OCTOBER TERM, 2002
NOTE: Where it is feasible, a syllabus (headnote) will be released,
as is being done in connection with this case, at the time the opinion
is issued. The syllabus constitutes no part of the opinion of the
Court but has been prepared by the Reporter of Decisions for the
convenience of the reader. See United States v. Detroit Timber & Lumber
Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
SELL v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 02–5664. Argued March 3, 2003—Decided June 16, 2003
A Federal Magistrate Judge (Magistrate) initially found petitioner Sell,
who has a long history of mental illness, competent to stand trial for
fraud and released him on bail, but later revoked bail because Sell’s
condition had worsened. Sell subsequently asked the Magistrate to reconsider
his competence to stand trial for fraud and attempted murder. The Magistrate
had him examined at a United States Medical Center for Federal Prisoners
(Medical Center), found him mentally incompetent to stand trial, and
ordered his hospitalization to determine whether he would attain the
capacity to allow his trial to proceed. While there, Sell refused the
staff’s recommendation to take antipsychotic medication. Medical Center
authorities decided to allow involuntary medication, which Sell challenged
in court. The Magistrate authorized forced administration of antipsychotic
drugs, finding that Sell was a danger to himself and others, that medication
was the only way to render him less dangerous, that any serious side
effects could be ameliorated, that the benefits to Sell outweighed the
risks, and that the drugs were substantially likely to return Sell to
competence. In affirming, the District Court found the Magistrate’s dangerousness
finding clearly erroneous but concluded that medication
was the only viable hope of rendering Sell competent to stand trial and
was necessary to serve the Government’s interest in obtaining
an adjudication of his guilt or innocence. The Eighth Circuit affirmed.
Focusing solely on the fraud charges, it found that the Government had
an essential interest in bringing Sell to trial, that the treatment was
medically appropriate, and that the medical evidence indicated a reasonable
probability that Sell would fairly be able to participate in his trial.
The Eighth Circuit had jurisdiction to hear the appeal. The District
Court’s pretrial order was an appealable “collateral order” within
the exceptions to the rule that only final judgments are appealable.
The order conclusively determines the disputed question whether
Sell has a legal right to avoid forced medication. Coopers & Lybrand
v. Livesay, 437 U. S. 463, 468. It also resolves an important
issue, for involuntary medical treatment raises questions of
clear constitutional importance. Ibid. And the issue
is effectively unreviewable on appeal from a final judgment, ibid.,
since, by the time of trial, Sell will have undergone forced
medication—the very harm that he seeks to avoid and which cannot
be undone by an acquittal. Pp. 7–9.
Under the framework of Washington v. Harper, 494 U.
S. 210, and Riggins v. Nevada, 504 U. S. 127, the Constitution
permits the Government involuntarily to administer antipsychotic
drugs to render a mentally ill defendant competent to stand trial
on serious criminal charges if the treatment is medically appropriate,
is substantially unlikely to have side effects that may undermine
the trial’s fairness, and, taking account of less intrusive alternatives,
is necessary significantly to further important governmental trial-related
interests. Pp. 10–16.
This standard will permit forced medication solely for trial
competence purposes in certain instances. But these instances
may be rare, because the standard says or fairly implies
the following: First, a court must find that important governmental
interests are at stake. The Government’s interest in
bringing to trial an individual accused of a serious
crime is important. However, courts must consider each
case’s facts in evaluating this interest because special
circumstances may lessen its importance, e.g.,
a defendant’s refusal to take drugs may mean lengthy
confinement in an institution, which would diminish the
risks of freeing without punishment one who has committed
a serious crime. In addition to its substantial interest
in timely prosecution, the Government has a concomitant
interest in assuring a defendant a fair trial. Second,
the court must conclude that forced medication will significantly
further those concomitant state interests. It must
find that medication is substantially likely to render
the defendant competent to stand trial and substantially
unlikely to have side effects that will interfere significantly
with the defendant’s ability to assist counsel in conducting
a defense. Third, the court must conclude that involuntary
medication is necessary to further those interests
and find that alternative, less intrusive treatments
are unlikely to achieve substantially the same results.
Fourth, the court must conclude that administering the
drugs is medically appropriate. Pp. 10–14.
The court applying these standards is trying to determine
whether forced medication is necessary to further the
Government’s interest in rendering the defendant competent
to stand trial. If a court authorizes medication on an
alternative ground, such as dangerousness, the need to
consider authorization on trial competence grounds will
likely disappear. There are often strong reasons for
a court to consider alternative grounds first. For one
thing, the inquiry into whether medication is permissible
to render an individual nondangerous is usually more
objective and manageable than the inquiry into whether
medication is permissible to render a defendant competent.
For another, courts typically address involuntary medical
treatment as a civil matter. If a court decides that
medication cannot be authorized on alternative grounds,
its findings will help to inform expert opinion and judicial
decisionmaking in respect to a request to administer
drugs for trial competence purposes. Pp. 14–16.
The Eighth Circuit erred in approving forced medication solely to
render Sell competent to stand trial. Because that court and
the District Court held the Magistrate’s dangerousness finding
clearly erroneous, this Court assumes that Sell was not dangerous.
And on that hypothetical assumption, the Eighth Circuit erred
in reaching its conclusion. For one thing, the Magistrate did
not find forced medication legally justified on trial competence
grounds alone. Moreover, the experts at the Magistrate’s hearing
focused mainly on dangerousness. The failure to focus on trial
competence could well have mattered, for this Court cannot tell
whether the medication’s side effects were likely to undermine
the fairness of Sell’s trial, a question not necessarily relevant
when dangerousness is primarily at issue. Finally, the lower
courts did not consider that Sell has been confined at the Medical
Center for a long time, and that his refusal to be medicated
might result in further lengthy confinement. Those factors, the
first because a defendant may receive credit toward a sentence
for time served and the second because it reduces the likelihood
of the defendant’s committing future crimes, moderate the importance
of the governmental interest in prosecution. The Government may
pursue its forced medication request on the grounds discussed
in this Court’s opinion but should do so based on current circumstances,
since Sell’s condition may have changed over time. Pp. 16–18.
282 F. 3d 560, vacated and remanded.
BREYER, J., delivered the opinion of the Court, in which REHNQUIST, C.
J., and STEVENS, KENNEDY, SOUTER, and GINSBURG, JJ., joined. SCALIA,
J., filed a dissenting opinion, in which O’CONNOR and THOMAS, JJ., joined.
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication
in the preliminary print of the United States Reports. Readers are
requested to notify the Reporter of Decisions, Supreme Court of the
United States, Washington, D. C. 20543, of any typographical or other
formal errors, in order that corrections may be made before the preliminary
print goes to press.
SUPREME COURT OF THE UNITED STATES
CHARLES THOMAS SELL, PETITIONER v.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[June 16, 2003]
JUSTICE BREYER delivered the opinion of the Court.
The question presented is whether the Constitution permits the Government
to administer antipsychotic drugs involuntarily to a mentally ill criminal
defendant—in order to render that defendant competent to stand trial
for serious, but nonviolent, crimes. We conclude that the Constitution
allows the Government to administer those drugs, even against the defendant’s
will, in limited circumstances, i.e., upon satisfaction of conditions
that we shall describe. Because the Court of Appeals did not find that
the requisite circumstances existed in this case, we vacate its judgment.
Petitioner Charles Sell, once a practicing dentist, has a long and unfortunate
history of mental illness. In September 1982, after telling doctors that
the gold he used for fillings had been contaminated by communists, Sell
was hospitalized, treated with antipsychotic medication, and subsequently
discharged. App. 146. In June 1984, Sell called the police to say that
a leopard was outside his office boarding a bus, and he then asked the
police to shoot him. Id., at 148; Forensic Report, p. 1 (June 20, 1997).
Sell was again hospitalized and subsequently released. On various occasions,
he complained that public officials, for example, a State Governor and
a police chief, were trying to kill him. Id., at 4. In April 1997, he
told law enforcement personnel that he “spoke to God last night,” and
that “God told me every [Federal Bureau of Investigation] person I kill,
a soul will be saved.” Id., at 1.
In May 1997, the Government charged Sell with submitting fictitious insurance
claims for payment. See 18 U. S. C. §1035(a)(2). A Federal Magistrate
Judge (Magistrate), after ordering a psychiatric examination, found Sell
“currently competent,” but noted that Sell might experience “a psychotic
episode” in the future. App. 321. The judge released Sell on bail. A
grand jury later produced a superseding indictment charging Sell and
his wife with 56 counts of mail fraud, 6 counts of Medicaid fraud, and
1 count of money laundering. Id., at 12–22.
In early 1998, the Government claimed that Sell had sought to intimidate
a witness. The Magistrate held a bail revocation hearing. Sell’s behavior
at his initial appearance was, in the judge’s words, “‘totally out of
control,’” involving “screaming and shouting,” the use of “personal insults”
and “racial epithets,” and spitting “in the judge’s face.” Id.,
at 322. A psychiatrist reported that Sell could not sleep because he
expected the FBI to “‘come busting through the door,’” and concluded
that Sell’s condition had worsened. Ibid. After considering
that report and other testimony, the Magistrate revoked Sell’s bail.
In April 1998, the grand jury issued a new indictment charging Sell with
attempting to murder the FBI agent who had arrested him and a former
employee who planned to testify against him in the fraud case. Id.,
at 23–29. The attempted murder and fraud cases were joined for trial.
In early 1999, Sell asked the Magistrate to reconsider his competence
to stand trial. The Magistrate sent Sell to the United States Medical
Center for Federal Prisoners at Springfield, Missouri, for examination.
Subsequently the Magistrate found that Sell was “mentally incompetent
to stand trial.” Id., at 323. He ordered Sell to “be hospitalized
for treatment” at the Medical Center for up to four months, “to determine
whether there was a substantial probability that [Sell] would attain
the capacity to allow his trial to proceed.” Ibid.
Two months later, Medical Center staff recommended that Sell take antipsychotic
medication. Sell refused to do so. The staff sought permission to administer
the medication against Sell’s will. That effort is the subject of the
We here review the last of five hierarchically ordered lower court and
Medical Center determinations. First, in June 1999, Medical Center staff
sought permission from institutional authorities to administer antipsychotic
drugs to Sell involuntarily. A reviewing psychiatrist held a hearing
and considered Sell’s prior history; Sell’s current persecutional beliefs
(for example, that Government officials were trying to suppress his knowledge
about events in Waco, Texas, and had sent him to Alaska to silence him);
staff medical opinions (for example, that “Sell’s symptoms point to a
diagnosis of Delusional Disorder but . . . there well may be an underlying
Schizophrenic Process”); staff medical concerns (for example, about “the
persistence of Dr. Sell’s belief that the Courts, FBI, and federal government
in general are against him”); an outside medical expert’s opinion (that
Sell suffered only from delusional disorder, which, in that expert’s
view, “medication rarely helps”); and Sell’s own views, as well as those
of other laypersons who know him (to the effect that he did not suffer
from a serious mental illness). Id., at 147–150.
The reviewing psychiatrist then authorized involuntary administration
of the drugs, both (1) because Sell was “mentally ill and dangerous,
and medication is necessary to treat the mental illness,” and (2) so
that Sell would “become competent for trial.” Id., at 145.
The reviewing psychiatrist added that he considered Sell “dangerous based
on threats and delusions if outside, but not necessarily in[side] prison”
and that Sell was “[a]ble to function” in prison in the “open population.” Id.,
Second, the Medical Center administratively reviewed the determination
of its reviewing psychiatrist. A Bureau of Prisons official considered
the evidence that had been presented at the initial hearing, referred
to Sell’s delusions, noted differences of professional opinion as to
proper classification and treatment, and concluded that antipsychotic
medication represents the medical intervention “most likely” to “ameliorate”
Sell’s symptoms; that other “less restrictive interventions” are “unlikely”
to work; and that Sell’s “pervasive belief” that he was “being targeted
for nefarious actions by various governmental . . . parties,” along with
the “current charges of conspiracy to commit murder,” made Sell “a potential
risk to the safety of one or more others in the community.” Id.,
at 154–155. The reviewing official “upheld” the “hearing officer’s decision
that [Sell] would benefit from the utilization of antipsychotic medication.” Id.,
Third, in July 1999, Sell filed a court motion contesting the Medical
Center’s right involuntarily to administer antipsychotic drugs. In September
1999, the Federal Magistrate who had ordered Sell sent to the Medical
Center held a hearing. The evidence introduced at the hearing for the
most part replicated the evidence introduced at the administrative hearing,
with two exceptions. First, the witnesses explored the question of the
medication’s effectiveness more thoroughly. Second, Medical Center doctors
testified about an incident that took place at the Medical Center after
the administrative proceedings were completed. In July 1999, Sell had
approached one of the Medical Center’s nurses, suggested that he was
in love with her, criticized her for having nothing to do with him, and,
when told that his behavior was inappropriate, added “‘I can’t help it.’” Id.,
at 168–170, 325. He subsequently made remarks or acted in ways indicating
that this kind of conduct would continue. The Medical Center doctors
testified that, given Sell’s prior behavior, diagnosis, and current beliefs,
boundary-breaching incidents of this sort were not harmless and, when
coupled with Sell’s inability or unwillingness to desist, indicated that
he was a safety risk even within the institution. They added that he
had been moved to a locked cell.
In August 2000, the Magistrate found that “the government has made a
substantial and very strong showing that Dr. Sell is a danger to himself
and others at the institution in which he is currently incarcerated”;
that “the government has shown that antipsychotic medication is the only
way to render him less dangerous”; that newer drugs and/or changing drugs
will “ameliorat[e]” any “serious side effects”; that “the benefits to
Dr. Sell . . . far outweigh any risks”; and that “there is a substantial
probability that” the drugs will “retur[n]” Sell “to competency.” Id.,
at 333–334. The Magistrate concluded that “the government has shown in
as strong a manner as possible, that antipsychotic medications are the
only way to render the defendant not dangerous and competent to stand
trial.” Id., at 335. The Magistrate issued an order authorizing
the involuntary administration of antipsychotic drugs to Sell, Id.,
at 331, but stayed that order to allow Sell to appeal the matter to the
Federal District Court, Id., at 337.
Fourth, the District Court reviewed the record and, in April 2001, issued
an opinion. The court addressed the Magistrate’s finding “that defendant
presents a danger to himself or others sufficient” to warrant involuntary
administration of antipsychotic drugs. Id., at 349. After
noting that Sell subsequently had “been returned to an open ward,” the
District Court held the Magistrate’s “dangerousness” finding “clearly
erroneous.” Id., at 349, and n. 5. The court limited its
determination to Sell’s “dangerousness at this time to himself and to
those around him in his institutional context.” Id., at
349 (emphasis in original).
Nonetheless, the District Court affirmed the Magistrate’s order permitting
Sell’s involuntary medication. The court wrote that “antipsychotic drugs
are medically appropriate,” that “they represent the only viable hope
of rendering defendant competent to stand trial,” and that “administration
of such drugs appears necessary to serve the government’s compelling
interest in obtaining an adjudication of defendant’s guilt or innocence
of numerous and serious charges” (including fraud and attempted murder). Id.,
at 354. The court added that it was “premature” to consider whether “the
effects of medication might prejudice [Sell’s] defense at trial.” Id.,
at 351, 352. The Government and Sell both appealed.
Fifth, in March 2002, a divided panel of the Court of Appeals affirmed
the District Court’s judgment. 282 F. 3d 560 (CA8). The majority affirmed
the District Court’s determination that Sell was not dangerous. The majority
noted that, according to the District Court, Sell’s behavior at the Medical
Center “amounted at most to an ‘inappropriate familiarity and even infatuation’
with a nurse.” Id., at 565. The Court of Appeals agreed,
“[u]pon review,” that “the evidence does not support a finding that Sell
posed a danger to himself or others at the Medical Center.” IbId.
The Court of Appeals also affirmed the District Court’s order requiring
medication in order to render Sell competent to stand trial. Focusing
solely on the serious fraud charges, the panel majority concluded that
the “government has an essential interest in bringing a defendant to
trial.” Id., at 568. It added that the District Court “correctly
concluded that there were no less intrusive means.” ibid. After
reviewing the conflicting views of the experts, Id., at
568–571, the panel majority found antipsychotic drug treatment “medically
appropriate” for Sell, Id., at 571. It added that the “medical
evidence presented indicated a reasonable probability that Sell will
fairly be able to participate in his trial.” Id., at 572.
One member of the panel dissented primarily on the ground that the fraud
and money laundering charges were “not serious enough to warrant the
forced medication of the defendant.” Id., at 574 (opinion
of Bye, J.).
We granted certiorari to determine whether the Eighth Circuit “erred
in rejecting” Sell’s argument that “allowing the government to administer
antipsychotic medication against his will solely to render him competent
to stand trial for nonviolent offenses,” Brief for Petitioner i, violated
the Constitution—in effect by improperly depriving Sell of an important
“liberty” that the Constitution guarantees, Amdt. 5.
We first examine whether the Eighth Circuit had jurisdiction to decide
Sell’s appeal. The District Court’s judgment, from which Sell had appealed,
was a pretrial order. That judgment affirmed a Magistrate’s order requiring
Sell involuntarily to receive medication. The Magistrate entered that
order pursuant to an earlier delegation from the District Court of legal
authority to conduct pretrial proceedings. App. 340; see 28 U. S. C.
§636(b)(1)(A). The order embodied legal conclusions related to the Medical
Center’s administrative efforts to medicate Sell; these efforts grew
out of Sell’s provisional commitment; and that provisional commitment
took place pursuant to an earlier Magistrate’s order seeking a medical
determination about Sell’s future competence to stand trial. Cf. Riggins
v. Nevada, 504 U. S. 127 (1992) (reviewing, as part of criminal
proceeding, trial court’s denial of defendant’s motion to discontinue
medication); Stack v. Boyle, 342 U. S. 1, 6–7 (1951) (district
court’s denial of defendant’s motion to reduce bail is part of criminal
proceeding and is not reviewable in separate habeas action).
How was it possible for Sell to appeal from such an order? The law normally
requires a defendant to wait until the end of the trial to obtain appellate
review of a pretrial order. The relevant jurisdictional statute, 28 U.
S. C. §1291, authorizes federal courts of appeals to review “final decisions
of the district courts.” (Emphasis added.) And the term “final decision”
normally refers to a final judgment, such as a judgment of guilt, that
terminates a criminal proceeding.
Nonetheless, there are exceptions to this rule. The Court has held that
a preliminary or interim decision is appealable as a “collateral order”
when it (1) “conclusively determine[s] the disputed question,” (2) “resolve[s]
an important issue completely separate from the merits of the action,”
and (3) is “effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand
v. Livesay, 437 U. S. 463, 468 (1978). And this District Court
order does appear to fall within the “collateral order” exception.
The order (1) “conclusively determine[s] the disputed question,” namely,
whether Sell has a legal right to avoid forced medication. ibid. The
order also (2) “resolve[s] an important issue,” for, as this Court’s
cases make clear, involuntary medical treatment raises questions of clear
constitutional importance. ibid. See Winston v. Lee,
470 U. S. 753, 759 (1985) (“[a] compelled surgical intrusion into an
individual’s body . . . implicates expectations of privacy and security”
of great magnitude); see also Riggins, supra, at 133–134; Cruzan
v. Director, Mo. Dept. of Health, 497 U. S. 261, 278–279 (1990); Washington
v. Harper, 494 U. S. 210, 221–222 (1990). At the same time, the
basic issue—whether Sell must undergo medication against his will—is
“completely separate from the merits of the action,” i.e., whether
Sell is guilty or innocent of the crimes charged. Coopers & Lybrand,
437 U. S., at 468. The issue is wholly separate as well from questions
concerning trial procedures. Finally, the issue is (3) “effectively unreviewable
on appeal from a final judgment.” ibid. By the time of trial
Sell will have undergone forced medication—the very harm that he seeks
to avoid. He cannot undo that harm even if he is acquitted. Indeed, if
he is acquitted, there will be no appeal through which he might obtain
review. Cf. Stack, supra, at 6–7 (permitting appeal of order
setting high bail as “collateral order”). These considerations, particularly
those involving the severity of the intrusion and corresponding importance
of the constitutional issue, readily distinguish Sell’s case from the
examples raised by the dissent. See post, at 6 (opinion
of SCALIA, J.).
We add that the question presented here, whether Sell has a legal right
to avoid forced medication, perhaps in part because medication may make
a trial unfair, differs from the question whether forced medication did make
a trial unfair. The first question focuses upon the right to avoid administration
of the drugs. What may happen at trial is relevant, but only as a prediction.
See infra, at 13. The second question focuses upon the right
to a fair trial. It asks what did happen as a result of having
administered the medication. An ordinary appeal comes too late for a
defendant to enforce the first right; an ordinary appeal permits vindication
of the second.
We conclude that the District Court order from which Sell appealed was
an appealable “collateral order.” The Eighth Circuit had jurisdiction
to hear the appeal. And we consequently have jurisdiction to decide the
question presented, whether involuntary medication violates Sell’s constitutional
We turn now to the basic question presented: Does forced administration
of antipsychotic drugs to render Sell competent to stand trial unconstitutionally
deprive him of his “liberty” to reject medical treatment? U. S. Const.,
Amdt. 5 (Federal Government may not “depriv[e]” any person of “liberty
. . . without due process of law”). Two prior precedents, Harper,
supra, and Riggins, supra, set forth the framework
for determining the legal answer.
In Harper, this Court recognized that an individual has
a “significant” constitutionally protected “liberty interest” in “avoiding
the unwanted administration of antipsychotic drugs.” 494 U. S., at 221.
The Court considered a state law authorizing forced administration of
those drugs “to inmates who are . . . gravely disabled or represent a
significant danger to themselves or others.” Id., at 226.
The State had established “by a medical finding” that Harper, a mentally
ill prison inmate, had “a mental disorder . . . which is likely to cause
harm if not treated.” Id., at 222. The treatment decision
had been made “by a psychiatrist,” it had been approved by “a reviewing
psychiatrist,” and it “ordered” medication only because that was “in
the prisoner’s medical interests, given the legitimate needs of his institutional
The Court found that the State’s interest in administering medication
was “legitima[te]” and “importan[t],” Id., at 225; and it
held that “the Due Process Clause permits the State to treat a prison
inmate who has a serious mental illness with antipsychotic drugs against
his will, if the inmate is dangerous to himself or others and the treatment
is in the inmate’s medical interest.” Id., at 227. The Court
concluded that, in the circumstances, the state law authorizing involuntary
treatment amounted to a constitutionally permissible “accommodation between
an inmate’s liberty interest in avoiding the forced administration of
antipsychotic drugs and the State’s interests in providing appropriate
medical treatment to reduce the danger that an inmate suffering from
a serious mental disorder represents to himself or others.” Id.,
In Riggins, the Court repeated that an individual has a
constitutionally protected liberty “interest in avoiding involuntary
administration of antipsychotic drugs”—an interest that only an “essential”
or “overriding” state interest might overcome. 504 U. S., at 134, 135.
The Court suggested that, in principle, forced medication in order to
render a defendant competent to stand trial for murder was constitutionally
permissible. The Court, citing Harper, noted that the State
“would have satisfied due process if the prosecution had demonstrated
. . . that treatment with antipsychotic medication was medically appropriate
and, considering less intrusive alternatives, essential for the sake
of Riggins’ own safety or the safety of others.” 504 U. S.,
at 135 (emphasis added). And it said that the State “[s]imilarly .
. . might have been able to justify medically appropriate, involuntary
treatment with the drug by establishing that it could not obtain an adjudication
of Riggins’ guilt or innocence” of the murder charge “by using less intrusive
means.” ibid. (emphasis added). Because the trial court
had permitted forced medication of Riggins without taking account of
his “liberty interest,” with a consequent possibility of trial prejudice,
the Court reversed Riggins’ conviction and remanded for further proceedings. Id.,
at 137–138. JUSTICE KENNEDY, concurring in the judgment, emphasized that
antipsychotic drugs might have side effects that would interfere with
the defendant’s ability to receive a fair trial. Id., at
145 (finding forced medication likely justified only where State shows
drugs would not significantly affect defendant’s “behavior and demeanor”).
These two cases, Harper and Riggins, indicate that the Constitution permits
the Government involuntarily to administer antipsychotic drugs to a mentally
ill defendant facing serious criminal charges in order to render that
defendant competent to stand trial, but only if the treatment is medically
appropriate, is substantially unlikely to have side effects that may
undermine the fairness of the trial, and, taking account of less intrusive
alternatives, is necessary significantly to further important governmental
This standard will permit involuntary administration of drugs solely
for trial competence purposes in certain instances. But those instances
may be rare. That is because the standard says or fairly implies the
First, a court must find that important governmental interests
are at stake. The Government’s interest in bringing to trial an individual
accused of a serious crime is important. That is so whether the offense
is a serious crime against the person or a serious crime against property.
In both instances the Government seeks to protect through application
of the criminal law the basic human need for security. See Riggins,
supra, at 135–136 (“‘[P]ower to bring an accused to trial is fundamental
to a scheme of “ordered liberty” and prerequisite to social justice and
peace’” (quoting Illinois v. Allen, 397 U. S. 337, 347 (1970)
(Brennan, J., concurring))).
Courts, however, must consider the facts of the individual case in evaluating
the Government’s interest in prosecution. Special circumstances may lessen
the importance of that interest. The defendant’s failure to take drugs
voluntarily, for example, may mean lengthy confinement in an institution
for the mentally ill—and that would diminish the risks that ordinarily
attach to freeing without punishment one who has committed a serious
crime. We do not mean to suggest that civil commitment is a substitute
for a criminal trial. The Government has a substantial interest in timely
prosecution. And it may be difficult or impossible to try a defendant
who regains competence after years of commitment during which memories
may fade and evidence may be lost. The potential for future confinement
affects, but does not totally undermine, the strength of the need for
prosecution. The same is true of the possibility that the defendant has
already been confined for a significant amount of time (for which he
would receive credit toward any sentence ultimately imposed, see 18 U.
S. C. §3585(b)). Moreover, the Government has a concomitant, constitutionally
essential interest in assuring that the defendant’s trial is a fair one.
Second, the court must conclude that involuntary medication will significantly
further those concomitant state interests. It must find that
administration of the drugs is substantially likely to render the
defendant competent to stand trial. At the same time, it must find
that administration of the drugs is substantially unlikely to have
side effects that will interfere significantly with the defendant’s
ability to assist counsel in conducting a trial defense, thereby
rendering the trial unfair. See Riggins, supra, at 142–145
(KENNEDY, J., concurring in judgment).
Third, the court must conclude that involuntary medication is necessary to
further those interests. The court must find that any alternative, less
intrusive treatments are unlikely to achieve substantially the same results.
Cf. Brief for American Psychological Association as Amicus Curiae 10–14
(nondrug therapies may be effective in restoring psychotic defendants
to competence); but cf. Brief for American Psychiatric Association et
al. as Amici Curiae 13–22 (alternative treatments for psychosis commonly
not as effective as medication). And the court must consider less intrusive
means for administering the drugs, e.g., a court order to the defendant
backed by the contempt power, before considering more intrusive methods.
Fourth, as we have said, the court must conclude that administration
of the drugs is medically appropriate, i.e., in the patient’s
best medical interest in light of his medical condition. The specific
kinds of drugs at issue may matter here as elsewhere. Different kinds
of antipsychotic drugs may produce different side effects and enjoy different
levels of success.
We emphasize that the court applying these standards is seeking to determine
whether involuntary administration of drugs is necessary significantly
to further a particular governmental interest, namely, the interest in
rendering the defendant competent to stand trial. A court need
not consider whether to allow forced medication for that kind of purpose,
if forced medication is warranted for a different purpose, such
as the purposes set out in Harper related to the individual’s
dangerousness, or purposes related to the individual’s own interests
where refusal to take drugs puts his health gravely at risk. 494 U. S.,
at 225–226. There are often strong reasons for a court to determine whether
forced administration of drugs can be justified on these alternative
grounds before turning to the trial competence question.
For one thing, the inquiry into whether medication is permissible, say,
to render an individual nondangerous is usually more “objective and manageable”
than the inquiry into whether medication is permissible to render a defendant
competent. Riggins, 504 U. S., at 140 (KENNEDY, J., concurring
in judgment). The medical experts may find it easier to provide an informed
opinion about whether, given the risk of side effects, particular drugs
are medically appropriate and necessary to control a patient’s potentially
dangerous behavior (or to avoid serious harm to the patient himself)
than to try to balance harms and benefits related to the more quintessentially
legal questions of trial fairness and competence.
For another thing, courts typically address involuntary medical treatment
as a civil matter, and justify it on these alternative, Harper-type grounds.
Every State provides avenues through which, for example, a doctor or
institution can seek appointment of a guardian with the power to make
a decision authorizing medication—when in the best interests of a patient
who lacks the mental competence to make such a decision. E.g., Ala. Code
§§26–2A–102(a), 26– 2A–105, 26–2A–108 (Michie 1992); Alaska Stat. §§13.26.105(a),
13.26.116(b) (2002); Ariz. Rev. Stat. Ann. §§14–5303, 14–5312 (West 1995);
Ark. Code Ann. §§28–65–205, 28– 65–301 (1987). And courts, in civil proceedings,
may authorize involuntary medication where the patient’s failure to accept
treatment threatens injury to the patient or others. See, e.g., 28 CFR
§549.43 (2002); cf. 18 U. S. C. §4246.
If a court authorizes medication on these alternative grounds, the need
to consider authorization on trial competence grounds will likely disappear.
Even if a court decides medication cannot be authorized on the alternative
grounds, the findings underlying such a decision will help to inform
expert opinion and judicial decisionmaking in respect to a request to
administer drugs for trial competence purposes. At the least, they will
facilitate direct medical and legal focus upon such questions as: Why
is it medically appropriate forcibly to administer antipsychotic drugs
to an individual who (1) is not dangerous and (2) is competent
to make up his own mind about treatment? Can bringing such an individual
to trial alone justify in whole (or at least in significant
part) administration of a drug that may have adverse side effects, including
side effects that may to some extent impair a defense at trial? We consequently
believe that a court, asked to approve forced administration of drugs
for purposes of rendering a defendant competent to stand trial, should
ordinarily determine whether the Government seeks, or has first sought,
permission for forced administration of drugs on these other Harper-type
grounds; and, if not, why not.
When a court must nonetheless reach the trial competence question, the
factors discussed above, supra, at 11– 14, should help it
make the ultimate constitutionally required judgment. Has the Government,
in light of the efficacy, the side effects, the possible alternatives,
and the medical appropriateness of a particular course of antipsychotic
drug treatment, shown a need for that treatment sufficiently important
to overcome the individual’s protected interest in refusing it? See Harper,
supra, at 221– 223; Riggins, supra, at 134–135.
The Medical Center and the Magistrate in this case, applying standards
roughly comparable to those set forth here and in Harper,
approved forced medication substantially, if not primarily, upon grounds
of Sell’s dangerousness to others. But the District Court and the Eighth
Circuit took a different approach. The District Court found “clearly
erroneous” the Magistrate’s conclusion regarding dangerousness, and the
Court of Appeals agreed. Both courts approved forced medication solely
in order to render Sell competent to stand trial.
We shall assume that the Court of Appeals’ conclusion about Sell’s dangerousness
was correct. But we make that assumption only because the Government
did not contest, and the parties have not argued, that particular matter.
If anything, the record before us, described in Part I, suggests the
The Court of Appeals apparently agreed with the District Court that “Sell’s
inappropriate behavior . . . amounted at most to an ‘inappropriate familiarity
and even infatuation’ with a nurse.” 282 F. 3d, at 565. That being so,
it also agreed that “the evidence does not support a finding that Sell
posed a danger to himself or others at the Medical Center.” ibid. The
Court of Appeals, however, did not discuss the potential differences
(described by a psychiatrist testifying before the Magistrate) between
ordinary “over-familiarity” and the same conduct engaged in persistently
by a patient with Sell’s behavioral history and mental illness. Nor did
it explain why those differences should be minimized in light of the
fact that the testifying psychiatrists concluded that Sell was dangerous,
while Sell’s own expert denied, not Sell’s dangerousness, but the efficacy
of the drugs proposed for treatment.
The District Court’s opinion, while more thorough, places weight upon
the Medical Center’s decision, taken after the Magistrate’s hearing,
to return Sell to the general prison population. It does not explain
whether that return reflected an improvement in Sell’s condition or whether
the Medical Center saw it as permanent rather than temporary. Cf. Harper,
494 U. S., at 227, and n. 10 (indicating that physical restraints and
seclusion often not acceptable substitutes for medication).
Regardless, as we have said, we must assume that Sell was not dangerous.
And on that hypothetical assumption, we find that the Court of Appeals
was wrong to approve forced medication solely to render Sell competent
to stand trial. For one thing, the Magistrate’s opinion makes clear that
he did not find forced medication legally justified on trial
competence grounds alone. Rather, the Magistrate concluded that Sell was dangerous,
and he wrote that forced medication was “the only way to render the defendant not
dangerous and competent to stand trial.” App. 335 (emphasis added).
Moreover, the record of the hearing before the Magistrate shows that
the experts themselves focused mainly upon the dangerousness issue. Consequently
the experts did not pose important questions—questions, for example,
about trial-related side effects and risks—the answers to which could
have helped determine whether forced medication was warranted on trial
competence grounds alone. Rather, the Medical Center’s experts conceded
that their proposed medications had “significant” side effects and that
“there has to be a cost benefit analysis.” Id., at 185 (testimony
of Dr. DeMier); Id., at 236 (testimony of Dr. Wolfson).
And in making their “cost-benefit” judgments, they primarily took into
account Sell’s dangerousness, not the need to bring him to trial.
The failure to focus upon trial competence could well have mattered.
Whether a particular drug will tend to sedate a defendant, interfere
with communication with counsel, prevent rapid reaction to trial developments,
or diminish the ability to express emotions are matters important in
determining the permissibility of medication to restore competence, Riggins,
504 U. S., at 142–145 (KENNEDY, J., concurring in judgment), but not
necessarily relevant when dangerousness is primarily at issue. We cannot
tell whether the side effects of antipsychotic medication were likely
to undermine the fairness of a trial in Sell’s case.
Finally, the lower courts did not consider that Sell has already been
confined at the Medical Center for a long period of time, and that his
refusal to take antipsychotic drugs might result in further lengthy confinement.
Those factors, the first because a defendant ordinarily receives credit
toward a sentence for time served, 18 U. S. C. §3585(b), and the second
because it reduces the likelihood of the defendant’s committing future
crimes, moderate— though they do not eliminate—the importance of the
governmental interest in prosecution. See supra, at 12–13.
For these reasons, we believe that the present orders authorizing forced
administration of antipsychotic drugs cannot stand. The Government may
pursue its request for forced medication on the grounds discussed in
this opinion, including grounds related to the danger Sell poses to himself
or others. Since Sell’s medical condition may have changed over time,
the Government should do so on the basis of current circumstances.
The judgment of the Eighth Circuit is vacated, and the case is remanded
for further proceedings consistent with this opinion.
It is so ordered.
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
CHARLES THOMAS SELL, PETITIONER v.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[June 16, 2003]
JUSTICE SCALIA, with whom JUSTICE O’CONNOR and JUSTICE THOMAS join, dissenting.
The District Court never entered a final judgment in this case, which
should have led the Court of Appeals to wonder whether it had any business
entertaining petitioner’s appeal. Instead, without so much as acknowledging
that Congress has limited court-of-appeals jurisdiction to “appeals from
all final decisions of the district courts of the United States,”
28 U. S. C. §1291 (emphasis added), and appeals from certain specified
interlocutory orders, see §1292, the Court of Appeals proceeded to the
merits of Sell’s interlocutory appeal. 282 F. 3d 560 (2002). Perhaps
this failure to discuss jurisdiction was attributable to the United States’
refusal to contest the point there (as it has refused here, see Brief
for United States 10, n. 5), or to the panel’s unexpressed agreement
with the conclusion reached by other Courts of Appeals, that pre-trial
forced-medication orders are appealable under the “collateral order doctrine,”
see, e.g., United States v. Morgan, 193 F. 3d 252,
258–259 (CA4 1999); United States v. Brandon, 158 F. 3d
947, 950–951 (CA6 1998). But this Court’s cases do not authorize
appeal from the District Court’s April 4, 2001, order, which was neither
a “final decision” under §1291 nor part of the class of specified interlocutory
orders in §1292. We therefore lack jurisdiction, and I would vacate the
Court of Appeals’ decision and remand with instructions to dismiss.
After petitioner’s indictment, a Magistrate Judge found that petitioner
was incompetent to stand trial because he was unable to understand the
nature and consequences of the proceedings against him and to assist
in his defense. As required by 18 U. S. C. §4241(d), the Magistrate Judge
committed petitioner to the custody of the Attorney General, and petitioner
was hospitalized to determine whether there was a substantial probability
that in the foreseeable future he would attain the capacity to stand
trial. On June 9, 1999, a reviewing psychiatrist determined, after a
§549.43 administrative hearing , that petitioner
should be required to take antipsychotic medication, finding the medication
necessary to render petitioner competent for trial and medically appropriate
to treat his mental illness. Petitioner’s administrative appeal from
that decision  was denied with a written statement
At that point the Government possessed the requisite authority to administer
forced medication. Petitioner responded, not by appealing to the courts
the §549.43 administrative determination, see 5 U. S. C. §702, but by
moving in the District Court overseeing his criminal prosecution for
a hearing regarding the appropriateness of his medication. A
Magistrate Judge granted the motion and held a hearing. The Government
then requested from the Magistrate Judge an order authorizing the involuntary
medication of petitioner, which the Magistrate Judge entered.  On
April 4, 2001, the District Court affirmed this Magistrate Judge’s order,
and it is from this order that petitioner appealed to the Eighth
Petitioner and the United States maintain that 28 U. S. C. §1291, which
permits the courts of appeals to review “all final decisions of
the district courts of the United States” (emphasis added), allowed the
Court of Appeals to review the District Court’s April 4, 2001 order.
We have described §1291, however, as a “final judgment rule,” Flanagan
v. United States, 465 U. S. 259, 263 (1984), which “[i]n a criminal
case . . . prohibits appellate review until conviction and imposition
of sentence,” ibid. (emphasis added). See also Abney
v. United States, 431 U. S. 651, 656–657 (1977). We have invented  a
narrow exception to this statutory command: the so-called “collateral
order” doctrine, which permits appeal of district court orders that (1)
“conclusively determine the disputed question,” (2) “resolve an important
issue completely separate from the merits of the action,” and (3) are
“effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand
v. Livesay, 437 U. S. 463, 468 (1978). But the District Court’s
April 4, 2001, order fails to satisfy the third requirement of this test.
Our decision in Riggins v. Nevada, 504 U. S. 127 (1992),
demonstrates that the District Court’s April 4, 2001, order is reviewable
on appeal from conviction and sentence. The defendant in Riggins had
been involuntarily medicated while a pretrial detainee, and he argued, on
appeal from his murder conviction, that the State of Nevada had
contravened the substantive-due-process standards set forth in Washington
v. Harper, 494 U. S. 210 (1990). Rather than holding that review
of this claim was not possible on appeal from a criminal conviction,
the Riggins Court held that forced medication of a criminal
defendant that fails to comply with Harper creates an unacceptable
risk of trial error and entitles the defendant to automatic vacatur of
his conviction. 504 U. S., at 135–138. The Court is therefore wrong to
say that “[a]n ordinary appeal comes too late for a defendant to enforce”
this right, ante, at 9, and appellate review of any substantive-due-process
challenge to the District Court’s April 4, 2001, order must wait until
after conviction and sentence have been imposed. 
It is true that, if petitioner must wait until final judgment to appeal,
he will not receive the type of remedy he would prefer—a predeprivation
injunction rather than the postdeprivation vacatur of conviction provided
by Riggins. But that ground for interlocutory appeal is emphatically
rejected by our cases. See, e.g., Flanagan, supra (disallowing
interlocutory appeal of an order disqualifying defense counsel); United
States v. Hollywood Motor Car Co., 458 U. S. 263 (1982) (per
curiam) (disallowing interlocutory appeal of an order denying
motion to dismiss indictment on grounds of prosecutorial vindictiveness); Carroll
v. United States, 354 U. S. 394 (1957) (disallowing interlocutory
appeal of an order denying motion to suppress evidence).
We have until today interpreted the collateral-order exception to §1291
“‘with the utmost strictness’” in criminal cases. Midland
Asphalt Corp. v. United States, 489 U. S. 794, 799 (1989) (emphasis
added). In the 54 years since we invented the exception, see Cohen
v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949), we
have found only three types of prejudgment orders in criminal cases appealable:
denials of motions to reduce bail, Stack v. Boyle, 342 U.
S. 1 (1951), denials of motions to dismiss on double-jeopardy grounds, Abney,
supra, and denials of motions to dismiss under the Speech or Debate
Clause, Helstoski v. Meanor, 442 U. S. 500 (1979). The first
of these exceptions was justified on the ground that the denial of a
motion to reduce bail becomes moot (and thus effectively unreviewable)
on appeal from conviction. See Flanagan, supra, at 266.
As Riggins demonstrates, that is not the case here. The
interlocutory appeals in Abney and Helstoski were
justified on the ground that it was appropriate to interrupt the trial
when the precise right asserted was the right not to be tried.
See Abney, supra, at 660–661; Helstonski, supra,
at 507–508. Petitioner does not assert a right not to be tried, but a
right not to be medicated.
Today’s narrow holding will allow criminal defendants in petitioner’s
position to engage in opportunistic behavior. They can, for example,
voluntarily take their medication until halfway through trial, then abruptly
refuse and demand an interlocutory appeal from the order that medication
continue on a compulsory basis. This sort of concern for the disruption
of criminal proceedings—strangely missing from the Court’s discussion
today—is what has led us to state many times that we interpret the collateral-order
exception narrowly in criminal cases. See Midland Asphalt Corp.,
supra, at 799; Flanagan, 465 U. S., at 264.
But the adverse effects of today’s narrow holding are as nothing compared
to the adverse effects of the new rule of law that underlies the holding.
The Court’s opinion announces that appellate jurisdiction is proper because
review after conviction and sentence will come only after “Sell will
have undergone forced medication—the very harm that he seeks to avoid.” Ante,
at 9. This analysis effects a breathtaking expansion of appellate jurisdiction
over interlocutory orders. If it is applied faithfully (and some appellate
panels will be eager to apply it faithfully), any criminal defendant
who asserts that a trial court order will, if implemented, cause an immediate
violation of his constitutional (or perhaps even statutory?) rights may
immediately appeal. He is empowered to hold up the trial for months by
claiming that review after final judgment “would come too late” to prevent
the violation. A trial-court order requiring the defendant to wear an
electronic bracelet could be attacked as an immediate infringement of
the constitutional right to “bodily integrity”; an order refusing to
allow the defendant to wear a T-shirt that says “Black Power” in front
of the jury could be attacked as an immediate violation of First Amendment
rights; and an order compelling testimony could be attacked as an immediate
denial Fifth Amendment rights. All these orders would be immediately
appealable. Flanagan and Carroll, which held
that appellate review of orders that might infringe a defendant’s constitutionally
protected rights still had to wait until final judgment, are
seemingly overruled. The narrow gate of entry to the collateralorder
doctrine—hitherto traversable by only (1) orders unreviewable on appeal
from judgment and (2) orders denying an asserted right not to be tried—has
been generously widened.
The Court dismisses these concerns in a single sentence immediately following
its assertion that the order here meets the three Cohen-exception
requirements of (1) conclusively determining the disputed question (correct);
(2) resolving an important issue separate from the merits of the action
(correct); and (3) being unreviewable on appeal (quite plainly incorrect).
That sentence reads as follows: “These considerations, particularly those
involving the severity of the intrusion and corresponding importance
of the constitutional issue, readily distinguish Sell’s case from the
examples raised by the dissent.” Ante, at 9. That is a brand
new consideration put forward in rebuttal, not at all discussed in the
body of the Court’s analysis, which relies on the ground that (contrary
to my contention) this order is not reviewable on appeal. The
Court’s last-minute addition must mean that it is revising the Cohen test,
to dispense with the third requirement (unreviewable on appeal) only
when the important separate issue in question involves a “severe intrusion”
and hence an “important constitutional issue.” Of course I welcome
this narrowing of a misguided revision—but I still would not favor the
revision, not only because it is a novelty with no basis in our prior
opinions, but also because of the uncertainty, and the obvious opportunity
for gamesmanship, that the revision-as-narrowed produces. If, however,
I did make this more limited addition to the textually unsupported Cohen doctrine,
I would at least do so in an undisguised fashion.
* * *
Petitioner could have obtained pre-trial review of the §549.43 medication
order by filing suit under the Administrative Procedure Act, 5 U. S.
C. §551 et. seq., or even by filing a Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), action, which
is available to federal pretrial detainees challenging the conditions
of their confinement, see, e.g., Lyons v. U. S. Marshals,
840 F. 2d 202 (CA3 1987). In such a suit, he could have obtained immediate
appellate review of denial of relief.  But if he
chooses to challenge his forced medication in the context of a criminal
trial, he must abide by the limitations attached to such a challenge—which
prevent him from stopping the proceedings in their tracks. Petitioner’s
mistaken litigation strategy, and this Court’s desire to decide an interesting
constitutional issue, do not justify a disregard of the limits that Congress
has imposed on courts of appeals’ (and our own) jurisdiction. We should
vacate the judgment here, and remand the case to the Court of Appeals
with instructions to dismiss.
28 CFR §549.43 (2002) provides the standards
and procedures used to determine whether a person in the custody
of the Attorney General may be involuntarily medicated. Before that
can be done, a reviewing psychiatrist must determine that it is “necessary
in order to attempt to make the inmate competent for trial or is
necessary because the inmate is dangerous to self or others, is gravely
disabled, or is unable to function in the open population of a mental
health referral center or a regular prison,” §549.43(a)(5).
§549.43(a)(6) provides: “The inmate . . .
may submit an appeal to the institution mental health division administrator
regarding the decision within 24 hours of the decision and . . .
the administrator shall review the decision within 24 hours of the
It is not apparent why this order was necessary,
since the Government had already received authorization
to medicate petitioner pursuant
to §549.43. If the Magistrate Judge had denied the Government’s motion
(or if this Court were to reverse the Magistrate Judge’s order) the
Bureau of Prisons’ administrative decision ordering petitioner’s
forcible medication would remain in place. Which is to suggest that,
in addition to the jurisdictional defect of interlocutoriness to
which my opinion is addressed, there may be no jurisdiction because,
at the time this suit was filed, petitioner failed to meet the “remediability”
requirement of Article III standing. See Steel Co. v. Citizens
for Better Environment, 523 U. S. 83 (1998). The Court of
Appeals should address this jurisdictional issue on remand.
I use the term “invented” advisedly. The statutory
text provides no basis.
To be sure, the order here is unreviewable
after final judgment if the defendant is acquitted. But
the “unreviewability” leg of our collateral-order doctrine—which,
as it is framed, requires that the interlocutory order be “effectively
unreviewable on appeal from a final judgment,” Coopers & Lybrand
v. Livesay, 437 U. S. 463, 468 (1978) (emphasis added)—is
not satisfied by the possibility that the aggrieved party will have
no occasion to appeal.
Petitioner points out that there are disadvantages
to such an approach—
for example, lack of constitutional entitlement to appointed counsel
in a Bivens action. That does not entitle him or us to disregard
the limits on appellate jurisdiction.