Cite as: 531 U. S. 250 (2001)
Thomas, J., concurring in judgment
itive factors is confinement. Id., at 99 (stating that one of the factors is "[w]hether the sanction involves an affirmative disability or restraint," quoting Mendoza-Martinez, supra, at 168 (internal quotation marks omitted)). Yet elevating confinement to dispositive status is exactly what respondent asks us to do when he advances his distinction between confinement and other sanctions. Because Hudson rejects such an argument, respondent's claim fails.
An implementation-based challenge to a facially civil statute would be as inappropriate in reviewing the statute in the "first instance," ante, at 263, 267 (majority opinion), as it is here. In the first instance, as here, there is no place for such a challenge in the governing jurisprudence. Hudson, which requires courts to look at the face of the statute, precludes implementation-based challenges at any time. Moreover, the implementation-based claim would be as "unworkable," ante, at 263 (majority opinion), in the first instance as in later challenges. Because the actual conditions of confinement may change over time and may vary from facility to facility, an implementation-based challenge, if successful, would serve to invalidate a statute that may be implemented without any constitutional infirmities at a future time or in a separate facility. To use the majority's words, the validity of a statute should not be "based merely on vagaries in the implementation of the authorizing statute." Ibid.
And yet the majority suggests that courts may be able to consider conditions of confinement in determining whether a statute is punitive. Ante, at 263, 266. To the extent that the conditions are actually provided for on the face of the statute, I of course agree. Cf. Hudson, supra, at 101 (directing courts to look at " 'the statute on its face' "). However, to the extent that the conditions result from the fact that the statute is not being applied according to its terms, the conditions are not the effect of the statute, but rather the
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