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how long Hendricks and others like him should serve a criminal sentence. With his criminal record, after all, a life term may well have been the only sentence appropriate to protect society and vindicate the wrong. The concern instead is whether it is the criminal system or the civil system which should make the decision in the first place. If the civil system is used simply to impose punishment after the State makes an improvident plea bargain on the criminal side, then it is not performing its proper function. These concerns persist whether the civil confinement statute is put on the books before or after the offense. We should bear in mind that while incapacitation is a goal common to both the criminal and civil systems of confinement, retribution and general deterrence are reserved for the criminal system alone.

On the record before us, the Kansas civil statute conforms to our precedents. If, however, civil confinement were to become a mechanism for retribution or general deterrence, or if it were shown that mental abnormality is too imprecise a category to offer a solid basis for concluding that civil detention is justified, our precedents would not suffice to validate it.

JUSTICE BREYER, with whom JUSTICE STEVENS and JUSTICE SOUTER join, and with whom JUSTICE GINSBURG joins as to Parts II and III, dissenting.

I agree with the majority that the Kansas Sexually Violent Predator Act's "definition of 'mental abnormality'" satisfies the "substantive" requirements of the Due Process Clause. Ante, at 356. Kansas, however, concedes that Hendricks' condition is treatable; yet the Act did not provide Hendricks (or others like him) with any treatment until after his release date from prison and only inadequate treatment thereafter. These, and certain other, special features of the Act convince me that it was not simply an effort to commit Hendricks civilly, but rather an effort to inflict further punishment upon him. The Ex Post Facto Clause therefore pro

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hibits the Act's application to Hendricks, who committed his crimes prior to its enactment.

I

I begin with the area of agreement. This Court has held that the civil commitment of a "mentally ill" and "dangerous" person does not automatically violate the Due Process Clause provided that the commitment takes place pursuant to proper procedures and evidentiary standards. See Foucha v. Louisiana, 504 U. S. 71, 80 (1992); Addington v. Texas, 441 U. S. 418, 426-427 (1979). The Kansas Supreme Court, however, held that the Due Process Clause forbids application of the Act to Hendricks for "substantive" reasons, i. e., irrespective of the procedures or evidentiary standards used. The court reasoned that Kansas had not satisfied the "mentally ill" requirement of the Due Process Clause because Hendricks was not "mentally ill." In re Hendricks, 259 Kan. 246, 260-261, 912 P. 2d 129, 137-138 (1996). Moreover, Kansas had not satisfied what the court believed was an additional "substantive due process" requirement, namely, the provision of treatment. Id., at 257-258, 912 P. 2d, at 136. I shall consider each of these matters briefly.

A

In my view, the Due Process Clause permits Kansas to classify Hendricks as a mentally ill and dangerous person for civil commitment purposes. Allen v. Illinois, 478 U. S. 364, 370-371, 373–375 (1986). I agree with the majority that the Constitution gives States a degree of leeway in making this kind of determination. Ante, at 359; Foucha, supra, at 87 (O'CONNOR, J., concurring in part and concurring in judgment); Jones v. United States, 463 U. S. 354, 365, n. 13 (1983). But, because I do not subscribe to all of its reasoning, I shall set forth three sets of circumstances that, taken together, convince me that Kansas has acted within the limits that the Due Process Clause substantively sets.

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See

First, the psychiatric profession itself classifies the kind of problem from which Hendricks suffers as a serious mental disorder. E. g., American Psychiatric Assn., Diagnostic and Statistical Manual of Mental Disorders 524-525, 527-528 (4th ed. 1994) (describing range of paraphilias and discussing how stress aggravates pedophilic behavior); Abel & Rouleau, Male Sex Offenders, in Handbook of Outpatient Treatment of Adults 271 (M. Thase, B. Edelstein, & M. Hersen eds. 1990). I concede that professionals also debate whether or not this disorder should be called a mental "illness." R. Slovenko, Psychiatry and Criminal Culpability 57 (1995) (citing testimony that paraphilias are not mental illnesses); Schopp & Sturgis, Sexual Predators and Legal Mental Illness for Civil Commitment, 13 Behav. Sci. & The Law 437, 451-452 (1995) (same). Compare Brief for American Psychiatric Association as Amicus Curiae 26 (mental illness requirement not satisfied) with Brief for Menninger Clinic et al. as Amici Curiae 22-25 (requirement is satisfied). But the very presence and vigor of this debate is important. The Constitution permits a State to follow one reasonable professional view, while rejecting another. See Addington v. Texas, supra, at 431. The psychiatric debate, therefore, helps to inform the law by setting the bounds of what is reasonable, but it cannot here decide just how States must write their laws within those bounds. See Jones, supra, at 365, n. 13.

Second, Hendricks' abnormality does not consist simply of a long course of antisocial behavior, but rather it includes a specific, serious, and highly unusual inability to control his actions. (For example, Hendricks testified that, when he gets "stressed out," he cannot "control the urge" to molest children, see ante, at 355.) The law traditionally has considered this kind of abnormality akin to insanity for purposes of confinement. See, e. g., Minnesota ex rel. Pearson v. Probate Court of Ramsey Cty., 309 U. S. 270, 274 (1940) (upholding against a due process challenge the civil confinement of

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a dangerous person where the danger flowed from an "utter lack of power to control . . . sexual impulses'") (quoting State ex rel. Pearson v. Probate Court of Ramsey Cty., 205 Minn. 545, 555, 287 N. W. 297, 302 (1939)); 1788 N. Y. Laws, ch. 31 (permitting confinement of those who are "furiously mad"); In re Oakes, 8 Law Rep. 122, 125 (Mass. 1845) (Shaw, C. J.); A. Deutsch, The Mentally Ill in America 419-420 (1949) (tracing history of commitment of furiously mad people in 18th and 19th centuries); Dershowitz, The Origins of Preventative Confinement in Anglo-American Law-Part II: The American Experience, 43 U. Cin. L. Rev. 781 (1974). Indeed, the notion of an "irresistible impulse" often has helped to shape criminal law's insanity defense and to inform the related recommendations of legal experts as they seek to translate the insights of mental health professionals into workable legal rules. See also American Law Institute, Model Penal Code §4.01 (insanity defense, in part, rests on inability "to conform . . . conduct to the requirements of law"); A. Goldstein, The Insanity Defense 67-79 (1967) (describing “irresistible impulse" test).

Third, Hendricks' mental abnormality also makes him dangerous. Hendricks “has been convicted of . . . a sexually violent offense," and a jury found that he "suffers from a mental abnormality . . . which makes" him "likely to engage" in similar "acts of sexual violence" in the future. Kan. Stat. Ann. §§ 59-29a02, 59-29a03 (1994). The evidence at trial favored the State. Dr. Befort, for example, explained why Hendricks was likely to commit further acts of sexual violence if released. See, e. g., App. 248-254. And Hendricks' own testimony about what happens when he gets "stressed out" confirmed Dr. Befort's diagnosis.

Because (1) many mental health professionals consider pedophilia a serious mental disorder; and (2) Hendricks suffers from a classic case of irresistible impulse, namely, he is so afflicted with pedophilia that he cannot "control the urge" to molest children; and (3) his pedophilia presents a serious

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danger to those children, I believe that Kansas can classify Hendricks as "mentally ill" and "dangerous" as this Court used those terms in Foucha.

The Kansas Supreme Court's contrary conclusion rested primarily upon that court's view that Hendricks would not qualify for civil commitment under Kansas' own state civil commitment statute. The issue before us, however, is one of constitutional interpretation. The Constitution does not require Kansas to write all of its civil commitment rules in a single statute or forbid it to write two separate statutes each covering somewhat different classes of committable individuals. Moreover, Hendricks apparently falls outside the scope of the Kansas general civil commitment statute because that statute permits confinement only of those who "lac[k] capacity to make an informed decision concerning treatment." Kan. Stat. Ann. § 59-2902(h) (1994). The statute does not tell us why it imposes this requirement. Capacity to make an informed decision about treatment is not always or obviously incompatible with severe mental illness. Neither Hendricks nor his amici point to a uniform body of professional opinion that says as much, and we have not found any. See, e. g., American Psychiatric Assn., Guidelines for Legislation on the Psychiatric Hospitalization of Adults, 140 Am. J. Psychiatry 672, 673 (1983); Stromberg & Stone, A Model State Law on Civil Commitment of the Mentally Ill, 20 Harv. J. Legis. 275, 301-302 (1983); DeLand & Borenstein, Medicine Court, II, Rivers in Practice, 147 Am. J. Psychiatry 38 (1990). Consequently, the boundaries of the Federal Constitution and those of Kansas' general civil commitment statute are not congruent.

B

The Kansas Supreme Court also held that the Due Process Clause requires a State to provide treatment to those whom it civilly confines (as "mentally ill" and "dangerous"). It found that Kansas did not provide Hendricks with significant