 (July 24, 1989). This purpose is consistent with the parole release provisions of Alabama, Colorado, Hawaii, Massachusetts,
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