Cite as: 531 U. S. 250 (2001)
Scalia, J., concurring
fects of the statute," post, at 277, completely open ended. In one case, the Court refused to consider alleged confinement conditions because the parties had entered into a consent decree to improve conditions. Flores, 507 U. S., at 301. The Court presumed that conditions were in compliance with the requirements of the consent decree. Ibid. In another case, the Court found that anecdotal case histories and a statistical study were insufficient to render a regulatory confinement scheme punitive. Martin, 467 U. S., at 272. In such cases, we have decided whether a confinement scheme is punitive notwithstanding the inherent difficulty in ascertaining current conditions and predicting future events.
We have not squarely addressed the relevance of conditions of confinement to a first instance determination, and that question need not be resolved here. An Act, found to be civil, cannot be deemed punitive "as applied" to a single individual in violation of the Double Jeopardy and Ex Post Facto Clauses and provide cause for release.
The judgment of the United States Court of Appeals for the Ninth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Scalia, with whom Justice Souter joins, concurring.
I agree with the Court's holding that a statute, "found to be civil [in nature], cannot be deemed punitive" or criminal "as applied" for purposes of the Ex Post Facto and Double Jeopardy Clauses. Ante this page. The Court accurately observes that this holding gives us "no occasion to consider . . . the extent to which a court may look to actual conditions of confinement and implementation of the statute to determine in the first instance whether a confinement scheme is civil in nature." Ante, at 266. I write separately to dissociate myself from any implication that this reserved point may be an open question. I do not regard it as such since, three
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