378
Breyer, J., dissenting
treatment. And it concluded that Hendricks' confinement violated the Due Process Clause for this reason as well.
This case does not require us to consider whether the Due Process Clause always requires treatment—whether, for example, it would forbid civil confinement of an untreatable mentally ill, dangerous person. To the contrary, Kansas argues that pedophilia is an "abnormality" or "illness" that can be treated. See Tr. of Oral Arg. 12 (Kansas Attorney General, in response to the question "you're claiming that there is some treatability . . . ?" answering "[a]bsolutely"); Brief for Petitioner 42-47. Two groups of mental health professionals agree. Brief for Association for the Treatment of Sexual Abusers as Amicus Curiae 11-12 (stating that "sex offenders can be treated" and that "increasing evidence" shows that "state-of-the-art treatment programs . . . significantly reduce recidivism"); Brief for Menninger Foundation et al. as Amici Curiae 28. Indeed, no one argues the contrary. Hence the legal question before us is whether the Clause forbids Hendricks' confinement unless Kansas provides him with treatment that it concedes is available.
Nor does anyone argue that Kansas somehow could have violated the Due Process Clause's treatment concerns had it provided Hendricks with the treatment that is potentially available (and I do not see how any such argument could succeed). Rather, the basic substantive due process treatment question is whether that Clause requires Kansas to provide treatment that it concedes is potentially available to a person whom it concedes is treatable. This same question is at the heart of my discussion of whether Hendricks' confinement violates the Constitution's Ex Post Facto Clause. See infra, at 383-395. For that reason, I shall not consider the substantive due process treatment question separately, but instead shall simply turn to the Ex Post Facto Clause discussion. As Justice Kennedy points out, ante, p. 371, some of the matters there discussed may later prove relevant to substantive due process analysis.
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