Cite as: 531 U. S. 250 (2001)
Thomas, J., concurring in judgment
"first instance" and a subsequent challenge is one without a difference.
Before proceeding, it is important to clarify the issue in this case. The majority adopts the Ninth Circuit's nomenclature and refers to respondent's claim as an "as-applied" challenge, see, e. g., ante, at 263, but that label is at best misleading. Typically an "as-applied" challenge is a claim that a statute, "by its own terms, infringe[s] constitutional freedoms in the circumstances of [a] particular case." United States v. Christian Echoes Nat. Ministry, Inc., 404 U. S. 561, 565 (1972) (per curiam) (emphasis added). In contrast, respondent's claim is not that Washington's Community Protection Act of 1990 (Washington Act or Act), Wash. Rev. Code § 71.09.010 et seq. (1992), "by its own terms" is unconstitutional as applied to him,1 but rather that the statute is not being applied according to its terms at all.2 Respondent essentially contends that the actual conditions of confinement, notwithstanding the text of the statute, are punitive and incompatible with the Act's treatment purpose. See ante, at 259-260.
1 Respondent has made the claim that the terms of the Washington Act are criminal so that his confinement under the Act thus violates the Double Jeopardy and Ex Post Facto Clauses, but this claim was rejected below—first by the Washington Supreme Court, In re Young, 122 Wash. 2d 1, 18-23, 857 P. 2d 989, 996-999 (1993), and then by the Ninth Circuit, Young v. Weston, 192 F. 3d 870, 874 (1999)—and has not been presented to this Court.
2 Disagreeing with this characterization, the majority contends that the statute is silent with respect to conditions of confinement. See ante, at 264. Even if the majority were correct—which it is not, see Wash. Rev. Code § 71.09.070 (requiring annual examinations of each person's mental conditions); § 71.09.080(2) (Supp. 2000) (requiring "adequate care and individualized treatment"); see also In re Young, supra, at 18-23, 857 P. 2d, at 996-999 (discussing similar provisions on conditions of confinement in 1990 version of Washington Act)—the question on which we granted certiorari expressly assumes that the statute "mandate[s]" the "conditions of confinement" that petitioner seeks. See Pet. for Cert. i.
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