REHNQUIST, C. J., dissenting

also Bruner v. United States, 343 U. S. 112, 116–117, and n. 8 (1952) (“Congress has not altered the nature or validity of petitioner's rights or the Government's liability but has simply reduced the number of tribunals authorized to hear and determine such rights and liabilities”); Hallowell v. Commons, 239 U. S. 506, 508 (1916); Sherman v. Grinnell, 123 U. S. 679, 680 (1887); Assessors v. Osbornes, 9 Wall. 567, 575 (1870); Ex parte McCardle, 7 Wall. 506, 514 (1869); Insurance Co. v. Ritchie, 5 Wall. 541, 544–545 (1867). This is because such statutes “'speak to the power of the court rather than to the rights or obligations of the parties.'” Landgraf, supra, at 274 (quoting Republic Nat. Bank of Miami v. United States, 506 U. S. 80, 100 (1992) (THOMAS, J., concurring)); see also 511 U. S., at 293 (SCALIA, J., concurring in judgment) (“Our jurisdiction cases are explained, I think, by the fact that the purpose of provisions conferring or eliminating jurisdiction is to permit or forbid the exercise of judicial power—so that the relevant event for retroactivity purposes is the moment at which that power is sought to be exercised"). This is the principle most relevant to the case at hand.

There is a good argument that $2254(d) is itself jurisdictional. See Brown v. Allen, 344 U. S. 443, 460 (1953) (“Jurisdiction over applications for federal habeas corpus is controlled by statute”); Sumner v. Mata, 449 U. S. 539, 547, n. 2 (1981) (“The present codification of the federal habeas statute is the successor to “the first congressional grant of jurisdiction to the federal courts,' and the 1966 amendments embodied in $ 2254(d) (now codified, as amended by the AEDPA, at $ 2254(e)] were intended by Congress as limitations on the exercise of that jurisdiction” (quoting Preiser v. Rodriguez, supra, at 485)); cf. Arkansas v. Farm Credit Servs. of Central Ark., 520 U. S. 821, 826 (1997) (explaining that the Tax Injunction Act—which has operative language similar to

disparaged our longstanding practice of applying jurisdiction-ousting statutes to pending cases.

REHNQUIST, C. J., dissenting

$ 2254(d) (“The district courts shall not enjoin ...”)—is “first and foremost a vehicle to limit drastically federal district court jurisdiction to interfere with so important a local concern as the collection of taxes” (internal quotation marks omitted)). But even if it is not jurisdictional, it shares the most salient characteristic of jurisdictional statutes: Its commands are addressed to courts rather than to individuals. Section 2254(d) does not address criminal defendants, or even state prosecutors; it prescribes or proscribes no private conduct. Instead, it is addressed directly to federal courts, providing, “[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted ... unless ...." (Emphasis added.)

Whether the approach is framed in terms of “retroactive effect," as the Landgraf majority put it, 511 U. S., at 280, or in terms of “the relevant activity that the rule regulates,” as JUSTICE SCALIA's concurrence put it, see id., at 291 (opinion concurring in judgment), our longstanding practice of applying procedural, prospective, and jurisdiction-ousting statutes to pending cases must play an important part in the decision. These principles all favor application of $ 2254(d) to pending cases.

It is a procedural statute, regulating prospective relief, and addressed directly to federal courts and removing their power to give such relief in specified circumstances. Our cases therefore strongly suggest that, absent congressional direction otherwise, we should apply $ 2254d) to pending cases. This is not because of any peculiar characteristic intrinsic to the writ of habeas corpus, but rather because modifications to federal courts' authority to issue the writ are necessarily of that stripe—procedural, prospective, and addressed to courts. It is therefore not surprising that the parties have not pointed us to a single case where we have found a modification in the scope of habeas corpus relief inapplicable to pending cases. To the contrary, respondent and

REHNQUIST, C. J., dissenting

amici have pointed instead to the uniform body of our cases applying such changes to all pending cases. This has been true both of statutory changes in the scope of the writ, see, e. g., Gusik v. Schilder, 340 U. S. 128, 131–133, and n. 4 (1950) (applying 1948 habeas amendments to pending claims); Smith v. Yeager, 393 U. S. 122, 124-125 (1968) (per curiam) (applying 1966 habeas amendments to pending claims); Carafas v. LaVallee, 391 U. S. 234, 239 (1968) (same); Felker v. Turpin, 518 U. S. 651 (1996) (applying different section of the AEDPA to pending case), and of judicial changes, see, e.g., Stone v. Powell, 428 U. S. 465, 495, n. 38 (1976) (rejecting petitioner's contention that change in law should apply prospectively); Sumner v. Mata, supra, at 539, 549–551 (applying presumption of correctness of state-court findings of fact to pending case); Wainwright v. Sykes, 433 U. S. 72 (1977) (applying the cause and prejudice doctrine to pending case); Brecht v. Abrahamson, 507 U. S. 619, 638–639 (1993) (applying actual prejudice standard to pending case).

Because the Court's inquiry is incomplete, I believe it has reached the wrong result in this case. I would affirm the judgment of the Court of Appeals.




No. 95–1649. Argued December 10, 1996—Decided June 23, 1997*

Kansas' Sexually Violent Predator Act establishes procedures for the civil

commitment of persons who, due to a “mental abnormality” or a “personality disorder,” are likely to engage in “predatory acts of sexual violence.” Kansas filed a petition under the Act in state court to commit respondent (and cross-petitioner) Hendricks, who had a long history of sexually molesting children and was scheduled for release from prison. The court reserved ruling on Hendricks' challenge to the Acts constitutionality, but granted his request for a jury trial. After Hendricks testified that he agreed with the state physician's diagnosis that he suffers from pedophilia and is not cured and that he continues to harbor sexual desires for children that he cannot control when he gets "stressed out, the jury determined that he was a sexually violent predator. Finding that pedophilia qualifies as a mental abnormality under the Act, the court ordered him committed. On appeal, the State Supreme Court invalidated the Act on the ground that the precommitment condition of a “mental abnormality” did not satisfy what it perceived to be the “substantive” due process requirement that involuntary civil commitment must be predicated on a “mental illness” finding. It did not ad

dress Hendricks' ex post facto and double jeopardy claims. Held:

1. The Act's definition of “mental abnormality" satisfies "substantive” due process requirements. An individual's constitutionally protected liberty interest in avoiding physical restraint may be overridden even in the civil context. Jacobson v. Massachusetts, 197 U. S. 11, 26. This Court has consistently upheld involuntary commitment statutes that detain people who are unable to control their behavior and thereby pose a danger to the public health and safety, provided the confinement takes place pursuant to proper procedures and evidentiary standards. Foucha v. Louisiana, 504 U. S. 71, 80. The Act unambiguously requires a precommitment finding of dangerousness either to one's self or to others, and links that finding to a determination that the person suffers from a “mental abnormality” or “personality disorder.” Generally, this Court has sustained a commitment statute if it couples proof of dangerousness

*Together with No. 95–9075, Hendricks v. Kansas, also on certiorari to the same court.


with proof of some additional factor, such as a “mental illness” or “mental abnormality,” see, e.g., Heller v. Doe, 509 U. S. 312, 314-315, for these additional requirements serve to limit confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control. The Act sets forth comparable criteria with its precommitment requirement of “mental abnormality” or “personality disorder.” Contrary to Hendricks' argument, this Court has never required States to adopt any particular nomenclature in drafting civil commitment statutes and leaves to the States the task of defining terms of a medical nature that have legal significance. Cf. Jones v. United States, 463 U. S. 354, 365, n. 13. The legislature is therefore not required to use the specific term “mental illness” and is free to adopt any similar term. Pp. 356-360.

2. The Act does not violate the Constitution's double jeopardy prohibition or its ban on ex post facto lawmaking. Pp. 360–371.

(a) The Act does not establish criminal proceedings, and involuntary confinement under it is not punishment. The categorization of a particular proceeding as civil or criminal is a question of statutory construction. Allen v. Illinois, 478 U. S. 364, 368. Nothing on the face of the Act suggests that the Kansas Legislature sought to create anything other than a civil commitment scheme. That manifest intent will be rejected only if Hendricks provides the clearest proof that the scheme is so punitive in purpose or effect as to negate Kansas' intention to deem it civil. United States v. Ward, 448 U. S. 242, 248–249. He has failed to satisfy this heavy burden. Commitment under the Act does not implicate either of the two primary objectives of criminal punishment: retribution or deterrence. Its purpose is not retributive: It does not affix culpability for prior criminal conduct, but uses such conduct solely for evidentiary purposes; it does not make criminal conviction a prerequisite for commitment; and it lacks a scienter requirement, an important element in distinguishing criminal and civil statutes. Nor can the Act be said to act as a deterrent, since persons with a mental abnormality or personality disorder are unlikely to be deterred by the threat of confinement. The conditions surrounding confinement-essentially the same as conditions for any civilly committed patient-do not suggest a punitive purpose. Although the commitment scheme here involves an affirmative restraint, such restraint of the dangerously mentally ill has been historically regarded as a legitimate nonpunitive objective. Cf. United States v. Salerno, 481 U. S. 739, 747. The confinement's potentially indefinite duration is linked, not to any punitive objective, but to the purpose of holding a person until his mental abnormality no longer causes him to be a threat to others. He is thus permitted immediate release upon a showing that he is no longer dangerous, and the longest

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