390
Breyer, J., dissenting
served, did "not exercis[e]" state power "in a punitive sense." Ibid. That statute did not add civil commitment's confinement to imprisonment; rather civil commitment was, at most, a substitute for criminal punishment. See Tex. Rev. Civ. Stat. Ann. § 5547-41 (Vernon 1958) (petition must state "proposed patient is not charged with a crime or [is] charged [but] transferred . . . for civil commitment proceedings"). And this Court, relying on the Texas Supreme Court's interpretation, wrote that the "State of Texas confines only for the purpose of providing care designed to treat the individual." Addington, supra, at 428, n. 4 (citing State v. Turner, 556 S. W. 2d 563, 566 (1977)). Cf. Specht v. Patterson, 386 U. S. 605, 608-609 (1967) (separate postconviction sexual psychopath commitment/sentencing proceeding held after conviction for serious sex crime, imposes a "criminal punishment even though . . . designed not so much as retribution as . . . to keep individuals from inflicting future harm"). Nothing I say here would change the reach or holding of Addington in any way. That is, a State is free to commit those who are dangerous and mentally ill in order to treat them. Nor does my decision preclude a State from deciding that a certain subset of people are mentally ill, dangerous, and untreatable, and that confinement of this subset is therefore necessary (again, assuming that all the procedural safeguards of Addington are in place). But when a State decides offenders can be treated and confines an offender to provide that treatment, but then refuses to provide it, the refusal to treat while a person is fully incapacitated begins to look punitive.
The majority suggests that this is the very case I say it is not, namely, a case of a mentally ill person who is untreatable. Ante, at 365. And it quotes a long excerpt from the Kansas Supreme Court's opinion in support. That court, however, did not find that Hendricks was untreatable; it found that he was untreated—quite a different matter. Had the Kansas Supreme Court thought that Hendricks, or oth-
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