Kansas v. Hendricks, 521 U.S. 346, 46 (1997)

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Cite as: 521 U. S. 346 (1997)

Breyer, J., dissenting

ers like him, are untreatable, it could not have written the words that follow that excerpt, adopting by reference the words of another court opinion:

" 'The statute forecloses the possibility that offenders will be evaluated and treated until after they have been punished. . . . Setting aside the question of whether a prison term exacerbates or minimizes the mental condition of a sex offender, it plainly delays the treatment that must constitutionally accompany commitment pursuant to the Statute. The failure of the Statute to provide for examination or treatment prior to the completion of the punishment phase strongly suggests that treatment is of secondary, rather than primary, concern.' " 259 Kan., at 258, 912 P. 2d, at 136 (quoting Young v. Weston, 898 F. Supp. 744, 753 (WD Wash. 1995)).

This quotation, and the rest of the opinion, make clear that the court is finding it objectionable that the statute, among other things, has not provided adequate treatment to one who, all parties here concede, can be treated.

The majority suggests in the alternative that recent evidence shows that Kansas is now providing treatment. Ante, at 366-368. That evidence comes from two sources: First, a statement by the Kansas Attorney General at oral argument that those committed under the Act are now receiving treatment, ante, at 368; and second, in a footnote, a Kansas trial judge's statement, in a state habeas proceeding nearly one year after Hendricks was committed, that Kansas is providing treatment. Ante, at 368, n. 5. I do not see how either of these statements can be used to justify the validity of the Act's application to Hendricks at the time he filed suit.

We are reviewing the Kansas Supreme Court's determination of Hendricks' case. Neither the majority nor the lengthy dissent in that court referred to the two facts that the majority now seizes upon, and for good reason. That court denied a motion to take judicial notice of the state

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