276
Stevens, J., dissenting
way runs afoul of Hudson v. United States, 522 U. S. 93 (1997). Properly read, Hudson acknowledges that resolving whether an Act is civil or criminal in nature can take into account whether the statutory scheme has a punitive effect.1 Id., at 99. What Hudson rejects is an approach not taken by respondent—one that bypasses this threshold question in favor of a dispositive focus on the sanction actually imposed on the specific individual.2 Id., at 101-102.
To be sure, the question whether an Act is civil or punitive in nature "is initially one of statutory construction." Ante, at 261 (majority opinion). However, under the majority's analysis, there is no inquiry beyond that of statutory construction. Ante, at 263. In essence, the majority argues that because the constitutional query must be answered definitively and because confinement is not a "fixed event," conditions of confinement should not be considered at all, except in the first challenge to a statute, when, as a practical matter,
1 In his concurrence, Justice Scalia concludes that, under the rule of Hudson v. United States, 522 U. S. 93 (1997), courts may never 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. See ante, at 267-268. Justice Thomas, concurring in the judgment, would take Hudson even further, precluding implementation-based challenges "at any time." Ante, at 273. However, for the reasons set out above, I believe that both concurrences misread Hudson. I also note that Hudson did not involve confinement. In cases that do involve confinement, this Court has relied on the principle that a statutory scheme must be deemed criminal if it was sufficiently punitive " 'either in purpose or effect.' " See Kansas v. Hendricks, 521 U. S. 346, 361, 367-369 (1997); Schall v. Martin, 467 U. S. 253, 269-271 (1984); Allen v. Illinois, 478 U. S. 364, 369, 373-374 (1986).
2 In response to my dissent, the Court has made it clear that it is simply holding that respondent may not prevail if he merely proves that the statute is punitive insofar as it has been applied to him. The question whether he may prevail if he can prove that the statute is punitive in its application to everyone confined under its provisions therefore remains open. In sum, the Court has rejected the narrow holding of the Ninth Circuit, but has not addressed the sufficiency of the broadest claim that petitioner has advanced.
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