SELL V. UNITED STATES (02-5664) 539 U.S. 166 (2003)
282 F.3d 560, vacated and remanded.
[ Breyer ]
[ Scalia ]
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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.


No. 02—5664



[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 present proceedings.


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., at 144.

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 anti-psychotic medication.” Id., at 157.

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 anti-psychotic 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 anti-psychotic 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 “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). 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 non-violent 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 rights.


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 confinement.” Ibid.

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., at 236.

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 trial-related interests.

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 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. 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 contrary.

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.