CLE: 2007: Involuntary Medication of Criminal Defendants

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CLE: 2007: Involuntary Medication of Criminal Defendants

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Dorie Klein

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St. Mary's University School of Law San Antonio Texas Alumni Homecoming, St. Mary's University School of Law Alumni Homecoming

Date

2007-03-30

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St. Mary's University School of Law Alumni Homecoming

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RFC3778

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English, en-US

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Text

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STMU_HomecomingCLE2007Klein

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Involuntary Medication
of Criminal Defendants
Dorie Klein,

Assistant Professor of Law

Print Version II School of Law at St. Mary's University

Page 1 of 1

School ofLaw at St. Mary's University

Dorie Klein
ph: (21 0)431-2246
email: dklein@stmarytx.edu
Assistant Professor of Law
J.D., Vanderbilt University Law School
M.A. (Psychology), University of Pennsylvania
B.A., Swarthmore College
Before St. Mary's

Professor Klein joined the St. Mary's faculty in 2006, after serving for a year as a
Visiting Assistant Professor at Florida State University College of Law. She
graduated in 2002 from Vanderbilt University Law School, where she was an articles
editor for the Vanderbilt Law Review. After law school, Professor Klein worked as a
law firm associate in New York and also clerked for Judge Deborah Cook of the
United States Court of Appeals for the Sixth Circuit.
Publications

• Categorical Exclusions from Capital Punishment: How Many Wrongs Make A
Right?_ Brook. L. Rev._ (forthcoming 2007).
• Curiouser and Curiouser: Involuntary Medications and Incompetent Criminal
Defendants After Sell v. United States, 13 Wm. & Mary Bill Rts. J. 871
(2005).
• Involuntary Treatment of the Mentally Ill: Autonomy is Asking the Wrong
Question, 27 Vt. L. Rev. 649 (2003).
• Beyond Brown v. Board of Education: The Need to Remedy the Achievement
Gap, 3 1 J.L. & Educ. 431 (2002).
• Note, Trial Rights and Psychotropic Drugs, 55 Vand. L. Rev. 165 (2002).

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Competence to stand trial:
A person is competent to stand trial so long as he has "sufficient present ability to consult
with his lawyer with a reasonable degree of rational understanding" and "a rational as
well as factual understanding of the proceedings against him." Dusky v. United States,
362 U.S. 402, 402 (1960) (quoting statement of the solicitor general); see also Drope v.
Missouri, 420 U.S. 162, 171 (1975) ("[A] person whose mental condition is such that he
lacks the capacity to understand the nature and object of the proceedings against him, to
consult witb counsel, and to assist in preparing his defense may not be subjected to a
. ")
tna1. .
The Sell test:
"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 ifthe treatment is medically appropriate, is
substantially unlikely to have side effects that may unden11ine the faimess of the trial,
and, taking account of Jess intrusive altematives, is necessary significantly to further
important govemmental trial-related interests." Sell v. United States, 539 U.S. 166, 179
(2003).

1312

Schizophrenia and Other Psychotic Disorders

295.30

Diagno!

·~--------~--·---

Diagnostic criteria for Schizophrenia

Sin~

N

A. Characteristic symptoms: Two (or more) of the following, each present for a significant portion of time during a 1-month period (or less if successfully treated):
(1)
(2)
(3)
(4)
(5)

p,

Sin~

Oth

delusions
hallucinations
disorganized speech (e.g., frequent derailment or incoherence)
grossly disorganized or catatonic behavior
negative symptoms, i.e., affective flattening, alogia, or avolition

The subtYf
the time oJ
subtypes a
most sever
cal picture
and may tr
symptoms
types depe
prominent
toms); Disc
and flat or i
Paranoid T
quent halh
present). U
include pre
organized,
is continuir
toms are nc
Because
settings (e.!
tive subtyp
empirical s
chotic, diso
viduals wit

Note: Only one Criterion A symptom is required if delusions are bizarre or hallucinations consist of a voice keeping up a running commentary on the person's behavior
or thoughts, or two or more voices conversing with each other.
B. Social/occupational dysfunction: For a significant portion of the time since the onset of the disturbance, one or more major areas of functioning such as work, interpersonal relations, or self-care are markedly below the level achieved prior to the
onset (or when the onset is in childhood or adolescence, failure to achieve expected
level of interpersonal, academic, or occupational achievement).
C. Duration: Continuous signs of the disturbance persist for at least 6 months. This 6month period must include at least 1 month of symptoms (or less if successfully treated) that meet Criterion A (i.e., active-phase symptoms) and may include periods of
prodromal or residual symptoms. During these prodromal or residual periods, the
signs of the disturbance may be manifested by only negative symptoms or two or
more symptoms listed in Criterion A present in an attenuated form (e.g., odd beliefs,
unusual perceptual experiences).

D. Schizoaffective and Mood Disorder exclusion: Schizoaffective Disorder and Mood
Disorder With Psychotic Features have been ru led out because either (1) no Major Depressive, Manic, or Mixed Episodes have occurred concurrently with the active-phase
symptoms; or (2) if mood episodes have occurred during active-phase symptoms,
their total duration has been brief relative to the duration of the active and residual
periods.
E. Substance/general medical condition exclusion: The disturbance is not due to the
direct physiological effects of a substance (e.g., a drug of abuse, a medication) or a
general medical condition.

(p. 765).

F. Relationship to a Pervasive Developmental Disorder: If there is a history of Autistic
Disorder or another Pervasive Developmental Disorder, the additional diagnosis of
Schizophrenia is made only if prominent delusions or hallucinations are also present
for at least a month (or less if successfully treated).
Classification of longitudinal course (can be applied only after at least 1 year has elapsed
since the initial onset of active-phase symptoms):
Episodic With lnterepisode Residual Symptoms (episodes are defined by the
reemergence of prominent psychotic symptoms); also specify i f: With Prominent Negative Symptoms
Episodic With No lnterepisode Residual Symptoms
Continuous (prominent psychotic symptoms are present throughout the period
of observation); also specify if: With Prominent Negative Symptoms

..
...
.. '

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The essenti.
inent delus
cognitive ft
Catatonic T
disorganizE
grandiose, t
matization)
around a cc

tic Disorders

n the context
delusions of
t Shared Psy;ychotic Dis.er by the fact
:hotic Disors available to
to determine
of a genera l
Poor Insight)
rious disease
m delusional
disease is n ot
me imagined
.iefs with les s
1ce is distortmeet criteria
~nsity. When
d Delusional
1 ObsessiveDisorder can
1 Obsessiveare excessive
sting may be
' tha t one h as
develop into
cture, an adtg d elusional
lusional Dis:lould be list-

298.8

Brief Psychotic Disorder

Diagnostic criteria for 297.1 Delusional Disorder
A. Nonbizarre delusions (i.e., involving situations t hat o ccu r in real life, such as being
follo wed, poisoned, infected, loved at a d ista nce, or dece ived by spouse or lover, or
havi ng a disease) of at least 1 month's du ration.
B. Crite rion A for Schizophrenia has never been met. Note: Tactile and olfactory hallucinations may be present in Delusional Disorder if t hey are related to the delusio na l
theme.
C. Apart from th e impact of t he delusion(s) or its ram ifications, functioning is not mark-

edly impai red a nd behavior is not o bvio usly odd or bizarre.
D. If mood episodes have occurred concurrently with delusions, their t ot al duration has
been brief relative to the duration of the de lusiona l periods.
E. The disturbance is not due to the direct physio logical effects of a substance (e .g., a
drug of abuse, a medication) or a general medica l co ndition.
Specify type (the following types are assigned based on the predominant de lusio na l

theme):
d elusions that anot her person, usually of higher status, is in
love with the individual
Grandiose Type: delusions of inflated w orth, power, knowledge, id entity, or
special relationship to a deity or famous person
Jealous Type: de lusions t hat the individ ual 's sexual partner is unfait hful
Persecutory Type: de lusions t hat the person (or someone to wh o m th e person
is close) is being malevo lently tre ated in some w ay
Somatic Type: delusio ns t hat t he person has some p hysical def ect or general
medical condition
Mixed Type: delusions characte ristic of mo re t han o ne of t he above types but
no one t heme pred o minat es

Erotomanic Type:

Unspecified Type

298.8

Brief Psychotic Disorder

Diagnostic Features
The essential feature of Brief Psychotic Disorder is a disturbance that involves the
sudden onset of at least one of the following positive psychotic symptoms: delusions,
hallucinations, disorganized speech (e.g., frequent derailment or incoherence), or
grossly disorganized or catatonic behavior (Criterion A) . An episode of the disturbance
lasts at least 1 day but less than 1 month, and the individual eventually has a full return to the prem orbid level of functioning (Criterion B). The disturban ce is not better
accounted for by a Mood Disorder With Psychotic Features, by Schizoaffective Disorder, or by Schizophrenia and is not due to the d irect physiological effects of a substance (e.g., a h allucinogen ) or a general medical condition (e.g., subdural hematoma)
(Criterion C).

2174

123 SUPREME COURT REPORTER

Whatever the motives for establishing
the penitentiary as the means of combating crime, confinement became standardized in the period between 1780 and 1865.
McGowen 79. Prisons were turned into
islands of "undeviating regularity," Lewis
122, with little connection to the outside,
McGowen 108. Inside the prisons, there
were only prisoners and jailers; the difference between the two groups was conspi2sly144 obvious. !d., at 79. Prisoners'
lives were carefully regulated, including
the contacts with the outside. They were
permitted virtually no visitors; even their
letters were censored. Any contact that
might resemble normal sociability among
prisoners or with the outside world became a target for controls and prohibitions. !d., at 108.
To the extent that some prisons allowed
visitors, it was not for the benefit of those
confined, but rather to their detriment.
Many prisons offered tours in order to
increase revenues. During such tours, visitors could freely stare at prisoners, while
prisoners had to obey regulations categorically forbidding them to so much as look at
a visitor. Lewis 124. In addition to the
general "burden on the convict's spirit" in
the form of "the galling knowledge that he
was in all his humiliation subject to the
frequent gaze of visitors, some of whom
might be former friends or neighbors,"
presence of women visitors made the circumstances "almost unendurable," prompting a prison physician to complain about
allowing women in. Ibid.
Although by the 1840's some institutions
relaxed their rules against correspondence
and visitations, the restrictions continued
to be severe. For example, Sing Sing
allowed convicts to send one letter every
six months, provided it was penned by t he
chaplain and censored by the warden.
Each prisoner was permitted to have one
visit from his relatives during his sentence,
provided it was properly supervised. No
reading materials of any kind, except a
Bible, were allowed inside. S. Christianson, With Liberty for Some: 500 Years of

539

u.s.

143

Imprisonment in America 145 (1998).
With such stringent r egimentation of prisoners' lives, the prison "had assumed an
unmistakable appearance," McGowen 79,
one which did not envision any entitlement
to visitation.
Although any State is free to alter its
definition of incarceration to include the
retention of constitutional rights previously enjoyed, it appears that Michigan sentenced~5respondents against the backdrop of this conception of imprisonment.
II
In my view, for the reasons given in
Hudson v. McMilli an, 503 U.S. 1, 18-19,
112 S.Ct. 995, 117 L.Ed.2d 156 (1992)
(THOMAS, J., dissenting), regulations pertaining to visitations are not punishment
within the meaning of the Eighth Amendment. Consequently, respondents' Eighth
Amendment challenge must fail.

539 U.S. 166, 156 L.Ed.2d 197

Charles Thomas SELL, Petitioner,
v.

UNITED STATES.
No. 02--5664.
Argued March 3, 2003.
Decided June 16, 2003.
Defendant was indicted for health
care fraud, attempted murder, conspiracy,
and solicitation to commit violence. After a
hearing, the United States District Court
for the Eastern District of Missouri, Donald J. Stohr, J., reversed magistrate
judge's finding that defendant posed danger to himself and others, but affirmed
holding that forcible medication to restore
defendant to competency was warranted.

539

u.s.

166

2175

SELL v. U.S.
Cite as 123 S.Ct. 2174 (2003)

Defendant and the Government appealed.
The United States Court of Appeals for
the Eighth Circuit, 282 F.3d 560, affirmed.
Certiorari was granted. The Supreme
Court, Justice Breyer, held that: (1) pretrial order affirming magistrate judge's order requiring defendant involuntarily to
receive medication in order to render defendant competent to stand trial was immediately appealable as a collateral order;
(2) Fifth Amendment Due Process Clause
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 trial-related
interests; and (3) assuming that defendant
was not dangerous to himself or others, he
could not be ordered involuntarily to take
antipsychotic drugs solely to render him
competent to stand trial without consideration of important questions.
Vacated and remanded.
Justice Scalia filed dissenting opinion
in which Justices O'Connor and Thomas
joined.

fendant involuntarily to receive medication
in order to render defendant competent to
stand trial on fraud, attempted murder,
and other charges was immediately appealable as a collateral order; the order
conclusively determined the disputed question of whether defendant had a legal right
to avoid forced medication, resolved an
important issue of constitutional importance yet completely separate from the
merits of the action, and was effectively
unreviewable on appeal from a final judgment, in that by the time of trial defendant
would have undergone forced medication
and could not undo that harm even if he
was acquitted.
3. Constitutional Law
Mental Health

~268.2(2)

~436.1

The Fifth Amendment Due Process
Clause 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 trialrelated interests. U.S.C.A. Const.Amend.

5.
1. Criminal Law ~1023(2) , 1134(10)
The term "final decision," as used in
statute which authorizes federal courts of
appeals to review final decisions of the
district courts, normally refers to a final
judgment, such as a judgment of guilt, that
terminates a criminal proceeding, and
thus, a defendant normally must wait until
the end of trial to obtain appellate review
of a pretrial order. 28 U.S.C.A. § 1291.
See publication Words and Phrases for other judicial constructions
and definitions.

2. Mental Health <>436.1
District court's pretrial order affirming magistrate judge's order requiring de-

4. Mental Health <1:=>436.1
For purpose of determining whether
important governmental interests are at
stake as required when considering whether involuntarily to administer antipsychotic
drugs to render a mentally ill defendant
competent to stand trial, the Government's
interest in bringing to trial an individual
accused of a serious crime against the
person or a serious crime against property
is important, but the Government must
still consider the facts of the individual
case in evaluating the Government's interest in prosecution; special circumstances
may lessen the importance of that interest.

2176

123 SUPREME COURT REPORTER

539

u.s.

166

5. Mental Health <P436.1

8. Mental Health <P436.1
Assuming that defendant was not danIn order to find that involuntary medigerous to himself or others, he could not
cation of a mentally ill defendant will significantly further important state interests, be ordered involuntarily to take antipsyas required when considering whether in- chotic drugs solely to render him competent to stand trial on attempted murder
voluntarily to administer antipsychotic
and other charges without consideration of
drugs to render a mentally i1l defendant
important questions about trial-related
competent to stand trial, a court must find
side effects and risks of drugs to be used
that administration of the drugs is sub- and whether they were likely to undermine
stantially likely to render the defendant fairness of trial, and consideration of effect
competent to stand trial, and that adminis- on importance of governmental interest in
tration of the drugs is substantially unlike- prosecution by facts that defendant had
ly to have side effects that will interfere already been confined at prison medical
significantly with the defendant's ability to center for a long period of time, and that
assist counsel in conducting a trial defense, his refusal to take antipsychotic drugs
thereby rendering the trial unfair.
might result in further lengthy confinement, where magistrate approved forced
6. Mental Health <P436.1
medication of defendant substantially, if
In order to find that involuntary medi- not primarily, upon grounds of his dangercation of a mentally ill defendant is neces- ousness to others.
sary to further important state interests,
Syllabus*
as required when considering whether inA Federal Magistrate Judge (Magisvoluntarily to administer antipsychotic
drugs to render a mentally ill defendant trate) initially found petitioner Sell, who
competent to stand trial, a court must find has a long history of mental illness, compethat any alternative, less intrusive treat- tent to stand trial for fraud and released
ments are unlikely to achieve substantially him on bail, but later revoked bail because
the same results, and must consider less Sell's condition had worsened. Sell subseintrusive means for administering the quently asked the Magistrate to reconsider
drugs, such as a court order to the defen- his competence to stand trial for fraud and
attempted murder. The Magistrate had
dant backed by the contempt power, behim examined at a United States Medical
fore considering more intrusive methods.
Center for Federal Prisoners (Medical
Center), found him mentally incompetent
7. Mental Health e::::>436.1
to stand trial, and ordered his hospitalizaIn order to find that involuntary medi- tion to determine whether he would attain
cation of a mentally ill defendant is medi- the capacity to allow his trial to proceed.
cally appropriate, as required when consid- "While there, Sell refused the staffs recomering whether involuntarily to administer mendation to take antipsychotic mediantipsychotic drugs to render a mentally ill cation. Medical Center authorities deciddefendant competent to stand trial, a court ed to allow involuntary medication, which
must find that it is in the defendant's best Sell challenged in court. The Magistrate
medical interest in light of his medical authorized forced administration of anticondition and the specific kinds of drugs at psychotic drugs, finding that Sell was a
issue, including their side effects and levels danger to himself and others, that medication was the only way to render him less
of success.
• 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 Slales v. Delroit Timber & Lumber Co., 200 U .S . 32 1, 337, 26 S.Ct.
282, SO L.Ed. 499 .

539

u.s.

167

SELL v. U.S.

2177

Cite as 123 S.Ct. 2174 (2003)

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.
Held:
1. 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. Coope1·s & Lybrand v. Livesay,
437 U.S. 463, 468, 98 S.Ct. 2454, 57
L.Ed.2d 351. It also resolves an important issue, for involuntary medical treatment raises questions of clear constitutional importance. Ibid. And the issue is
effectiv~ly unreviewable on appealJ..ui 7from
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. 2181-2183.
2. Under the framework of Washington v. Harper, 494 U.S. 210, 110 S.Ct.
1028, 108 L.Ed.2d 178, and Riggins v.
N evada, 504 U.S. 127, 112 S.Ct. 1810, 118
L.Ed.2d 479, the Constitution permits the
Government involuntarily to administer
antipsychotic drugs to render a menta11y
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.
2183-2186.
(a) 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 vvith 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, Jess intrusive treatments are unlikely to achieve substantially
the same results. Fourth, the court must
conclude that administering the drugs is
rnedically apptopriate. Pp. 2183-2185.
(b) The court applying these standards is trying to determine whether
forced medication is necessary to further
the Government's inter est in rendering the
defendant competent to stand trial. If a

2178

123 SUPREME COURT REPORTER

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,
.J..u;8 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. 2185-2186.
3. 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 t rial 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 govern-

539

u.s.

167

mental 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.
2186-2187.
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,
post, p. 2187.
Norman S. London, Federal Public Defender, Lee T. Lawless, St. Louis, Missouri, Lewis, Rice & Fingersh, L.C., Barry
A. Short, Neal F. Perryman, Mark N.
Light, Sandra F. Sperino, Aaron L. Pawlitz, St. Louis, Missouri, for Petitioner.
Theodore B. Olson, Solicitor General,
Michael Chertoff, Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor
General, Lisa Schiavo Blatt, Assistant to
the Solicitor General, Joseph C. Wyderko,
Department of Justice, Washington, D.C.,
for the United States.
For U.S. Supreme Court briefs, see:
2002 WL 32001698 (Pet.Brief)
2003 WL 193605 (Resp.Brief)
2003 WL 546412 (Reply.Brief)
.J..u;~Justice BREYER delivered the
opinion of the Court.

The question presented is whet her 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

539

u.s.

SELL v. U.S.

171

2179

Cite as 123 S.Ct. 2174 (2003)

that the requisite circumstances existed in
this case, we vacate its judgment.
I
A
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. !d., at
148; Record Forensic Report, p. 1 (June
20, 1997 (Sealed)). Sel!..l.u0was 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.
!d., at 4. In April1997, 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." I d., at 1.

In May 1997, the Government charged
Sell \.Vith 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 Magistrate 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. !d., 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." !d., at 322. A psychiatrist reported that Sell could not sleep
because he expected the Federal Bureau
of Investigation (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. !d., 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 thtiJJ 1United
States Medical Center for Federal Prisoners (Medical Center) at Springfield, Missouri, for examination. Subsequently the
Magistrate found that Sell was "mentally
incompetent to stand trial." ld., 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 present proceedings.

B
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

2180

123 SUPREME COURT REPORTER

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). ld., at 147-150.
The reviewing psychiatrist then authorized involuntary administration of the
drugs, both (1) because Sell was "m~l­
ly172 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." !d., at
144.

539

u.s.

171

that [Sell] would benefit from the utilization of anti-psychotic medication." !d., at
157.

Third, in July 1999, Sell filed a court
motion contesting t he Medical Center's
right involuntarily to administer antipsychotic drugs. In September 1999, the
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, s~stedm 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.

Second, the Medical Center administratively reviewed the determination of its
reviev.ring 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
In August 2000, the Magistrate found
the medical intervention "most likely" to that "the government has made a substan"ameliorate" Sell's symptoms; that other tial and very strong showing that Dr. Sell
"less restrictive interventions" are "unlike- is a danger to himself and others at the
ly" to work; and that Sell's "pervasive institution in which he is cmTently incarbelief' that he was "being targeted for cerated"; that "the government has shown
nefarious actions by various governmental that anti-psychotic medication is the only
. . . parties," along v.rith the "current way to render him less dangerous"; that
charges of conspiracy to commit murder," newer drugs and/or changing drugs will
made Sell "a potential risk to the safety of "ameliorat[e]" any "serious side effects" ;
one or more others in the community." that "the benefits to Dr. Sell ... far outI d., at 154-155. The reviewing official weigh any risks"; and that "there is a
"upheld" the "hearing officer's decision substantial probability that" the drugs \\rill

539

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175

SELL v. U.S.

2181

Cit< as 123 S.Ct. 2174 (2003)

"retur[n]" Sell "to competency." !d., at
333~334. The Magistrate concluded that
"the government has shown in as strong a
manner as possible, that anti-psychotic
medications are the only way to render the
defendant not dangerous and competent to
stand trial." Jd., 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" ...l.JJ~finding
"clearly erroneous." !d., 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." I d., at 349 (emphasis in
original).
Nonetheless, the District Court affirmed
the Magistrate's order permitting Sell's
involuntary medication. The court wrote
that "anti-psychotic 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). Jd., at 354. The court added
that it was "premature" to consider whether "the effects of medication might prejudice [Sell's] defense at trial." I d., 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 (CAS
2002). 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 revie·wing
the conflicting views of the experts, id., at
568-571, the panel majority found antipsychotic drug treatment "m~ally 175 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,
Arndt. 5.
II

We first examine whether the Eighth
Circuit had jurisdiction to decide Sell's ap-

2182

123 SUPREME COURT REPORTER

539

u.s.

175

peal. The District Court's judgment, from this District Court order does appear to
which Sell had appealed, was a pretrial fall within the "collateral order" exception.
order. That judgment affirmed a Magis[2] The order (1) "conclusively detertrate's order requiring Sell involuntarily to
receive medication. The Magistrate en- mine[s] the disputed question," namely,
tered that order pursuant to an earlier whether Sell has a legal right to avoid
delegation from the District Court of legal forced medication. Ibid. The order also
authority to conduct pretrial proceedings. (2) "resolve[s] an important issue," for, as
App. 340; see 28 U.S.C. § 636(b)(1)(A). this Court's cases make clear, involuntary
The order embodied legal conclusions re- medical treatment raises questions of clear
lated to the Medical Center's administra- constitutional importance. Ibid. See Wintive efforts to medicate Sell; these efforts ston v. Lee, 470 U.S. 753, 759, 105 S.Ct.
grew out of Sell's provisional commitment; 1611, 84 L.Ed.2d 662 (1985) ("A compelled
and that provisional commitment took surgical intrusion into an individual's body
place pursuant to an earlier Magistrate's . . . implicates expectations of privacy and
order seeking a medical determination security" of great magnitude); see also
about Sell's future competence to stand Riggins, supra, at 133-134, 112 S.Ct. 1810;
trial. Cf. Riggins v. Nevada, 504 U.S. 127, Cruzan v. Director, Mo. Dept. of Health,
112 S.Ct. 1810, 118 L.Ed.2d 479 (1992) 497 U.S. 261, 278-279, 110 S.Ct. 2841, 111
(reviewing, as part of criminal proceeding, L.Ed.2d 224 (1990); Washington v. Hartrial court's denial of defendant's motion to per, 494 U.S. 210, 221- 222, 110 S.Ct. 1028,
discontinue medication); Stack v. Boyle, 108 L.Ed.2d 178 (1990). At the same time,
31\2 U.S. 1, 6--7, 72 S.Ct. 1, 96 L.Ed. 3 the basic issue-whether Sell must under(1951) (district court's denial of defendant's go medication against his will-is "commotion to reduce bail is part of criminal pletely separate from the merits of the
proceeding and is not reviewable in sepa- action," ie., whether Sell is guilty or innocent of the crimes charged. Coopers &
rate habeas action).
Lybrand, 437 U.S., at 468, 98 S.Ct. 2454.
[1] .J.uGHow was it possible for Sell to
appeal from such an order? The law nor- The issue is wholly separate as well from
mally requires a defendant to wait until questions concerning trial procedures. Fithe end of the trial to obtain appellate nally, the issue is (3) "effectively unreviewreview of a pretrial order. The relevant able on appeal from a final judgment."
jurisdictional statute, 28 U.S.C. § 1291, au- Ibid. By the time of trial Sell will have
thorizes federal courts of appeals to review undergonru.u 7forced medication-the very
"final decisions of the district courts." harm that he seeks to avoid. He cannot
(Emphasis added.) And the term "final undo that harm even if he is acquitted.
decision" normally refers to a final judg- Indeed, if he is acquitted, there will be no
ment, such as a judgment of guilt, that appeal through which he might obtain review. Cf. Stack, supra, at 6-7, 72 S.Ct. 1
terminates a criminal proceeding.
(permitting appeal of order setting high
Nonetheless, there are exceptions to this
b ail as "collateral order"). These considrule. The Court has held that a prelimierations, particularly those involving the
nary or interim decision is appealable as a
severity of the intrusion and corresponding
"collateral order" when it (1) "conclusively
importance of the constitutional issue,
determine[s] t he disputed question," (2)
readily distinguish Sell's case from the ex"resolve[s] an important issue completely
amples raised by the dissent. See pos~ at
separate from the merits of the action,"
2190 (opinion of SCALIA, J.).
and (3) is "effectively unreviewable on apWe add that the question presented
peal from a final judgment." Coopers &
Lybrand v. Livesay, 437 U.S. 463, 468, 98 here, whether Sell has a legal right to
S.Ct. 2454, 57 L.Ed.2d 351 (1978). And avoid forced medication, perhaps in part

539

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SELL v. U.S.

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Cite as 123 S.Ct. 2174 (2003)

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 21842185. 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 consti·"'o
tutional rights.

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 confinement." Ibid.

The Court found that the State's interest in administering medication was "legitima[te]" and "importan[t)," id., at 225, 110
S.Ct. 1028; 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, 110
S.Ct. 1028. 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
III
avoiding the forced administration of antiWe turn now to the basic question presented: Does forced administration of an- psychotic drugs and the State's interests in
tipsychotic drugs to render Sell competent providing appropriate medical treatment
to stand trial unconstitutionally deprive to reduce the danger that an inmate sufhim of his "liberty" to reject medical treat- fering from a serious mental disorder repment? U.S. Canst., Arndt. 5 (Federal Gov- resents to himself or others." !d., at 236,
ernment may not "depriv[ej" any person of 110 S.Ct. 1028.
"liberty ... without due process of law").
In Riggins, the Court repeated that an
Two prior pre~nts, 178 Harper, supra,
individual has a constitutionally protected
and Riggins v. Nevada, 504 U.S. 127, 112
S.Ct. 1810, 118 L.Ed.2d 479 (1992), set liberty "interest in avoiding involuntary
forth the framework for determining the administration of antipsychotic drugs"-an
interest.J.u9that only an "essential" or
legal answer.
"oveniding" state interest might overIn Harper, this Court recognized that an
come. 504 U.S., at 134, 135, 112 S.Ct.
individual has a "significant" constitution1810. The Court suggested that, in princially protected "liberty interest" in "avoiding the unwanted administration of anti- ple, forced medication in order to render a
psychotic drugs." 494 U.S., at 221, 110 defendant competent to stand trial for
S.Ct. 1028. The Court considered a state murder was constitutionally permissible.
Jaw authorizing forced administration of The Court, citing H arpe1·, noted that the
those drugs "to inmates who are . . . State "would have satisfied due process if
gravely disabled or represent a significant the prosecution had demonstrated . . . that
danger to themselves or others." Id., at treatment with antipsychotic medication
226, llO S.Ct. 1028. The State had estab- was medically appropriate and, considering
lished "by a medical finding" that Harper, less intrusive alternatives, essential for the
a mentally ill prison inmate, had "a mental sake of Riggins' own safety or the safety of
disorder ... which is likely to cause harm othe1·s." 504 U.S., at 135, ll2 S.Ct. 1810
if not treated." !d., at 222, llO S.Ct. 1028. (emphasis added). And it said that the

2184

123 SUPREME COURT REPORTER

539

u.s.

179

State "[s)imilarly
might have been In both instances the Government seeks to
able to justify medically appropriate, invol- protect through application of the criminal
untary treatment with the drug by estab- law the basic human need for security.
lishing that it could not obtain an adjudica- See Riggins, supra, at 135-136, 112 S.Ct.
tion of Riggins' guilt or innocence" of the 1810 (" '[P)ower to bring an accused to
murder charge "by using less intrusive trial is fundamental to a scheme of "ormeans." Ibid. (emphasis added). Because dered liberty" and prerequisite to social
the trial court had permitted forced medi- justice and peace' " (quoting !Uinois v. Alcation of Riggins without taking account of len, 397 U.S. 337, 347, 90 S.Ct. 1057, 25
his "liberty interest," with a consequent L.Ed.2d 353 (1970) (Brennan, J ., concurpossibility of trial prejudice, the Court re- ring))).
versed Riggins' conviction and remanded
Courts, however, must consider the facts
for further proceedings. I d. , at 137- 138,
of the individual case in evaluating the
112 S.Ct. 1810. JusTICE KENNEDY, concurGovernment's interest in prosecution.
ring in the judgment, emphasized that anSpecial circumstances may lessen the imtipsychotic drugs might have side effects
portance of that interest. The defendant's
that would interfere with the defendant's
failure to take drugs voluntarily, for examability to receive a fair trial. Id., at 145,
ple, may mean lengthy confinement in an
112 S.Ct. 1810 (finding forced medication
institution for the mentally ill-and that
likely justified only where State shows
would diminish the risks tljat ordinarily
drugs would not significantly affect defenattach to freeing without punishment one
dant's "behavior and demeanor").
who has committed a serious crime. We
r3l These two cases, Harper and Rig- do not mean to suggest that civil commitgins, indicate that the Constitution permits ment is a substitute for a criminal trial.
the Government involuntarily to adminis- The Government has a substantial interest
ter antipsychotic drugs to a mentally ill in timely prosecution. And it may be diffidefendant facing serious criminal charges cult or impossible to try a defendant who
in order to render that defendant compe- regains competence after years of committent to stand trial, but only if the treat- ment during which memories may fade
ment is medically appropriate, is substan- and evidence may be lost. The potential
tially unlikely to have side effects that may for future confmement affects, but does
undermine the fairness of the trial, and, not totally undermine, the strength of the
taking account of less intrusive alterna- need for prosecution. The same is true of
tives, is necessary significantly to further the possibility that the defendant has alimportant governmental trial-related inter- ready been confined for a significant
amount of time (for which he would receive
ests.
credit toward any sentence ultimately im~ 0This standard 'Nill permit involuntary
administration of drugs solely for trial posed, see 18 U.S.C. § 3585(b)). Morecompetence purposes in certain instances. over, the Government has a concomitant,
But those instances may be rare. That is constitutionally essential interest in assurbecause the standard says or fairly implies ing that the defendant's trial is a fair one.
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. That is so whether
the offense is a serious crime against the
person or a serious crime against property.
[4)

[5) ~ 1 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

539

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183

SELL v. U.S.

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Cite as 123 S.Ct. 2174 (2003)

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, 504 U.S., at 142-145, 112
S.Ct. 1810 (KENNEDY, J., concurring in
judgment).

U.S., at 225-226, 110 S.Ct. 1028. 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
[6] Third, the court must conclude that medication is permissible, say, to render
involuntary medication is necessary to fur- an individual nondangerous is usually more
ther those interests. The court must find "objective and manageable" than the inquithat any alternative, less intrusive treat- ry into whether medication is permissible
ments are unlikely to achieve substantially to render a defendant competent. Rigthe same results. Cf. Brief for American gins, supra, at 140, 112 S.Ct. 1810 (KENPsychological Association as Amicus Curi- NEDY, J., concurring in judgment). The
ae 10-14 (nondrug therapies may be effec- medical experts may find it easier to protive in restoring psychotic defendants to vide an informed opinion about whether,
competence); but cf. Brief for American given the risk of side effects, particular
Psychiatric Association et al. as Amici Cu- drugs are medically appropriate and necriae 13-22 (alternative treatments for psy- essary to control a patient's potentially
chosis commonly not as effective as medi- dangerous behavior (or to avoid serious
cation). And the court must consider less harm to the patient himself) than to try to
intrusive means for administering the balance harms and benefits related to the
drugs, e.g., a court order to the defendant more quintessentially legal questions of
backed by the contempt power, before con- trial fairness and competence.
sidering more intrusive methods.
For another thing, courts typically ad[7] Fourth, as we have said, the court
dress involuntary medical treatment as a
must conclude that administration of the
drugs is med·icaUy appropriate, i.e., in the civil matter, and justify it on these alternapatient's best medical interest in light of tive, Harper-type grounds. Every State
his medical condition. The specific kinds provides avenues through which, for examof drugs at issue may matter here as else- ple, a doctor or institution can seek apwhere. Different kinds of antipsychotic pointment of a guardian with the power to
drugs may produce different side effects make a decision authorizing medicationwhen in the best interests of a patient who
and enjoy different levels of success.
lacks the mental competence to make such
We emphasize that the court applying a decision. E.g., AJa.Code §§ 26-2Athese standards is seeking to determine 102(a), 26-2A-105, 26-2A-108 (West 1992);
whether involuntary administration of Alaska Stat. §§ 13.26.105(a), 13.26.116(b)
drugs is necessary significantly to further (2002); Ariz.Rev.Stat. Ann. §§ 14-5303,
a particular governmental interest, name- 14-5312 (West 1995); Ark.Code Ann.
ly, the interest in rendering the defendant §§ 28-65-205, 28-65-301 (1987). And
competent to stand trial. A court need
courts, in civil proceedings, may authorize
not consider whether to allow forced medi- involuntary medication where the patient's
cation for that kind of purpos~ 2if forced
failure to accept treatment threatens injumedication is warranted for a different ry to the patient or others. See, e.g., 28
purpose, such as the purposes set out in
CFR § 549.43 (2002); cf. 18 U.S.C. § 4246.
Harper related to the individual's dangerousness, or purposes related to the individ- ._.W3If a court authorizes medication on
ual's own interests where refusal to take these alternative grounds, the need to condrugs puts his health gravely at risk. 494 sider authorization on trial competence

2186

123 SUPREME COURT REPORTER

539

u.s.

183

grounds will likely disappear. Even if a a different approach. The District Court
court decides medication cannot be author- found "clearly erroneous" the Magistrate's
ized on the alternative grounds, the find- conclusion regarding dangerousness, and
ings underlying such a decision will help to the Court of Appeals agreed. Both courts
inform expert opinion and judicial decision- approved forced medication solely in order
making in respect to a request to adminis- to render Sell competent to stand trial.
ter drugs for trial competence purposes.
We shall assume that the Court of ApAt the least, they will facilitate direct medical and legal focus upon such questions as: peals' conclusion about Sell's dangerousWhy is it medically appropriate forcibly to ness was correct. But we make that asadminister antipsychotic drugs to an indi- sumption only because the Government
vidual who (1) is not dangerous and (2) is did not contest, and the parties have not
competent to make up his own mind about argued, that particular matter. If anytreatment? Can bringing such an individ- thing, the record before us, described in
ual to trial alone justify in whole (or at Part I, suggests the contrary.
least in significant part) administration of
The Court of Appeals apparently agreed
a drug that may have adverse side effects,
with the District Court that "Sell's inapincluding side effects that may to some
propriate behavior . . . amounted at most
extent impair a defense at trial? We conto an 'inappropriate familiarity and even
sequently believe that a court, asked to
infatuation' with a nurse." 282 F.3d, at
approve forced administration of drugs for
565. That being so, it also agreed that
purposes of rendering a defendant compe"the evidence does not support a finding
tent to stand trial, should ordinarily deterthat Sell posed a danger to himself or
mine whether the Government seeks, or
others at the Medical Center." lbi.d. The
has first sought, permission for forced adCourt of Appeals, however, did not discuss
ministration of drugs on these other Harthe potential differences (described by a
peT-type grounds; and, if not, why not.
psychiatrist testifying before the MagisWhen a court must nonetheless reach trate) between ordinary "over-familiarity"
the trial competence question, the factors and the same conduct engaged in persisdiscussed above, supra, at 2184-2185, tently by a patient with Sell's behavioral
should help it make the ultimate constitu- history and mental illness. Nor did it
tionally required judgment. Has the Gov- eli.1Jlain why those differences should be
ernment, in light of the efficacy, the side minimized in light of the fact that the
effects, the possible alternatives, and the testifying psychiatrists concluded that Sell
medical appropriateness of a particular was dangerous, while Sell's ovm expert
course of antipsychotic drug treatment, denied, not Sell's dangerousness, but the
shown a need for that treatment sufficient- efficacy of the drugs proposed for treatly important to overcome the individual's ment.
protected interest in refusing it? See
The District Court's opinion, while more
Hm7Jer, supTa, at 221-223, llO S.Ct. 1028;
Riggins, supra, at 134-135, 112 S.Ct. 1810. thorough, places weight upon the Medical
Center's decision, taken after the MagisIV
trate's hearing, to return Sell to the generThe Medical Center and t he Magistrate al prison population. It does not explain
in this case, applying standards roughly whether t hat return reflected an improvecomparable to those set forth here and in ment in Sell's condition or whether the
Harper, approved forced medication sub- Medical Center saw it as permanent rather
stantially, if not primarily, upon grounds of than temporary. Cf. Harper, supra, at
Sell's dangerousness to o~-s. 184 But the 227, and n. 10, 110 S.Ct. 1028 (indicating
District Court and the Eighth Circuit took that physical.,.W5restraints and seclusion

539

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186

2187

SELL v. U.S.
Cite as 123 S.Ct. 2174 (2003)

often not acceptable substitutes for medication).
[8] 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 questionsquestions, 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." !d., 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, 112 S.Ct. 1810 (KENNEDY, J., concurring in judgment), but not
necessarily relevant when dangerousness
is primarily at issue. We cannot tell
whethetl,w6the 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 t he
defendant's committing future crimes,
moderate-though they do not eliminate-the importance of the governmental interest in prosecution. See supra, at 2184.

v
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.
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,

2188

123 SUPREME COURT REPORTER

539

u.s.

186

see § 1292, the Court of A~als 187 pro- of the Attorney General, and petitioner
ceeded to the merits of Sell's interlocutory was hospitalized to determine whether
appeal. 282 F.3d 560 (C.A.8 2002). Per- there was a substantial probability that in
haps this failure to discuss jurisdiction was the foreseeable future he would attain the
attributable to the United States' refusal capacity to stand trial. On June 9, 1999, a
to contest the point there (as it has refused reviewing psychiatrist determined, after a
here, see Brief for United States 10, n. 5), § 549.43 administrative hearing 1, that pear to the panel's unexpressed agreement titioner should be required to take
with the conclusion reached . by other ~ 8 antipsychotic medication, finding the
Courts of Appeals, that pretnal forced- medication necessary to render petitioner
medication orders are appealable under competent for trial and medically approprithe "collateral order doctrine," see, e.g., ate to treat his mental illness. Petitioner's
United States v. Morgan, 193 F.3d 252, administrative appeal from that decision z
258-259 (C.A.4 1999); United States v. was denied with a written statement of
Brandon, 158 F.3d 947, 950-951 (C.A.6 reasons.
1998). But this Court's cases do not auAt that point the Government possessed
thorize appeal from the District Court's
the requisite authority to administer
April 4, 2001, order, which was neither a
"final decision" under § 1291 nor part of forced medication. Petitioner responded,
t he class of specified interlocutory orders not by appealing to the courts the § 549.43
in § 1292. We therefore lack jurisdiction, administrative determination, see 5 U.S.C.
and I would vacate the Court of Appeals' § 702, but by moving in the District Court
decision and remand with instructions to overseeing his criminal prosecution for a
hearing regarding the appropriateness of
dismiss.
his medication.
A Magistrate Judge
I
granted the motion and held a hearing.
After petitioner's indictment, a Magis- The Government then requested from the
trate Judge found that petitioner was in- Magistrate Judge an order authorizing the
competent to stand trial because he was involuntary medication of petitioner, which
unable to understand the nature and con- the Magistrate Judge entered.3 On April
sequences of the proceedings against him 4, 2001, the District Court affirmed this
and to assist in his defense. As required Magistrate Judge's order, and it is from
by 18 U.S.C. § 4241(d), the Magistrate this order that petitioner appealed to the
Judge committed petitioner to the custody Eighth Circuit.
I.

Title 28 CPR § 549.43 (2002) provides the
standards and procedures used to determine
whether a person in the custody of the Allor·
ney General may be involuntarily medicated.
Before that can be done, a reviewing psychia·
trist must determine that it is "necessary in
order to attempt to make the inmate compe·
tent for trial or is necessary because the inmale is dangerous lo 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)(S) .

2.

Section 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 revie w
the decision wit hin 24 hours of the inmate 's
appeal."

3.

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' administrati ve decision ordering petitioner's forc ible medicalion 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 Sree/ Co. v. Cirizens for Beuer
Environment, 523 U.S. 83, I 18 S.Ct. 1003,
140 L.Ed .2d 210 (1998). The Court of Appeals should address this jurisdiction al issue
on remand.

539

u.s.

SELL v. U.S.

190

Clteasl 23 S.Ct. 2174 (2003)

II
A
Petitioner and the United States maintain that 28 U.S.C. § 1291, which permits
the courts of appeals to review "a~Jinal
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, 104 S.Ct. 1051,
79 L.Ed.2d 288 (1984), which "[i]n a criminal case ... prohibits appellate review un-

til conviction and imposition of sentence,"
ibid. (emphasis added). See also Abney v.
United States, 431 U.S. 651, 656-657, 97
S.Ct. 2034, 52 L.Ed.2d 651 (1977). We
have invented 4 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, 98
S.Ct. 2454, 57 L.Ed.2d 351 (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, 112 S.Ct. 1810, 118 L.Ed.2d 479
(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
murdeT conv·iction, that the State of Nevada had contravened the substantive-dueprocess standards set forth in Washington
v. Harper, 494 U.S. 210, 110 S.Ct. 1028,
4.

I use the term "invented" advisedly.
statutory text provides no basis.

The

5.

To be sure, the order here is unreviewable
after final judgment if 1he de[endar11 is acquilled. But the "unreviewability" leg of our
collateral-order doctrine-which, as it is
framed , requires that the interlocutory order

2189

108 L.Ed.2d 178 (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, 112 S.Ct.
1810. The Court is therefore wrong to say
that "[a]n ordinary appeal comes too late
for a defendant to enforce" this right, ante,
at 2183, and appellate review of any substantive-due-process challenge to the District Court'~oApril 4, 2001, order must
wait until after conviction and sentence
have been imposed. 5
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, 102 S.Ct. 3081,
73 L.Ed.2d 754 (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, 77
S.Ct. 1332, 1 L.Ed.2d 1442 (1957) (disallov.ring 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, 109 S.Ct. 1494, 103
L.Ed.2d 879 (1989) (emphasis added). In
be "effectively unreviewable on appeal from a
final judgmenl," Coopers & Lybr-and v . Livesay,
437 U.S. 463, 468, 98 S.Ct. 2454, 57 LEd .2d
351 (1978) (emphasis added)- is not satisfied
by the possibility that the aggrieved party will
have no occasion to appeal.

2190

123 SUPREME COURT REPORTER

the 54 years since we invented the exception, see Cohen v. Beneficial Industrial
Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93
L.Ed. 1528 (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,
72 S.Ct. 1, 96 L.Ed. 3 (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, 99 S.Ct. 2445, 61 L.Ed.2d 30 (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 appe~ 1 from
conviction. See Flanagan, supra, at 266,
104 S.Ct. 1051. 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 preeise right asserted was the right not to be
tried. See Abney, supra, at 660-661, 97
S.Ct. 2034; Helstoski, supra, at 507-508,
99 S.Ct. 2445. Petitioner does not assert a
right not to be tried, but a right not to be
medicated.
B
Today's narrow holding vvi.ll allow criminal defendants in petitioner's position to
engage in opportunistic behavior. They
can, for example, voluntarily take their
medication until halfway throug·h 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., supm, at 799, 109 S.Ct.
1494; Flanagan, 465 U.S., at 264, 104
S.Ct. 1051.
But the adverse effects of today's narrow holding ar e as nothing compared to

539

u.s.

190

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 medicationthe very harm that he seeks to avoid."
Ante, at 2182. 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 trialcourt order requiring the ~ndantl!J 2 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 of 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
collateral-order 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 follovving 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

539

u.s.

2191

VIRGINIA v. HICKS

113

Cite as !Z3 S.Ct. ll91 (l003)

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 2182. 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
rev·iewable on appeal. The Court's lastminute addition must mean that it is revising the Cohen test, to dispense with the
third requirement (unreviewable on appeal) only when the important sepamte
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
stillli~would not favor the revision, not
only because it is a novelty >vith no basis in
our prior opinions, but also because of the
uncertainty, and the obvious opportunity
for gamesmanship, that the revision-asnarrowed 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 B·ivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999,
29 L.Ed.2d 619 (1971), action, which is
available to federal pretrial detainees challenging the conditions of their confinement, see, e.g., Lyons v. United States
Marshals, 840 F.2d 202 (C.A.3 1988). In
such a suit, he could have obtained immediate appellate review of denial of relief. 6
6.

Petitioner points out that there are disadvantages to such an approach- for example,
lack of constitutional entitlement to appointed

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.

539 U.S. 113, 156 L.Ed.2d 148

VIRGINIA, Petitioner,
v.

Kevin Lamont HICKS.

No. 02-371.
Argued April 30, 2003.
Decided June 16, 2003.
Defendant was convicted after trial de
novo in the Circuit Court, City of Richmond, Thomas N. Nance, J., of trespassing
on premises of low-income housing development o>vned and operated by Richmond
Redevelopment and Housing Authority
(RRHA), based on his violation of written
notice baiTing his return to RRHA property due to prior trespass convictions. Defendant appealed. Panel of the Virginia Court
of Appeals, 33 Va.App. 561, 535 S.E .2d 678,
affirmed. On rehearing en bane, the Court
of Appeals, 36 Va.App. 49, 548 S.E.2d 249,
vacated conviction. Commonwealth appealed. The Supreme Court of Virginia, 264
Va. 48, 563 S.E.Zd 674, Leroy R. Hassell,
counsel in a Bivens action. That does not
entitle him or us to disregard the limits on
appellate jurisdiction.

Files

Collection

Citation

Dorie Klein, “CLE: 2007: Involuntary Medication of Criminal Defendants,” St. Mary's Law Digital Repository, accessed May 25, 2017, http://lawspace.stmarytx.edu/item/STMU_HomecomingCLE2007Klein.

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