394
Breyer, J., dissenting
that "pretrial detention of arrestees" as "one of those carefully limited exceptions permitted by the Due Process Clause." Id., at 83. And it held that Salerno did not authorize the indefinite detention, on grounds of dangerousness, of "insanity acquittees who are not mentally ill but who do not prove they would not be dangerous to others." 504 U. S., at 83. Whatever Salerno's "due process" implications may be, it does not focus upon, nor control, the question at issue here, the question of "punishment" for purposes of the Ex Post Facto Clause.
One other case warrants mention. In Kennedy v. Mendoza-Martinez, 372 U. S. 144 (1963), this Court listed seven factors that helped it determine whether a particular statute was primarily punitive for purposes of applying the Fifth and Sixth Amendments. Those factors include whether a sanction involves an affirmative restraint, how history has regarded it, whether it applies to behavior already a crime, the need for a finding of scienter, its relationship to a traditional aim of punishment, the presence of a nonpunitive alternative purpose, and whether it is excessive in relation to that purpose. Id., at 169. This Court has said that these seven factors are "neither exhaustive nor dispositive," but nonetheless "helpful." Ward, 448 U. S., at 249. Paraphrasing them here, I believe the Act before us involves an affirmative restraint historically regarded as punishment; imposed upon behavior already a crime after a finding of scienter; which restraint, namely, confinement, serves a traditional aim of punishment, does not primarily serve an alternative purpose (such as treatment), and is excessive in relation to any alternative purpose assigned. 372 U. S., at 168-169.
This is not to say that each of the factors the Court mentioned in Martinez-Mendoza on balance argues here in favor of a constitutional characterization as "punishment." It is not to say that I have found "a single 'formula' for identifying those legislative changes that have a sufficient effect on
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