1 IN THE SUPREME COURT OF THE UNITED STATES 2 - - - - - - - - - - - - - - - -X 3 MARK SELING, SUPERINTENDENT, : 4 SPECIAL COMMITMENT CENTER, : 5 Petitioners : 6 v. : No. 99-1185 7 ANDRE BRIGHAM YOUNG : 8 - - - - - - - - - - - - - - - -X 9 Washington, D.C. 10 Tuesday, October 31, 2000 11 The above-entitled matter came on for oral 12 argument before the Supreme Court of the United States at 13 11:05 a.m. 14 APPEARANCES: 15 MAUREEN A. HART, ESQ., Senior Assistant Attorney General, 16 Olympia, Washington; on behalf of the Petitioner. 17 ROBERT C. BORUCHOWITZ, ESQ., Seattle, Washington; on 18 behalf of the Respondent. 19 20 21 22 23 24 25 1 1 C O N T E N T S 2 ORAL ARGUMENT OF PAGE 3 MAUREEN A. HART, ESQ. 4 On behalf of the Petitioner 3 5 ORAL ARGUMENT OF 6 ROBERT C. BORUCHOWITZ, ESQ. 7 On behalf of the Respondent 24 8 REBUTTAL ARGUMENT OF 9 MAUREEN A. HART, ESQ. 10 On behalf of the Petitioner 50 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 1 P R O C E E D I N G S 2 (11:05 a.m.) 3 CHIEF JUSTICE REHNQUIST: We'll hear argument 4 next in Number 99-1185, Mark Seling v. Andre Brigham 5 Young. 6 Ms. Hart. 7 ORAL ARGUMENT OF MAUREEN A. HART 8 ON BEHALF OF THE PETITIONER 9 MS. HART: Mr. Chief Justice and may it please 10 the Court: 11 This case presents a narrow but important issue, 12 and it concerns how this Court determines the threshold 13 question of whether a statute is civil or criminal. This 14 threshold inquiry is important because it establishes what 15 constitutional rules apply to a statute and that the 16 statute must satisfy, and also what constitutional 17 protections are available to people who are subject to the 18 statute. 19 It also is important because this same threshold 20 inquiry applies to many kinds of statutes, not just 21 statutes such as Washington's, providing for the 22 commitment of sexually violent predators. It applies to 23 numerous statutes, including others that deal with 24 confinement such as more generalized civil commitment 25 laws, commitments for drug or alcohol treatment, statutes 3 1 such as quarantine statutes, and statutes relating to 2 pretrial detention. 3 In this case, the Ninth Circuit rejected the 4 principle that whether a law is civil or criminal is a 5 threshold question based on legislative intent and the 6 face of the statute. Instead, the Ninth Circuit held that 7 Washington's admittedly civil law may be divested of its 8 civil nature and converted into a criminal law if 9 conditions of confinement at Washington's Special 10 Commitment Center are punitive. 11 In other words, the Ninth Circuit held that the 12 fundamental nature of a law as either civil or criminal 13 may vary and that the same statute may be both civil and 14 criminal at different times and in different places. 15 The Ninth Circuit's decision is fundamentally 16 wrong. It conflicts with the holding of this Court in 17 Hudson v. United States. It doesn't serve -- 18 QUESTION: Ms. Hart, I suppose you could have a 19 situation where on habeas some prisoner, some person being 20 held under a statutory scheme of this type could come in 21 and say, on Federal habeas, I'm being held under 22 circumstances that violate the Constitution, and make an 23 individual challenge, isn't that so? 24 MS. HART: I think that in habeas an individual 25 who's subject to confinement could come in and the purpose 4 1 of habeas would be for that person to indicate that for 2 some constitutional reason the very fact or duration of 3 his or her confinement violates the Constitution. 4 QUESTION: Right. Is that what this person is 5 doing, or is there something different? 6 MS. HART: No, Your Honor. In fact, I think 7 that what Mr. Young has here essentially is a civil rights 8 claim that the conditions of confinement at the Special 9 Commitment Center are not what they ought to be. 10 QUESTION: Now, there is an ongoing 1983 class 11 action, is there, covering this very facility? 12 MS. HART: Yes, there is, Your Honor. 13 QUESTION: And under that action, presumably 14 this respondent would be affected by the outcome of that? 15 MS. HART: I believe that's correct. The 16 Special Commitment Center is under the supervision of the 17 Federal District Court in Washington at the moment. That 18 particular case basically deals with issues of whether 19 there's adequate treatment at the Special Commitment 20 Center. 21 QUESTION: Why is that a constitutional claim? 22 I mean, what constitutional claim does he have other than 23 the double jeopardy claim? 24 MS. HART: In this case, Your Honor? 25 QUESTION: Ex post facto. 5 1 QUESTION: Or ex post facto. 2 QUESTION: Both. Both. 3 MS. HART: He would have each of those claims, 4 and in this case, provided he -- that our statute is 5 punitive -- 6 QUESTION: No, no, but I mean, assuming the 7 statute is not punitive, does he have any other 8 constitutional relief for the fact that he is not getting 9 the treatment which the statute provides he's supposed to 10 be given? Is that a constitutional claim, or just a State 11 law claim? 12 MS. HART: He would have, certainly under 13 Washington statute, a State law claim in the sense -- 14 QUESTION: Correct. 15 MS. HART: -- that the statute requires adequate 16 treatment and -- 17 QUESTION: Right, but what other Federal 18 constitutional claim would he have? 19 MS. HART: The only Federal constitutional claim 20 that I believe might otherwise be involved here would be a 21 claim that goes to conditions of confinement on some sort 22 of -- 23 QUESTION: Cruel and unusual punishment? He's 24 not -- 25 MS. HART: No, not with respect to any issues 6 1 that would flow from the criminal law, Your Honor. There 2 are -- certain decisions of this Court will not precisely 3 reach an issue that I read to suggest that individuals who 4 are deprived of their liberty are entitled to certain 5 minimal adequate conditions of confinement as perhaps a 6 matter of substantive due process. 7 QUESTION: And is that the basis for the -- is 8 it the Turay suit? There is a pending 1983 case, so we 9 don't have to speculate, at least, about the basis of that 10 lawsuit. What is the constitutional right that's invoked 11 in that litigation? 12 MS. HART: In the litigation that's ongoing 13 currently -- 14 QUESTION: Yes. 15 MS. HART: -- Justice Ginsburg, the right that 16 is being invoked is essentially a right that one might 17 find derivative from your decision in Youngberg, and that 18 is a right to a certain level of mental health treatment. 19 QUESTION: Well, in effect the claim is that if 20 you commit me for treatment, you've got to treat me. I've 21 got a substantive due process right to that effect -- 22 MS. HART: That's correct, Your Honor. 23 QUESTION: -- if I am treatable. But that's the 24 kernel of it, isn't it? 25 MS. HART: That's the essence of the claim, Your 7 1 Honor. 2 QUESTION: Well, Youngberg certainly didn't go 3 that far. 4 MS. HART: It didn't, Your Honor, but I believe 5 that that's where the genesis of the claim in this case, 6 and as I say, there's certain language in Youngberg that 7 would perhaps lead one in that particular direction. 8 QUESTION: But turning to this case, when at the 9 outset a determination is made for an order for a civil 10 commitment, is there no basis for the court to determine 11 and to look at how the disease is defined, how the 12 treatment is defined, what treatment facilities are 13 available in order to determine whether or not it's 14 punitive? 15 MS. HART: Your Honor -- 16 QUESTION: Isn't there some initial assessment 17 that must be made? 18 MS. HART: No, Your Honor. This Court has, for 19 purposes of civil commitment has required two predicates. 20 One is a mental condition, and the other is an existing 21 dangerousness. 22 Once that civil commitment is affected, however, 23 Your Honor, there are certain claims that can be made and 24 are being made in the State of Washington that the 25 individual subject to that commitment is entitled to 8 1 adequate care and an adequate level of treatment, but that 2 doesn't go to -- the conditions of confinement, Your 3 Honor, wouldn't go to the face of the statute, or whether 4 the statute itself is punitive. This Court -- 5 QUESTION: Why is that? I mean, suppose you 6 have a compulsive ax murderer, and you know, he's served 7 his time, but he's still a compulsive ax murderer. You 8 could not commit him simply because he's dangerous and 9 then not provide treatment? 10 Or what about quarantine of someone who has a 11 communicable disease? In order to quarantine, do you have 12 to provide treatment? 13 MS. HART: Your Honor, I don't find an answer to 14 those questions precisely in this Court's jurisprudence. 15 It does seem to me that one of the things this Court has 16 said, however, on a due process level, is that a 17 statute -- if the State is going to claim that it's 18 committing an individual for treatment, that's what its 19 statutory purpose is, then the statute ought to relate to 20 that in terms of the nature of the confinement and the 21 duration of the confinement. 22 QUESTION: Does this statute make that 23 representation, that it's confining him for treatment, or 24 does it simply talk about the abnormality, mental 25 abnormality? 9 1 MS. HART: Your Honor, this statute confines for 2 treatment and in order to protect the community from these 3 individuals, so it's -- statutorily it serves both 4 purposes. 5 QUESTION: Suppose that he makes out his claim. 6 Suppose he proves what he's trying to prove. Suppose he 7 proves that there's virtually no treatment for people who 8 could benefit by it, that it's virtually impossible to be 9 released to half-way houses even though certain medical 10 people would say he was safe enough for that. 11 He proves that it's being run by prison 12 officials for the most part, and not by mental health 13 officials, and that really there isn't much segregation 14 from the general prison population, and they don't seem to 15 have the status of ordinary mentally ill people confined 16 for civil purposes. Assume he proves that, would that 17 then violate the statute? 18 MS. HART: That would be inconsistent with 19 Washington's statute. 20 QUESTION: So it would violate the statute. So 21 you've read his claims, and you're saying that if he 22 proves what he says he's going to prove, then the 23 conditions violate Washington's statute. 24 MS. HART: Washington's statute specifically 25 requires that individuals -- 10 1 QUESTION: Yes, but I'd like a yes or no answer 2 to my question. 3 MS. HART: I believe my answer to the question, 4 as I understand it, Justice Breyer, is yes. 5 QUESTION: Thank you. 6 QUESTION: That wouldn't afford a basis for any 7 Federal relief, I take it, if it's simply a claim that the 8 confinement violates the Washington statute. 9 MS. HART: No, Your Honor, that would not. One 10 of the things about this statute is that Mr. Young and 11 others like him have a remedy under State law, and that 12 remedy, because of the way our statute is read, is to 13 ensure and press litigation, as is being done in 14 Washington, that the appropriate level of care and 15 treatment is being provided, but he -- but it -- 16 QUESTION: Well, if you can find for us a civil 17 purpose that clearly cannot be fulfilled, is that one 18 index at least, or one indicator of an intent to punish? 19 MS. HART: Well, Your Honor, this Court has 20 pointed to a number of indicators, all of them determined 21 facially under the Court's jurisprudence in Hudson, such 22 as whether there is a confinement in the first place, what 23 is the purpose, and whether the statute is rationally 24 related and fulfills that -- 25 QUESTION: So you read our precedents as saying 11 1 our inquiry must be simply confined to a facial inquiry, 2 and not to the reality of what the treatment is or is 3 going to be? 4 MS. HART: Whether a statute is criminal or 5 civil -- civil, excuse me -- this Court has held is a 6 facial matter. That's precisely what the Court held in 7 Hudson, and in doing so disavowed an approach that it had 8 taken in Helper that looked at the actual effects, but 9 -- or conditions of confinement would be the equivalent 10 here. 11 But Your Honor, that doesn't mean that people 12 like Mr. Young are without a remedy, or that they are left 13 unable to secure the -- 14 QUESTION: May I put the question just a little 15 differently? Assume our first case holds that a statute 16 is civil, a facial attack on the statute as being criminal 17 authorization for double jeopardy and ex post facto 18 violation, and we reject that by saying the statute on its 19 face is a civil statute. 20 Does that mean that every application of that 21 statute that might subsequently be challenged would have 22 to come up with the same answer? In other words, is it 23 conceivable that a statute which is valid in response to a 24 facial attack could nevertheless be invalid as applied in 25 particular cases? 12 1 MS. HART: I don't believe so, Your Honor, and I 2 believe that's essentially what this Court held in Hudson 3 when it overruled Helper. 4 QUESTION: Wasn't there language -- perhaps it 5 was in Hendrix -- that the first question is, does the 6 legislature mean to enact a civil or criminal provision, 7 and then the second question is, is the scheme so punitive 8 in purpose or effect, and I emphasize or effect, as to 9 transform the civil remedy into criminal penalty? What 10 does that mean, yes, the legislature wants a civil 11 statute, not a criminal statute, but it is so punitive in 12 effect as to be transformed from civil to criminal? 13 MS. HART: Well, Your Honor, I believe two 14 things about that. First, that Hudson stands for the 15 proposition and reaffirms the notion that the effects test 16 for whether a statute is civil or criminal is a facial 17 test, and having given you that answer, I believe that 18 what the effects test, or what that language means, is 19 what are the necessary consequences of the very statutory 20 provisions that whether it's Congress or State legislature 21 has provided. That would be the effects. 22 QUESTION: Yes, but if the statute has been 23 administered for some period of time before the 24 adjudication, I take it that the experience under that 25 administration may be considered in what we are calling a 13 1 facial inquiry. 2 MS. HART: I'm afraid I disagree with that, Your 3 Honor. 4 QUESTION: Well, do you have to disagree 5 entirely? I suppose you could take into account the 6 administration in determining what the meaning of 7 ambiguous provisions of the statute are. That wouldn't be 8 harmful, I suppose. But you wouldn't say you could take 9 into account the implementation to such a degree that you 10 would allow the implementation to contradict the very 11 terms of the statute, which is what you're talking about 12 here. 13 MS. HART: That's correct, Your Honor, and 14 that's essentially the essence of the claim before the 15 Court. 16 QUESTION: If that's -- 17 QUESTION: You win if -- no, please. 18 QUESTION: Well, all right. If that's so, I 19 take it -- and this is just an elaboration of what I asked 20 you before. 21 I don't know if you're familiar enough with 22 Hendrix to refer to it by page number, but at the end, on 23 page 368, the Court sums up the factors in the statute 24 that make it civil, and they include things, to bring it 25 to your mind, the State's disavowed any punitive intent, 14 1 it's limited its confinement to a small segment, and 2 particularly -- there are procedural safeguards, they're 3 segregated, they have the same status as the other civilly 4 committed, recommended treatment is possible, et cetera. 5 Does that call to mind the paragraph that you're 6 probably familiar with? 7 MS. HART: Yes, it does. 8 QUESTION: Okay. Am I right in saying from your 9 prior answer that you think your statute meets all those? 10 MS. HART: Yes. 11 QUESTION: And that insofar as the facts in a 12 particular case don't meet them, they violate the statute. 13 MS. HART: That's -- that would be true, Your 14 Honor, and I would point out that the language that you're 15 dealing, or you're quoting from, from Hendrix, is language 16 that for each of those propositions one can go back to the 17 Hendrix opinion and find that the source of those things, 18 such as the procedural protections, the segregation from 19 the prison population, within the statute, just as one can 20 in the State of Washington. 21 And as you noted in writing the dissent in 22 Hendrix -- 23 QUESTION: Yes. 24 MS. HART: -- the Kansas law, our State law, 25 Washington State law was a model for the Kansas law. 15 1 They're essentially identical, except for some places 2 where Washington's -- 3 QUESTION: Yes, but it's important they be 4 interpreted the same way. They -- the majority 5 interpreted that statute in Kansas to require certain 6 things, like adequate treatment, and I take it -- at least 7 that's how I read it. That's -- the words are there, and 8 the -- so -- it's important to me that you're saying that 9 if those are not being given in fact, then the remedy for 10 the prisoner is to sue under the State law and say, this 11 is what the State law means, and I'm not getting it. 12 MS. HART: I believe that a resident at the 13 center would have that opportunity under State law to -- 14 QUESTION: Insofar as this case is concerned, I 15 take it, you leave open the possibility -- you certainly 16 don't concede it, but you leave open the possibility that 17 there could be a Federal substantive due process claim on 18 the theory that we threw out a moment ago, you and I were 19 talking about a moment ago, which I guess has been 20 asserted, and that is, if the State's purpose in 21 commitment is treatment, and I have a treatable condition 22 and they don't treat me, that is a violation of due 23 process. I'm not asking you to concede that that theory 24 should prevail, but that is at least a possible assertion 25 that could be made in a Federal court. 16 1 MS. HART: I believe that's true, Your Honor, 2 and I would like to note that since the question really 3 before this Court is that narrow question of how the Court 4 determines whether a statute is civil or criminal, that 5 that kind of issue and concern is one that really is 6 reflected in, I think in part, or you can find in part in 7 the factors that this Court looks at facially. 8 QUESTION: Right, and I take it that the -- that 9 for you to win this case the proposition that your case 10 really turns on is not even a broad proposition, or a 11 broad set of rules about how we determine whether it's 12 criminal or civil, but rather, your case depends on the 13 proposition that it doesn't vary from individual to 14 individual. It is either civil, or it is criminal, and 15 that the details of individual treatment do not affect 16 that determination. 17 MS. HART: That's correct, Your Honor. 18 QUESTION: And perhaps it's even narrower than 19 has been suggested judging from your question presented. 20 What we're actually talking about is, does the -- was the 21 Ninth Circuit wrong in saying that this statute as 22 presented to it could violate either the Ex Post Facto 23 Clause or the Double Jeopardy Clause? 24 MS. HART: That's correct. Those are the only 25 two claims involved in this case and before this Court. 17 1 QUESTION: How does one respond to the, what I 2 understood to be the complaint in this case, which is, I 3 am civilly committed, and yet I'm housed in a prison and 4 I'm treated worse than I was treated when I was serving a 5 sentence of conviction? 6 That's essentially, as I take it, his complaint. 7 There's no change in my circumstances from the time I was 8 incarcerated as punishment. If anything, I'm being 9 treated worse now than I was. How does one answer that 10 claim? 11 MS. HART: I think the way one answers it in the 12 State of Washington first of all has been referenced by 13 other members of the Court, is that Washington's law 14 requires the provision of adequate care and individualized 15 treatment to these individuals. 16 The other thing that I think answers, or helps 17 answer that, Your Honor, is that Washington's law, just 18 like Kansas' law, is a civil commitment statute, and once 19 having enacted a civil commitment statute, there are 20 certain consequences that fall from that for a State, and 21 among them is to provide care more considerate than one 22 would receive or is constitutionally entitled to receive 23 in a penal institution. 24 QUESTION: My understanding is that he did have 25 a proceeding in the State court before he came to Federal 18 1 court, is that correct? 2 MS. HART: Yes. There is a direct appeal by 3 Mr. Young from his commitment. 4 QUESTION: It was only that, so at that stage he 5 wasn't complaining about the treatment he was in fact 6 getting. He was complaining about the right to continue 7 confinement, is that so? 8 MS. HART: I'm sorry, I missed the last part of 9 your -- 10 QUESTION: I asked if in his States court 11 litigation he was challenging, as he is now, that he is 12 being kept in confinement, that he's being treated no 13 better and, in fact, worse than he was treated when he was 14 in prison. 15 MS. HART: Your Honor, that really wasn't an 16 issue on the direct appeal. When the Washington supreme 17 court affirmed Mr. Young's commitment it remanded the case 18 to the court of appeals for two purposes, to determine 19 whether a less restrictive alternative -- or actually for 20 one purpose, to determine whether a less restrictive 21 alternative to total confinement would be appropriate to 22 Mr. Young, and in the context of that proceeding, at the 23 outset of that proceeding, Mr. Young challenged the 24 conditions of confinement at the Special Commitment 25 Center. 19 1 There was a hearing of some week's duration on 2 that issue, and the court declined to conclude that the 3 conditions of confinement were punitive. 4 QUESTION: So there is a final adjudication 5 after the remand from the Washington supreme court. 6 MS. HART: Your Honor, my understanding, and it 7 is correct, it's not simply my understanding, is that 8 there has been an appeal from that, and that appeal is -- 9 that appeal to the court of appeals is pending now. 10 In other words, the supreme court of Washington 11 sent this back to the trial court on a less restrictive 12 issue, less restrictive alternative. In the context of 13 that proceeding, Mr. Young raised the issue of conditions 14 of confinement, was not successful there, and is now 15 appealing that to the Court of Appeals of the State of 16 Washington, and that matter is pending. 17 QUESTION: You described the first instance 18 decision in rather careful words. You say that they 19 declined to find that. Did they reject such a claim? Did 20 they say, even if he would establish that he's being 21 treated no better and perhaps worse, he still has no 22 claim. What was the reason he was -- 23 MS. HART: The court -- this -- the order from 24 this proceeding the Court will find at page JA 49, the 25 joint appendix at 49, and the court after trial simply 20 1 concluded -- let me see -- simply concluded that he had 2 not demonstrated that the conditions were punitive. 3 QUESTION: And the point was that if they were 4 punitive they would have violated the Washington statute. 5 Was that the point of the proceeding? 6 MS. HART: I believe the proceeding itself was a 7 generalized challenge to conditions of confinement at the 8 Special Commitment Center. 9 QUESTION: As violating what? 10 MS. HART: I believe that the focus there was a 11 constitutional type substantive due process claim, Justice 12 Scalia. 13 QUESTION: What was the mental disorder, or the 14 personality disorder, or the mental abnormality that was 15 established here? 16 MS. HART: Mr. Young was found to suffer from a 17 severe paraphilia characterized either by sexual sadism or 18 rape, as well as a severe antisocial personality disorder. 19 QUESTION: What is paraphilia, if that's the 20 word? 21 MS. HART: It's essentially a mental condition 22 that is characterized by recurrent and intense urges and 23 fantasies, sexual fantasies with respect to things that 24 are either nonhuman objects, nonconsenting adults, 25 children -- it's a pathological, pathologically driven 21 1 mental condition. 2 QUESTION: Does a person have that disorder if 3 he has or she has volitional control? 4 MS. HART: I think that -- 5 QUESTION: They've talked about this in the 6 brief, and I'm never quite sure of the full significance 7 of this part of the inquiry. 8 MS. HART: In Washington's statute, mental -- a 9 mental abnormality, which is a predicate to commitment 10 under Washington law, requires a condition that does 11 affect volitional control. 12 My understanding, Your Honor, of this sort of 13 mental disorder, this sort of paraphilia, is that it is a 14 difficulty with volitional control, that you'll have 15 situations where individuals will have these repeated 16 urges and fantasies and then act on them, perhaps be 17 remorseful, but they will repeat, and the ability to 18 control them is something that the individual cannot do 19 consistently. 20 QUESTION: We talk about this. Do the 21 psychiatrists talk about this in a way that has meaning to 22 them? Do they say, this person has or has not volitional 23 control? Is that a standard psychiatric frame of 24 evaluation? 25 MS. HART: Not that I'm specifically aware of, 22 1 Your Honor, but I believe it's somewhat inherent in the 2 nature of this particular mental condition. 3 QUESTION: Do you interpret the findings here 4 that he lacked volitional control? 5 MS. HART: Under Washington statute, he would 6 have to have -- suffer from a mental abnormality, or was 7 bound to suffer from a mental abnormality, Your Honor, 8 that entails a lack of volitional control, or at least an 9 impairment of his ability to control what he does. 10 QUESTION: I take it what -- he was originally 11 convicted of rape? 12 MS. HART: He was -- he has a lengthy criminal 13 history, Your Honor, of six violent rapes. 14 QUESTION: And I presume under Washington law 15 some sort of mens rea is required for the offense of rape. 16 MS. HART: I believe -- I believe that's -- I'm 17 not sure, Your Honor. I don't believe there's necessarily 18 a mental element. There may be a mental element. 19 QUESTION: Well I mean, would Washington law at 20 least recognize a defense that he was unable to control 21 his actions? Or would it be the McNaughton test? 22 MS. HART: I think in Washington it would be the 23 ability to discern right from wrong. 24 Just before -- I'd like to save a couple of 25 minutes for rebuttal, but the other thing I would like to 23 1 do before I do this is essentially to sort of bring this 2 case back to the question before the Court and to make the 3 Court understand that a number -- and I'm sure you do 4 appreciate that, that a number of the questions that 5 you're posing here are ones that have already been 6 resolved against Mr. Young both in the Washington supreme 7 court and in the Ninth Circuit and that the very narrow 8 and limited issue, but important one, before this Court is 9 rather, how the Court determines whether a statute is 10 civil or criminal. 11 If I could, I'd like to reserve -- 12 QUESTION: Very well, Ms. Hart. 13 Mr. Boruchowitz. Am I pronouncing your name 14 correctly? 15 MR. BORUCHOWITZ: Yes, sir. 16 ORAL ARGUMENT OF ROBERT C. BORUCHOWITZ 17 ON BEHALF OF THE RESPONDENT 18 MR. BORUCHOWITZ: Mr. Chief Justice, and may it 19 please the Court: 20 I'd like to begin by answering quickly some of 21 the questions that the Court just asked. Justice 22 Kennedy's question with regard to the evidence about 23 Mr. Young's mental abnormality, the testimony was that 24 from the single State psychologist was that he has a 25 paraphilia not otherwise specified. He also has a 24 1 personality disorder not otherwise specified, neither of 2 which, standing alone, would support the prediction that 3 the psychologist was required to make, but by combining 4 the two, by 51 percent he would say that Mr. Young would 5 be dangerous. 6 There's no evidence of volitional control or the 7 lack of volitional control. There's no jury instruction. 8 There's no requirement about that whatsoever and, as the 9 DSM makes clear, simply having a disorder in the DSM does 10 not make any indication about lack of volitional control. 11 With regard to the question about the evidence 12 below -- 13 QUESTION: And is it conceded by all sides that 14 that showing is, under Washington law, sufficient to 15 commit him civilly? 16 MR. BORUCHOWITZ: Under the Washington statute, 17 yes. The test -- well, yes. We have argued that in the 18 State court and lost, that that volitional control element 19 is required, and as the amicus brief suggests, that 20 remains potentially unclarified by the Hendrix opinion, 21 but in Washington that testimony was sufficient. 22 I think it's important to point out with regard 23 to the testimony, to the decision in the superior court 24 below in Mr. Young's case at the joint appendix, page 61, 25 the trial court applied to Mr. Young a burden of proof 25 1 beyond a reasonable doubt in order to show that the effect 2 of the statute was unconstitutional. 3 The judge did find that we proved by a 4 preponderance of the evidence that certain conditions were 5 less than treatment and greater than prison and so forth 6 but, since she applied to us beyond reasonable doubt, we 7 lost. 8 In the Campbell case, which is pending cert in 9 this Court, a judge found that in fact the conditions were 10 unconstitutional, so that needs to be clarified, I 11 suggest. 12 QUESTION: And then what happened -- 13 QUESTION: The Campbell case was in State court? 14 MR. BORUCHOWITZ: Yes. Yes, Your Honor. 15 Campbell lost in the supreme court and is now pending cert 16 here. 17 QUESTION: And what was the reason for 18 overturning the trial judge's disposition in Campbell? 19 MR. BORUCHOWITZ: Basically the State supreme 20 court took the position that the Attorney General is here, 21 that a statute should be looked at only on its face, and 22 that the effect of the statute, the conditions of the 23 statute, the punitive conditions of the statute as 24 implemented didn't make any difference. 25 QUESTION: Obviously, the word isn't applied. 26 1 That's the wrong concept, I would have thought, that the 2 conditions in an individual case show what the statute may 3 or may not permit. 4 MR. BORUCHOWITZ: That's correct, Your Honor. 5 QUESTION: And if they permit no treatment, 6 then, of course, everybody I think concedes -- I don't 7 know if everybody does, but I'd say then it's 8 unconstitutional. 9 But the difficulty here right now, I think, is 10 the majority's opinion in Hendrix is the law. The 11 majority listed certain features of this case -- 12 Hendrix -- which made it civil and not criminal. 13 MR. BORUCHOWITZ: That's correct. 14 QUESTION: Now, you've heard the Attorney 15 General say, and I guess what's important is that your 16 client have some remedy, that he does have a remedy. 17 That's what's important, and the remedy is that those 18 conditions that made the Hendrix statute civil do not 19 pertain to your client, then the law of Washington is 20 violated, and therefore your client has an excellent 21 remedy. 22 Either the Hendrix majority conditions apply, or 23 they do not. If they do apply, you can't complain -- on 24 my -- I was in dissent. 25 But if they don't apply -- if they don't apply, 27 1 well then, you have a perfect remedy, so what's the 2 problem with that, from the point of view of the law? 3 MR. BORUCHOWITZ: Well, Your Honor, I think 4 there are many problems with it. This Court, of course, 5 has not interpreted the Washington statute. You only 6 interpreted the Kansas statute, and all three opinions in 7 Hendrix focused on the conditions of confinement. The 8 majority said, no one here is claiming that there's 9 punitive conditions. No one here is claiming that Mr. 10 Hendrix is not treated as a civilly committed person, and 11 so we look at that and we decide it's not punitive. 12 Justice Kennedy suggested that if, in fact, it 13 turns out that treatment is a sham, then the decision 14 would go the other way, and the dissent focused heavily on 15 conditions and showed that treatment was not, in fact, 16 there, so my suggestion is that this Court over and over 17 and over again in a series of cases has looked at how a 18 statute is implemented. In the Allen v. Illinois case 19 this Court said this would be a different case if somebody 20 had claimed that there was punitive conditions. 21 Most recently in Gardner v. Jones this Court, in 22 evaluating an ex post facto claim, said, we're going to 23 remand this case because there wasn't enough discovery 24 done below about what's actually going on, and what the 25 Court said is that the respondent must show that, as 28 1 applied to his own case, his own sentence, the law created 2 a risk of ex post facto, and also said in Gardner, when 3 the rule does not by its own terms show a significant 4 risk, the respondent must demonstrate by evidence drawn 5 from the rules practical implementation in his case. 6 As long ago as Yerkwo v. Hopkins, that's the 7 position that the Court took, that a statute that was on 8 its face neutral, but that was as-applied with, as the 9 Court put it, an unequal eye, or an evil eye, an unequal 10 hand, that -- 11 QUESTION: Was Yerkwo either an ex post facto or 12 a double jeopardy case? 13 MR. BORUCHOWITZ: No, it was not, Your Honor, 14 but what I'm suggesting is that the reasoning that the 15 Court has applied in many different areas of the law is to 16 look at the implementation of the statute and that the 17 actions of an administrative agency, whether it's the 18 parole board in Gardner, or the city laundry regulators in 19 Yerkwo, represent the State itself, and that the State -- 20 QUESTION: I may in substance agree with you, 21 but is that why we have this case? I mean, I don't -- I 22 didn't think we had this case to determine whether the 23 statute was criminal or civil. I thought we had this case 24 to determine whether, given a classification as civil, it 25 may then later be treated as having a criminal character 29 1 with respect to its application to particular individuals, 2 and isn't that latter issue the one that's before us? 3 MR. BORUCHOWITZ: I think precisely, Your Honor, 4 the issue before you is whether the Ninth Circuit was 5 correct in ordering an evidentiary hearing on the question 6 of whether the initial confinement render the statute 7 unconstitutional. 8 QUESTION: But the assumption, as I understand 9 it, and I may be wrong on this, but I thought the 10 assumption of the Ninth Circuit's position was that we 11 start with the proposition that it is a civil statute. 12 MR. BORUCHOWITZ: That's correct. 13 QUESTION: But that it's application may be 14 rendered criminal in particular cases. 15 MR. BORUCHOWITZ: That's correct. 16 QUESTION: All right. And so the issue before 17 us is whether the Ninth Circuit, whether that option is, 18 in fact, available, and one of the things that we want to 19 know, and this goes back to Justice Breyer's question is, 20 let's assume it's not available. 21 Let's assume that criminality of the statute's 22 character is not a shifting and springing quality. 23 Does -- on the assumption that it's a civil statute, does 24 your client have a remedy under State law, and I would add 25 to it, does he have a remedy, even on the assumption of 30 1 civil character, under Federal law? 2 MR. BORUCHOWITZ: He would have a remedy, Your 3 Honor, to sue under 1983 in State or Federal court. 4 QUESTION: And his claim would be -- 5 MR. BORUCHOWITZ: His claim would be a due 6 process claim that he -- 7 QUESTION: Substantive due process? 8 MR. BORUCHOWITZ: Yes. 9 QUESTION: Okay. The claim that I was talking 10 about with counsel for the State. 11 MR. BORUCHOWITZ: That's correct. 12 QUESTION: Okay. So he's got that, and he has a 13 State law claim that he's entitled to treatment which he's 14 not getting. 15 MR. BORUCHOWITZ: I think it's important to look 16 at the reality, both of the effect of the statute and of 17 the litigation that's been going on. It's been 6 years 18 since a Federal court has enjoined the State in this 19 matter. The Federal court held the State in contempt, 20 noting its foot-dragging and deliberate avoidance of his 21 injunction on the treatment need at the facility. The 22 former Director called the facility dysfunctional, so -- 23 QUESTION: Well, it may be all of those things, 24 but wasn't the -- I'm not sure they're before us. 25 MR. BORUCHOWITZ: Well, the reason I mention it, 31 1 Your Honor, is you ask, does he have a viable alternative, 2 and I think there may be a civil remedy, but the civil 3 remedy does not get at the fundamental question in this 4 case, which is that my client has been punished for 10 5 years under a so-called civil commitment statute. 6 QUESTION: But if you're right, then I take it 7 every member of that class that's now involved in a 1983 8 case would have an equally valid habeas claim. 9 MR. BORUCHOWITZ: Well, Your Honor, some of them 10 certainly would, depending on what the district court 11 eventually finds at the hearing. I would point out, by 12 the way, that I don't believe it's an actual certified 13 class, but there are multiple named plaintiffs, but -- 14 QUESTION: Well, all of the named plaintiffs. 15 MR. BORUCHOWITZ: But certainly everyone would 16 be able to bring their own challenge as applied to them, 17 in fact, the statue was unconstitutional. 18 Mr. Young should be able to have his day in the 19 trial court, in the Federal district court, as the Ninth 20 Circuit has ordered, to be able to show that the purpose 21 and effect of this statute are, in fact, unconstitutional. 22 QUESTION: That's why I'm confused on the 23 procedure. I would think the answer to Justice Souter's 24 question, I mean, at least as I would see it, would be you 25 have a civil statute, but this person is suffering 32 1 criminal treatment. 2 MR. BORUCHOWITZ: That's correct. 3 QUESTION: All right. I'd say if that's so, of 4 course he must have a remedy. 5 MR. BORUCHOWITZ: Right. 6 QUESTION: They're saying he does have. He has 7 two remedies. You don't need to create a new category. 8 The first remedy would be, under State law -- it 9 violates the statute, and then if you lose on that one, 10 there would be another, which would say that the Federal 11 Constitution doesn't permit a person who is civilly 12 committed to be there without any treatment, where he can 13 sustain the treatment, et cetera, et cetera, and that 14 would be the Federal constitutional claim. 15 You might win, you might lose, but it seems to 16 me you have those already in the lower courts, and we 17 don't need a remand on this case to give you those. 18 That's where I'm confused. I mean, they're already 19 pending, those two claims. One's in the Washington 20 system, the other's in the Federal system, and so what's 21 this thing now going to help on? 22 MR. BORUCHOWITZ: Well, Your Honor, the posture 23 of this case is somewhat unusual in that the Court has 24 taken cert of this case before the evidentiary hearing in 25 district court, and the Ninth Circuit said, send this back 33 1 because Mr. Young didn't have his evidentiary hearing 2 which he should have had. 3 I think it's important to point out, in response 4 to what Justice Ginsburg asked earlier, Mr. Young has 5 claimed that this statute was being punitively applied, 6 and that in fact it was punitive in purpose from the very 7 beginning. He brought a personal restraint petition 8 before he even has his trial in State court, so he has 9 made this claim from the very beginning, both that the 10 effect of this statute illuminates the punitive purpose, 11 and that the effect itself is punitive. 12 After Hendrix, and after the Ninth Circuit 13 remanded the case the first time, then the focus of the 14 court was on the punitive effect. 15 QUESTION: But may I just ask this question. If 16 he's correct that as applied to him it's punitive, then 17 does that not mean that he's been subjected to double 18 jeopardy and is entitled to his release? 19 MR. BORUCHOWITZ: Absolutely. 20 QUESTION: That's your position? 21 MR. BORUCHOWITZ: Yes, Justice Stevens, because 22 in fact the whole purpose of a writ of habeas corpus is to 23 challenge unconstitutional incarceration, and the relief 24 is release, and that's what Mr. Young has been asking for 25 from the day he filed his habeas -- 34 1 QUESTION: And you add that you can make this 2 showing at the very outset of the order committing him to 3 the civil treatment? 4 MR. BORUCHOWITZ: Yes, Your Honor. I think it's 5 even more the case now, after 10 years, but yes, at the 6 very outset this was a facility that was set up with not 7 even a licensed psychologist on staff. This was not what 8 the Court described in Hendrix, of a psychiatric facility 9 with 31 hours a week of treatment. This was a facility 10 that did not even have a licensed psychologist, that had 11 no certified sex offender treatment providers until long, 12 long, long after the injunction was in place. 13 QUESTION: But Mr. Boruchowitz, doesn't -- 14 again, doesn't your argument go to a different issue from 15 the one that's before us? You're arguing, I think, that 16 your client should have, or should have had an opportunity 17 to show that this is not like the Hendrix statute, and 18 that this one is, in fact, a punitive statute, and 19 therefore all the punitive protections apply? But that's 20 not the issue that we've got before us, is it? 21 MR. BORUCHOWITZ: Well, Your Honor, I think it 22 is the issue. 23 QUESTION: I thought the issue -- and we can 24 make it either-or. I thought the issue we had before us 25 was a determination by the State court that the statute 35 1 here was like the Hendrix statute and therefore we had a 2 civil statute, and the question was, may the application 3 of that statute nonetheless be treated as criminal in 4 particular cases, even though the statute is classified as 5 a general matter as civil? I thought we had the latter 6 issue, not the issue whether he should be able to prove, 7 or could prove that it was in constitutional terms unlike 8 Hendrix in a criminal statute. 9 MR. BORUCHOWITZ: Well, Your Honor, I'm not sure 10 I understand the question, but let me try this -- 11 QUESTION: The question -- let me do it again. 12 The question is, is the issue before us whether this is a 13 criminal statute, or is the issue before us whether a 14 civil statute may nonetheless give rise to claims of 15 violating criminal constitutional protections if the civil 16 statute is not followed by its own terms? Which question? 17 MR. BORUCHOWITZ: I think between the two I 18 think it's the second question. 19 QUESTION: Okay. That's what I thought. 20 MR. BORUCHOWITZ: Yes, but I believe that on 21 remand the court of appeals opinion suggests that the 22 district court should examine the effect of the statute 23 and along the way mentions some evidentiary aspects that 24 to the Ninth Circuit looked as if the statute, in fact, 25 were -- had a punitive purpose, a deterrent purpose. 36 1 QUESTION: How would that evidentiary hearing 2 differ from the one that's already been had in the Federal 3 court in the Turay case? 4 MR. BORUCHOWITZ: Well, Your Honor, I think one 5 of the first questions for the district judge to decide 6 would be what nature proceeding he would undertake, and 7 whether he would simply use a record that had been 8 established in the other proceeding, whether collateral 9 estoppel would apply on certain issues and, if not, 10 whether he would take evidence on recent developments. 11 That's something we haven't reached yet, but I 12 would think that would be the first question for the judge 13 to decide. What nature of evidence do I take? Do I 14 simply look at the record Judge Dwyer has prepared over 10 15 years, or do I look at some additional evidence? 16 QUESTION: I thought your position was that you 17 can challenge this statute at the very outset of the order 18 committing him based on the fact that, as demonstrated by 19 the way in which the treatment facility is operated, it 20 is -- it is not for a civil purpose, and that the 21 classification of the disease is too imprecise -- 22 MR. BORUCHOWITZ: That's correct. 23 QUESTION: -- to admit of psychiatric treatment. 24 MR. BORUCHOWITZ: Yes. It -- 25 QUESTION: And you simply want to use evidence 37 1 of existing conditions to challenge the operation of the 2 statute at the time that he's subjected to it. 3 MR. BORUCHOWITZ: That's right, Your Honor. 4 QUESTION: And that seems somewhat different 5 than the answer you gave to Justice Souter. 6 MR. BORUCHOWITZ: Well, both -- I have to answer 7 yes to both questions, because that's been our position 8 from the very beginning, that the statute in its purpose 9 was punitive, as evidenced by not only the legislative 10 history, which this Court in Kennedy v. Mendoza-Martinez 11 described as the objective manifestation of the law, the 12 legislative history, and also by the purpose and effect. 13 By the effect, the implementation, which this Court also 14 looks at over and over again. 15 QUESTION: But that sounds a lot like my 16 dissent, which the lower courts, as much as I'd like them 17 to follow my dissents rather than the majority, I'm 18 afraid, quite correctly, they follow the majority 19 opinions, not the dissents and that's correct. 20 MR. BORUCHOWITZ: Justice Breyer -- 21 QUESTION: So how do we reconcile that with -- I 22 mean, it's the majority -- 23 MR. BORUCHOWITZ: Well, there are several ways 24 to do that, Your Honor. First of all, as Justice Kennedy 25 pointed out, Hendrix was decided affecting Hendrix alone 38 1 and, as you suggested in dissent, if the concern that 2 Justice Kennedy had in his concurrence about the, either 3 potential of the sham treatment or the imprecision of 4 mental abnormality, were to come true, that in fact due 5 process implications would be raised as well, as you put 6 it in your dissent. 7 So I think all three opinions in Hendrix looked 8 at the condition of confinement and, of course, did not 9 look at the Washington statute. You have not looked at 10 the Washington statute, and that's not your function 11 today, because what you're being asked to do is whether 12 the court of appeals remand was correct or not. 13 Now, along the way, you have to examine the 14 question of how do we go about making that decision, and 15 initially you look at the face of the statute, but that's 16 not enough. The civil label is not enough, you've said 17 over and over again, and what you do then is, you look 18 beyond that to the purpose and effect. Has it been 19 implemented in such a way that the effect is punitive? If 20 it's punitive, then double jeopardy and ex post facto -- 21 QUESTION: Well, it doesn't necessarily mean 22 effect that way. I mean, that's the crucial language, 23 purpose and effect. Does it mean, the effect as evident 24 from the face of the statute, which is what your opponent 25 says, or does it mean the effect as it is played out, even 39 1 if that contradicts the face of the statute? That's the 2 crucial issue. 3 MR. BORUCHOWITZ: I agree. 4 QUESTION: What that language, effect, means. 5 MR. BORUCHOWITZ: Yes, Justice Scalia, I think 6 that's right, and my suggestion is that Hudson doesn't 7 even mention Hendrix. Hendrix talks in all three opinions 8 about the condition of confinement, and cites other cases 9 that talk about implementation. Hudson was a question 10 involving fines and debarment imposed by the Controller of 11 the Currency. Hudson was decided 6 months after Hendrix, 12 doesn't even mention it, let alone purport to overrule it. 13 This Court has over 100 years of history, in 14 many, many different areas of the law, of looking at how a 15 statute is implemented to determine its constitutionality. 16 QUESTION: But Hudson was an opinion dealing 17 precisely with the constitutional claim that you're 18 raising. 19 MR. BORUCHOWITZ: That's correct. 20 QUESTION: With the Double Jeopardy Clause. 21 MR. BORUCHOWITZ: That's correct, Your Honor. I 22 think there are key differences from Hudson, and they boil 23 down to liberty versus money, because in Hudson you're 24 talking about fines and debarment, and -- 25 QUESTION: Well, does the Double Jeopardy Clause 40 1 make any such distinction? 2 MR. BORUCHOWITZ: I don't think it does, no, 3 Your Honor, but I think the Court's opinions have 4 indicated a greater concern about implementation of the 5 law and the facts as applied when liberty is involved, and 6 I think -- 7 QUESTION: Sorry. Go ahead. 8 MR. BORUCHOWITZ: I was just going to say that 9 in the Ex Post Facto context, certainly that's what the 10 Gardner decision did, because the Court said the facts are 11 not before us as to how this statute is implemented, and 12 the policies and practices of the parole board certainly 13 should be considered, and so we're going to remand for 14 that. 15 QUESTION: In Gardner the claim was made that 16 the rule in general had an ex post facto effect on gain 17 time, and I think our Court said you -- it's not enough to 18 show it might have affected some people. You've got to 19 show it affected you. 20 MR. BORUCHOWITZ: That's correct. 21 QUESTION: Which is quite different, I think, 22 from what you're saying. 23 MR. BORUCHOWITZ: I understand the Court's 24 point, but I -- my suggestion is this, that just as it was 25 important -- I mean, the ultimate question in Gardner v. 41 1 Jones is, is there an ex post facto violation for 2 Mr. Jones, and the question here, ultimately, not 3 necessarily at this moment in this Court, but ultimately, 4 is there a double jeopardy and ex post facto violation in 5 Mr. Young's case, and so how do we do that? In Gardner, 6 we look at the implementation as applied to him. He has 7 to put on evidence of as-applied to him. 8 And in Young, all we're asking for is what the 9 Ninth Circuit ordered, which is our opportunity to do 10 that. 11 QUESTION: Is it going to the same judge who's 12 handling the other Federal case? 13 MR. BORUCHOWITZ: No, Your Honor. I suppose 14 they could merge it. 15 QUESTION: It just seems to me this is going to 16 be exactly the same issue. If we just let it alone, it 17 would have gone back to the judge. 18 The judge would have either said, you're right, 19 the conditions are terrible, you're not getting any 20 treatment, in which case you would have had three separate 21 grounds for getting the relief, but you would have gotten 22 it, or you're wrong, in which case you'd be out, and I 23 don't really -- now, see, what we're deciding, we're 24 deciding whether this judge should do it or that judge 25 should do it, and the standards seem to me to be roughly 42 1 the same. I just don't -- and then the consequence is the 2 same. 3 MR. BORUCHOWITZ: Well, it seems to me, Your 4 Honor, the Court could -- 5 QUESTION: It's not your fault -- 6 MR. BORUCHOWITZ: No. 7 QUESTION: -- that you're before this Court. 8 (Laughter.) 9 MR. BORUCHOWITZ: Thank you, Mr. Chief Justice. 10 QUESTION: Quite right. 11 MR. BORUCHOWITZ: It seems to me that now that 12 we're here the Court could do many different things. The 13 Court could simply say, we meant in Hendrix that the 14 conditions were important. We were all concerned about 15 that, and the Ninth Circuit is right to consider the 16 purpose and effect as shown by the conditions. You could 17 just do that. 18 You could also say, by the way, mental 19 abnormality, we really did mean what we said about lack of 20 control, and that there should be some showing about, the 21 person has no volitional control, and that would clear up 22 a lot of things in the lower courts. As we pointed out in 23 our supplemental two-page brief, the State of Kansas just 24 decided that yes, in fact, Hendrix just require the lack 25 of volitional control. 43 1 The Court could also, I suppose, go beyond the 2 question presented, which it has the authority to do, and 3 say, this statute certainly looks like it's very different 4 than what we though Hendrix was, and at least in 5 Washington as it's being applied there's a problem, but I 6 don't think the Court needs to do that. 7 The Court simply can say, we're going to remand 8 this case and let the court of appeals order stand, 9 because what the court of appeals has simply done is to 10 apply Hendrix. There's nothing different from Hendrix in 11 what the Ninth Circuit did. We're simply going to send it 12 down for the district court to evaluate it, and if the 13 district court, Judge Cunero decided that let Judge Dwyer 14 handle it because he's done the 1983 litigation, that 15 could easily -- that's something the district court could 16 do if it decided to do that. 17 But obviously the 1983 litigation has not been a 18 habeas situation involving the question of release because 19 of unconstitutional punishment, and what this case is 20 ultimately about is that a man has been punished for 10 21 years in a prison, longer than he served under his 22 criminal sentence, without having committed another crime 23 and without having a traditional mental disorder. 24 And so there are many issues presented, and I 25 think one of the things that's difficult about examining 44 1 this case is that it's something fundamentally radically 2 different from a true civil commitment. There's nothing 3 wrong with a true civil commitment, but this is not civil 4 commitment. This is punishment. 5 And I think that if you look at the various 6 cases that we've cited here, one other thing about Hudson 7 that I think is important is that the Court said that the 8 penalties in Hudson did not approach the infamous 9 punishment of imprisonment. They involved administrative 10 disability, and they were imposed in administrative 11 proceedings. 12 In Ward, the Court found that the penalty for 13 oil discharge and water pollution was more analogous to 14 traditional civil damages. 15 In Shaw v. Martin, before the Court found that 16 pretrial detention did not violate due process, the Court 17 examined the actual conditions of confinement and cited 18 testimony in the opinion about actual practices. 19 QUESTION: Of course, if the -- what 20 constitutional question was involved in Shaw? 21 MR. BORUCHOWITZ: Due process, Your Honor. 22 QUESTION: Yes, and I think that doesn't help 23 you very much when you're trying to transpose that holding 24 over into double jeopardy or ex post facto, which are much 25 more precise. 45 1 MR. BORUCHOWITZ: I appreciate that, Your Honor. 2 The Court has often considered punishment in a parallel 3 way, whether it's due process, double jeopardy, or ex post 4 facto, but I certainly acknowledge that Shaw was a due 5 process case. 6 This is a situation where, as Judge Dwyer 7 indicated in the Turay 1983 litigation, for all intents 8 and purposes this is a prison. It looks like, feels like, 9 and is a prison run by the Department -- or the external 10 facility run by the Department of Corrections, which is at 11 page 6 of our brief, joint appendix 147. 12 This is a situation where the State of 13 Washington, over the time that the injunction has been in 14 place, has made it harder to get less restrictive 15 alternatives. One of the things that this Court was 16 concerned about in Hendrix, and specifically mentioned, 17 was the less restrictive alternative idea, and what 18 Washington has done in the last 5 years is to eliminate 19 less restrictive alternative from the initial court 20 determination and to make it harder for someone to get it. 21 I would suggest that this Court over and over, 22 in a number of cases involving both double jeopardy and 23 due process and ex post facto has been to look at the 24 statute as applied. 25 In Foosha, Justice Thomas dissented saying that 46 1 this would be a different case if the procedures as 2 applied would show, as he put it, window dressing in that 3 case. In fact, what we have here is the actual 4 implementation of the treatment has turned out to be a 5 sham. 6 The Court has said over and over that if you can 7 show by the clearest proof that a statute is punitive in 8 effect, then you can win. The clearest proof by its terms 9 suggests that evidence will be taken, because otherwise 10 where is the proof? In answer to Justice Scalia's 11 question, does it just mean what naturally flows from the 12 language, or does it mean the actual implementation? I 13 would suggest that clearest proof means proof of evidence, 14 not simply proof of -- 15 QUESTION: May I ask on that point, are you 16 contending -- is it your view that you have to prove that 17 everyone subject to this statute is being punished, or 18 just that your client is being punished? 19 MR. BORUCHOWITZ: Just that my client is being 20 punished, Justice Stevens. 21 QUESTION: Well, what if there are 100 people in 22 prison, 99 of them are civil, and your client is punished? 23 That would -- he would get relief, then? 24 MR. BORUCHOWITZ: I think so, Your Honor, 25 because ultimately the logical extension of the State's 47 1 position is that you could torture someone and beat them 2 and deprive them of food, and as long as the State calls 3 it civil -- 4 QUESTION: Yes, but there are remedies for those 5 things. I mean, those are independent constitutional 6 violations. 7 MR. BORUCHOWITZ: That's correct. 8 QUESTION: Yes. 9 MR. BORUCHOWITZ: But ultimately, if the way the 10 statute is being applied to an individual is punitive -- 11 QUESTION: Yes, but it would seem to me your 12 case would be very strong if you could say everybody who's 13 subject to this statute is being punished, but you don't 14 go that far. 15 MR. BORUCHOWITZ: Well, Your Honor, we don't 16 have a record that would allow me to say that 17 categorically, that everyone -- I think certainly in 18 response to Justice, I believe -- 19 QUESTION: Part of your allegation could seem to 20 establish that, if this particular facility is -- has no 21 psychiatrist and is in a correction facility, everybody 22 incarcerated there must be punished, I would think. 23 MR. BORUCHOWITZ: Our answer is yes to that, 24 Your Honor, but I don't think the Court has to answer that 25 question to rule in Mr. Young's behalf, but I think you're 48 1 right that, as we've been arguing from the very beginning, 2 the statute had a punitive purpose, it was designed to 3 close the gaps, we couldn't accept the double jeopardy and 4 ex post facto -- 5 QUESTION: Would it be open on remand, under 6 your understanding of the mandate, for you to try to prove 7 what I've just suggested? 8 MR. BORUCHOWITZ: Well, Your Honor, I think the 9 Court could say that the application to all other 10 prisoners would certainly enlighten the question of what's 11 applying to Mr. Young, but the Court doesn't need to reach 12 that question. 13 But I think the answer to the question would be 14 yes, because it has had a punitive purpose and effect from 15 the beginning, but I don't think there's anything that's 16 in conflict with Hendrix for us to go forward. What 17 Hendrix said was, nobody here's saying it's punitive, it 18 applies to Hendrix alone, it would be different if, and 19 that's what the Court has said in many different 20 circumstances, including Allen v. Illinois. The case 21 would be a different case if someone had shown that there 22 was a punitive effect. 23 So over and over again I think the Court has 24 looked at the actual implementation of the statute, but 25 you're right, I think from the very beginning he's been 49 1 committed without authority of law. 2 Let me just take a minute to mention Ex Parte 3 Virginia, because I think it's important when the State 4 argues that an administrative agency does not bind the 5 State in some way. This Court said that whoever by virtue 6 of a public position under State government deprives 7 another of constitutional rights violates the 8 Constitution, and he acts in the name and for the State 9 and his act is that of the State. There can be no defense 10 here that it's simply the administrative agency running 11 amok. This is certainly an act of the State that binds 12 the State. 13 The State -- thank you, Your Honor. 14 QUESTION: Thank you, Mr. Boruchowitz. 15 Ms. Hart, you have 3 minutes remaining. 16 REBUTTAL ARGUMENT OF MAUREEN A. HART 17 ON BEHALF OF THE PETITIONER 18 MS. HART: Thank you. 19 I would like to point out to the Court again 20 that this case is before the Court on a very narrow issue, 21 and it is a threshold issue, and that is, how the Court 22 determines whether a statute is civil or criminal. Hudson 23 establishes that that is done facially. 24 Washington -- the issue about whether 25 Washington's statute is civil or criminal is not before 50 1 this Court. Both the Washington supreme court and the 2 Ninth Circuit Court of Appeals have held that Washington 3 statute is civil on its face, meaning the legislature's 4 intent was to have a civil statute and that in purpose and 5 in effect the Washington statute is civil. 6 The predicates for commitment are not at issue 7 before this Court. There is no question that Mr. Young 8 suffers from a mental abnormality and a personality 9 disorder that makes him likely to engage in sexually 10 violent acts if he is not detained. That is not before 11 this Court. The Washington supreme court and the Ninth 12 Circuit have both ruled against Mr. Young on those issues, 13 and there was no cross-petition here. 14 The only issue before this Court, and what 15 Mr. Young is contending, is that because he alleges that 16 he is not receiving treatment consistent with a civil 17 statute, that he ought to be released, and the only way 18 Mr. Young can contend that is by saying, if I do not 19 receive the treatment that I'm entitled to under a civil 20 statute, somehow that converts this statute to a criminal 21 statute, that one day your statute can be civil, the next 22 day it can be criminal. 23 In Mr. Young's view, if Washington had two 24 commitment centers instead of one, the law would be civil 25 at the center where the commitment -- where the treatment 51 1 was adequate and -- 2 QUESTION: Could you answer the question I -- 3 supposing he proves that everybody who's been committed 4 pursuant to this statute has been punished? 5 MS. HART: Then everyone committed pursuant to 6 the statute would be entitled to go into either State 7 court or Federal court and get those remedies, get those 8 conditions remedied, but they do not go to the validity of 9 whether -- they do not go back to the character of 10 Washington's statute. 11 Washington's statute is a civil law, and that is 12 meaningful. It means that people confined pursuant to 13 that law are entitled to the treatment that civil 14 committees are given under the statute and under the 15 Constitution, and the proportionate, measured, wholly 16 adequate remedy is to go to court and require the State of 17 Washington to provide the treatment and the care that it 18 has promised. 19 QUESTION: But on your view the reason he could 20 not, on Justice Stevens' hypothetical, argue that the 21 court had made a mistake in finding the statute across the 22 board to be a civil statute is that the character of the 23 statute on your view must be determined on the text of the 24 statute, on the basis of the statutory text alone, is that 25 it? You could find that the text -- 52 1 MS. HART: Under the Hudson test. 2 CHIEF JUSTICE REHNQUIST: Thank you, Ms. Hart. 3 the case is submitted. 4 (Whereupon, at 12:05 p.m., the case in the 5 above-entitled matter was submitted.) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 53