382
Breyer, J., dissenting
civil or "criminal." The Illinois statute, rather like the Kansas statute here, authorized the confinement of persons who were sexually dangerous, who had committed at least one prior sexual assault, and who suffered from a "mental disorder." Id., at 366, n. 1. The Allen Court, looking behind the statute's "civil commitment" label, found the statute civil— in important part because the State had "provided for the treatment of those it commits." Id., at 370 (also referring to facts that the State had "disavowed any interest in punishment" and that it had "established a system under which committed persons may be released after the briefest time in confinement").
In reaching this conclusion, the Court noted that the State Supreme Court had found the proceedings " 'essentially civil' " because the statute's aim was to provide " 'treatment, not punishment.' " Id., at 367 (quoting People v. Allen, 107 Ill. 2d 91, 99-101, 481 N. E. 2d 690, 694-695 (1985)). It observed that the State had "a statutory obligation to provide 'care and treatment . . . designed to effect recovery' " in a "facility set aside to provide psychiatric care." 478 U. S., at 369 (quoting Ill. Rev. Stat., ch. 38, ¶ 105-8 (1985)). And it referred to the State's purpose as one of "treating rather than punishing sexually dangerous persons." 478 U. S., at 373; see also ibid. ("Had petitioner shown, for example, that the confinement . . . imposes . . . a regimen which is essentially identical to that imposed upon felons with no need for psychiatric care, this might well be a different case").
The Allen Court's focus upon treatment, as a kind of touchstone helping to distinguish civil from punitive purposes, is not surprising, for one would expect a nonpunitive statutory scheme to confine, not simply in order to protect, but also in order to cure. That is to say, one would expect a nonpunitively motivated legislature that confines because of a dangerous mental abnormality to seek to help the individual himself overcome that abnormality (at least insofar as professional treatment for the abnormality exists and is
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