348
Syllabus
he can be detained pursuant to a single judicial proceeding is one year. The State's use of procedural safeguards applicable in criminal trials does not itself turn the proceedings into criminal prosecutions. Allen, supra, at 372. Finally, the Act is not necessarily punitive if it fails to offer treatment where treatment for a condition is not possible, or if treatment, though possible, is merely an ancillary, rather than an overriding, state concern. The conclusion that the Act is nonpunitive removes an essential prerequisite for both Hendricks' double jeopardy and ex post facto claims. Pp. 360-369. (b) Hendricks' confinement does not amount to a second prosecution and punishment for the offense for which he was convicted. Because the Act is civil in nature, its commitment proceedings do not constitute a second prosecution. Cf. Jones, supra. As this commitment is not tantamount to punishment, the detention does not violate the Double Jeopardy Clause, even though it follows a prison term. Baxstrom v. Herold, 383 U. S. 107. Hendricks' argument that, even if the Act survives the "multiple punishments" test, it fails the "same elements" test of Blockburger v. United States, 284 U. S. 299, is rejected, since that test does not apply outside of the successive prosecution context. Pp. 369-370. (c) Hendricks' ex post facto claim is similarly flawed. The Ex Post Facto Clause pertains exclusively to penal statutes. California Dept. of Corrections v. Morales, 514 U. S. 499, 505. Since the Act is not punishment, its application does not raise ex post facto concerns. Moreover, the Act clearly does not have retroactive effect. It does not criminalize conduct legal before its enactment or deprive Hendricks of any defense that was available to him at the time of his crimes. Pp. 370-371.
259 Kan. 246, 912 P. 2d 129, reversed.
Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, and Kennedy, JJ., joined. Kennedy, J., filed a concurring opinion, post, p. 371. Breyer, J., filed a dissenting opinion, in which Stevens and Souter, JJ., joined, and in which Ginsburg, J., joined as to Parts II and III, post, p. 373.
Carla J. Stovall, Attorney General of Kansas, argued the cause for the petitioner in No. 95-1649 and respondent in No. 95-9075. With her on the briefs were Stephen R. Mc-Allister, Special Assistant Attorney General, Bernard Nash, James van R. Springer, and Laura B. Feigin.
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