272
Thomas, J., concurring in judgment
A challenge, such as this one, to the implementation of a facially civil statute is not only "unworkable," as the majority puts it, ante, at 263, but also prohibited by our decision in Hudson v. United States, 522 U. S. 93 (1997). In Hudson, we held that, when determining whether a statute is civil or criminal, a court must examine the "statute on its face." Id., at 101, quoting Kennedy v. Mendoza-Martinez, 372 U. S. 144, 169 (1963) (internal quotation marks omitted). In so holding, we expressly disavowed the approach used in United States v. Halper, 490 U. S. 435, 448 (1989), which evaluated the "actual sanctions imposed." 522 U. S., at 101, quoting Halper, supra, at 447 (internal quotation marks omitted). Respondent's claim is flatly inconsistent with the holding of Hudson because respondent asks us to look beyond the face of the Washington Act and to examine instead the actual sanctions imposed on him, that is, the actual conditions of confinement. Respondent argues, and the Ninth Circuit held, that Hudson's reach is limited to the particular sanctions involved in that case—monetary penalties and occupational disbarment—and does not apply here, where the sanction is confinement. Hudson, however, contains no indication whatsoever that its holding is limited to the specific sanctions at issue. To the contrary, as we explained in Hudson, a court may not elevate to dispositive status any of the factors that it may consider in determining whether a sanction is criminal.3 522 U. S., at 101. One of these nondispos-3 The Hudson Court referred to the seven factors listed in Kennedy v. Mendoza-Martinez, 372 U. S. 144 (1963), as "useful guideposts": "(1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment—retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned." 522 U. S., at 99-100, quoting Mendoza-Martinez, supra, at 168-169 (internal quotation marks and alteration omitted).
Page: Index Previous 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NextLast modified: October 4, 2007