Kansas v. Hendricks, 521 U.S. 346, 43 (1997)

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388

KANSAS v. HENDRICKS

Breyer, J., dissenting

This Court has said that a failure to consider, or to use, "alternative and less harsh methods" to achieve a nonpunitive objective can help to show that legislature's "purpose . . . was to punish." Bell v. Wolfish, 441 U. S. 520, 539, n. 20 (1979). And one can draw a similar conclusion here. Legislation that seeks to help the individual offender as well as to protect the public would avoid significantly greater restriction of an individual's liberty than public safety requires. See Keilitz, Conn, & Gianpetro, Least Restrictive Treatment of Involuntary Patients: Translating Concepts into Practice, 29 St. Louis U. L. J. 691, 693 (1985) (describing "least restrictive alternativ[e]" provisions in the ordinary civil commitment laws of almost all States); Lyon, Levine, & Zusman, Patients' Bill of Rights: A Survey of State Statutes, 6 Mental Disability L. Rep. 178, 181-183 (1982) (same). Legislation that seeks almost exclusively to incapacitate the individual through confinement, however, would not necessarily concern itself with potentially less restrictive forms of incapacitation. I would reemphasize that this is not a case in which the State claims there is no treatment potentially available. Rather, Kansas, and supporting amici, argue that pedophilia is treatable. See supra, at 378.

Fourth, the laws of other States confirm, through comparison, that Kansas' "civil commitment" objectives do not require the statutory features that indicate a punitive purpose. I have found 17 States with laws that seek to protect the public from mentally abnormal, sexually dangerous individuals through civil commitment or other mandatory treatment programs. Ten of those statutes, unlike the Kansas statute, begin treatment of an offender soon after he has been apprehended and charged with a serious sex offense. Only seven, like Kansas, delay "civil" commitment (and treatment) until the offender has served his criminal sentence (and this figure includes the Acts of Minnesota and New Jersey, both of which generally do not delay treatment). Of these seven, however, six (unlike Kansas) require consideration of less re-

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