SELL v. UNITED STATES

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166 OCTOBER TERM, 2002
Syllabus
SELL v. UNITED STATES
certiorari to the united states court of appeals for
the eighth circuit
No. 02–5664. Argued March 3, 2003—Decided June 16, 2003
A Federal Magistrate Judge (Magistrate) initially found petitioner Sell,
who has a long history of mental illness, competent to stand trial for
fraud and released him on bail, but later revoked bail because Sell’s
condition had worsened. Sell subsequently asked the Magistrate to re-
consider his competence to stand trial for fraud and attempted murder.
The Magistrate had him examined at a United States Medical Center
for Federal Prisoners (Medical Center), found him mentally incompetent
to stand trial, and ordered his hospitalization to determine whether he
would attain the capacity to allow his trial to proceed. While there,
Sell refused the staff ’s recommendation to take antipsychotic medica-
tion. Medical Center authorities decided to allow involuntary medica-
tion, which Sell challenged in court. The Magistrate authorized forced
administration of antipsychotic drugs, finding that Sell was a danger to
himself and others, that medication was the only way to render him less
dangerous, that any serious side effects could be ameliorated, that the
benefits to Sell outweighed the risks, and that the drugs were substan-
tially 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 Govern-
ment’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 Dis-
trict Court’s pretrial order was an appealable “collateral order” within
the exceptions to the rule that only final judgments are appealable.
The order conclusively determines the disputed question whether Sell
has a legal right to avoid forced medication. Coopers & Lybrand v.
Livesay, 437 U. S. 463, 468. It also resolves an important issue, for
involuntary medical treatment raises questions of clear constitutional
importance. Ibid. And the issue is effectively unreviewable on appeal

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from a final judgment, ibid., since, by the time of trial, Sell will have
undergone forced medication—the very harm that he seeks to avoid and
which cannot be undone by an acquittal. Pp. 175–177.
2. Under the framework of Washington v. Harper, 494 U. S. 210, and
Riggins v. Nevada, 504 U. S. 127, the Constitution permits the Govern-
ment involuntarily to administer antipsychotic drugs to render a men-
tally 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 fur-
ther important governmental trial-related interests. Pp. 177–183.
(a) This standard will permit forced medication solely for trial com-
petence 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 sig-
nificantly 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 inter-
fere significantly with the defendant’s ability to assist counsel in con-
ducting a defense. Third, the court must conclude that involuntary
medication is necessary to further those interests and find that alterna-
tive, less intrusive treatments are unlikely to achieve substantially the
same results. Fourth, the court must conclude that administering the
drugs is medically appropriate. Pp. 177–181.
(b) The court applying these standards is trying to determine
whether forced medication is necessary to further the Government’s in-
terest in rendering the defendant competent to stand trial. If a court
authorizes medication on an alternative ground, such as dangerousness,
the need to consider authorization on trial competence grounds will
likely disappear. There are often strong reasons for a court to consider
alternative grounds first. For one thing, the inquiry into whether med-
ication is permissible to render an individual nondangerous is usually
more objective and manageable than the inquiry into whether medica-
tion is permissible to render a defendant competent. For another,

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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 deci-
sionmaking in respect to a request to administer drugs for trial compe-
tence purposes. Pp. 181–183.
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 erro-
neous, this Court assumes that Sell was not dangerous. And on that
hypothetical assumption, the Eighth Circuit erred in reaching its conclu-
sion. For one thing, the Magistrate did not find forced medication
legally justified on trial competence grounds alone. Moreover, the ex-
perts 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 rel-
evant 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 defend-
ant may receive credit toward a sentence for time served and the second
because it reduces the likelihood of the defendant’s committing future
crimes, moderate the importance of the governmental interest in prose-
cution. 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. 183–186.
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. 186.
Barry A. Short, by appointment of the Court, 537 U. S.
1087, argued the cause for petitioner. With him on the
briefs were Neal F. Perryman, Mark N. Light, Norman S.
London, and Lee T. Lawless.
Deputy Solicitor General Dreeben argued the cause for
the United States. With him on the briefs were Solicitor

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General Olson, Assistant Attorney General Chertoff, Lisa
Schiavo Blatt, and Joseph C. Wyderko.*
Justice Breyer delivered the opinion of the Court.
The question presented is whether the Constitution per-
mits the Government to administer antipsychotic drugs in-
voluntarily 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. Be-
cause the Court of Appeals did not find 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 Septem-
ber 1982, after telling doctors that the gold he used for
fillings had been contaminated by communists, Sell was hos-
pitalized, treated with antipsychotic medication, and subse-
quently 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;
Record, Forensic Report, p. 1 (June 20, 1997) (Sealed). Sell
*Briefs of amici curiae urging reversal were filed for the American
Civil Liberties Union of Eastern Missouri by Peter A. Joy; for the Center
for Cognitive Liberty & Ethics by Richard Glen Boire; for the Drug Pol-
icy Alliance by David T. Goldberg and Daniel N. Abrahamson; for the
National Association of Criminal Defense Lawyers by Burton H. Shostak;
for the New York State Association of Criminal Defense Lawyers by
Joshua L. Dratel; and for the Rutherford Institute by John W. Whitehead
and Steven H. Aden.
Briefs of amici curiae were filed for the American Psychological Associ-
ation by David W. Ogden, Paul R. Q. Wolfson, and Nathalie F. P. Gilfoyle;
and for the American Psychiatric Association et al. by Richard G. Taranto.

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was again hospitalized and subsequently released. On vari-
ous occasions, he complained that public officials, for exam-
ple, a State Governor and a police chief, were trying to kill
him. Id., at 4. In April 1997, he told law enforcement per-
sonnel 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 submit-
ting 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 “cur-
rently competent,” but noted that Sell might experience
“a psychotic episode” in the future. App. 321. The Magis-
trate 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 be-
cause 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 tes-
tify against him in the fraud case. Id., at 23–29. The at-
tempted 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

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United States Medical Center for Federal Prisoners (Medical
Center) at Springfield, Missouri, for examination. Subse-
quently the Magistrate found that Sell was “mentally incom-
petent 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.
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 in-
stitutional authorities to administer antipsychotic drugs to
Sell involuntarily. A reviewing psychiatrist held a hearing
and considered Sell’s prior history; Sell’s current persecu-
tional 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 medi-
cal 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 con-
cerns (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 ex-
pert’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 “men-

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tally ill and dangerous, and medication is necessary to treat
the mental illness,” and (2) so that Sell would “become com-
petent 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 pre-
sented at the initial hearing, referred to Sell’s delusions,
noted differences of professional opinion as to proper classi-
fication 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 “per-
vasive 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 offi-
cial “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 antipsy-
chotic 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 repli-
cated 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 inci-
dent 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, sug-

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gested 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 Cen-
ter doctors testified that, given Sell’s prior behavior, diagno-
sis, and current beliefs, boundary-breaching incidents of this
sort were not harmless and, when coupled with Sell’s inabil-
ity 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 govern-
ment 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 chang-
ing 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 Mag-
istrate 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 is-
sued 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 adminis-
tration 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”

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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 de-
fendant competent to stand trial,” and that “administration
of such drugs appears necessary to serve the government’s
compelling interest in obtaining an adjudication of defend-
ant’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 Ap-
peals affirmed the District Court’s judgment. 282 F. 3d 560
(CA8). The majority affirmed the District Court’s determi-
nation 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 fa-
miliarity and even infatuation’ with a nurse.” Id., at 565.
The Court of Appeals agreed, “[u]pon review,” that “the evi-
dence 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 re-
viewing the conflicting views of the experts, id., at 568–571,
the panel majority found antipsychotic drug treatment “med-

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ically appropriate” for Sell, id., at 571. It added that the
“medical evidence presented indicated a reasonable probabil-
ity 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 “allow-
ing 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.
II
We first examine whether the Eighth Circuit had jurisdic-
tion 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 in-
voluntarily 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 administra-
tive 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 seek-
ing 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 de-
nial of defendant’s motion to discontinue medication); Stack
v. Boyle, 342 U. S. 1, 6–7 (1951) (district court’s denial of de-
fendant’s motion to reduce bail is part of criminal proceeding
and is not reviewable in separate habeas action).

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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, author-
izes 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 ques-
tion,” namely, whether Sell has a legal right to avoid forced
medication. Ibid. The order also (2) “resolve[s] an impor-
tant issue,” for, as this Court’s cases make clear, involuntary
medical treatment raises questions of clear constitutional im-
portance. 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; Cru-
zan 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 un-
dergo 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 judg-
ment.” Ibid. By the time of trial Sell will have undergone

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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 se-
verity 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 191–192
(opinion of Scalia, J.).
We add that the question presented here, whether Sell has
a legal right to avoid forced medication, perhaps in part be-
cause 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 administra-
tion of the drugs. What may happen at trial is relevant, but
only as a prediction. See infra, at 181. The second ques-
tion 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 conse-
quently have jurisdiction to decide the question presented,
whether involuntary medication violates Sell’s constitu-
tional rights.
III
We turn now to the basic question presented: Does forced
administration of antipsychotic drugs to render Sell compe-
tent to stand trial unconstitutionally deprive him of his “lib-
erty” to reject medical treatment? U. S. Const., Amdt. 5
(Federal Government may not “depriv[e]” any person of “lib-
erty . . . without due process of law”). Two prior prece-

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dents, Harper, supra, and Riggins v. Nevada, 504 U. S. 127
(1992), 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 in-
mates 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 men-
tally 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 “or-
dered” medication only because that was “in the prisoner’s
medical interests, given the legitimate needs of his institu-
tional 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 involun-
tary 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 treat-
ment 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 invol-
untary administration of antipsychotic drugs”—an interest

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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 de-
fendant competent to stand trial for murder was constitu-
tionally 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. (em-
phasis 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, concur-
ring in the judgment, emphasized that antipsychotic drugs
might have side effects that would interfere with the de-
fendant’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 ad-
minister antipsychotic drugs to a mentally ill defendant fac-
ing serious criminal charges in order to render that defend-
ant 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 sig-
nificantly to further important governmental trial-related
interests.

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180 SELL v. UNITED STATES
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This standard will permit involuntary administration of
drugs solely for trial competence purposes in certain in-
stances. 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 in-
terests 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 in-
stances 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 in-
terest. 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 ordi-
narily 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 under-
mine, 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 con-
comitant, constitutionally essential interest in assuring that
the defendant’s trial is a fair one.

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181 Cite as: 539 U. S. 166 (2003)
Opinion of the Court
Second, the court must conclude that involuntary medica-
tion will significantly further those concomitant state inter-
ests. It must find that administration of the drugs is sub-
stantially 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 as-
sist counsel in conducting a trial defense, thereby rendering
the trial unfair. See Riggins, 504 U. S., at 142–145 (Ken-
nedy, J., concurring in judgment).
Third, the court must conclude that involuntary medica-
tion is necessary to further those interests. The court must
find that any alternative, less intrusive treatments are un-
likely to achieve substantially the same results. Cf. Brief
for American Psychological Association as Amicus Curiae
10–14 (nondrug therapies may be effective in restoring psy-
chotic defendants to competence); but cf. Brief for American
Psychiatric Association et al. as Amici Curiae 13–22 (alter-
native 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 ad-
ministration 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 gov-
ernmental interest, namely, the interest in rendering the de-
fendant competent to stand trial. A court need not consider
whether to allow forced medication for that kind of purpose,

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182 SELL v. UNITED STATES
Opinion of the Court
if forced medication is warranted for a different purpose,
such as the purposes set out in Harper related to the individ-
ual’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 ad-
ministration 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 per-
missible, 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, supra, at 140 (Kennedy, J., concur-
ring 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 appro-
priate and necessary to control a patient’s potentially dan-
gerous behavior (or to avoid serious harm to the patient him-
self) 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 inter-
ests 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 (West 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.

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Opinion of the Court
If a court authorizes medication on these alternative
grounds, the need to consider authorization on trial compe-
tence 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 forc-
ibly 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 de-
fense 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 ordi-
narily 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 180–181,
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 appro-
priateness of a particular course of antipsychotic drug treat-
ment, 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.
IV
The Medical Center and the Magistrate in this case, apply-
ing 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 oth-

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184 SELL v. UNITED STATES
Opinion of the Court
ers. But the District Court and the Eighth Circuit took a
different approach. The District Court found “clearly erro-
neous” 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 re-
flected an improvement in Sell’s condition or whether the
Medical Center saw it as permanent rather than temporary.
Cf. Harper, supra, at 227, and n. 10 (indicating that physical

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185 Cite as: 539 U. S. 166 (2003)
Opinion of the Court
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 com-
petence 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 medi-
cations 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, pre-
vent rapid reaction to trial developments, or diminish the
ability to express emotions are matters important in deter-
mining the permissibility of medication to restore com-
petence, Riggins, 504 U. S., at 142–145 (Kennedy, J., con-
curring in judgment), but not necessarily relevant when
dangerousness is primarily at issue. We cannot tell whether

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186 SELL v. UNITED STATES
Scalia, J., dissenting
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 al-
ready 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 to-
ward 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 180.
V
For these reasons, we believe that the present orders au-
thorizing forced administration of antipsychotic drugs cannot
stand. The Government may pursue its request for forced
medication on the grounds discussed in this opinion, includ-
ing 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 cur-
rent 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 Jus-
tice Thomas join, dissenting.
The District Court never entered a final judgment in this
case, which should have led the Court of Appeals to wonder
whether it had any business entertaining petitioner’s appeal.
Instead, without so much as acknowledging that Congress
has limited court-of-appeals jurisdiction to “appeals from all
final decisions of the district courts of the United States,”
28 U. S. C. § 1291 (emphasis added), and appeals from certain
specified interlocutory orders, see § 1292, the Court of Ap-

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187 Cite as: 539 U. S. 166 (2003)
Scalia, J., dissenting
peals proceeded to the merits of Sell’s interlocutory appeal.
282 F. 3d 560 (CA8 2002). Perhaps this failure to discuss
jurisdiction was attributable to the United States’ refusal to
contest the point there (as it has refused here, see Brief for
United States 10, n. 5), or to the panel’s unexpressed agree-
ment with the conclusion reached by other Courts of Ap-
peals, that pretrial forced-medication orders are appealable
under the “collateral order doctrine,” see, e. g., United States
v. Morgan, 193 F. 3d 252, 258–259 (CA4 1999); United States
v. Brandon, 158 F. 3d 947, 950–951 (CA6 1998). But this
Court’s cases do not authorize appeal from the District
Court’s April 4, 2001, order, which was neither a “final deci-
sion” under § 1291 nor part of the class of specified interlocu-
tory orders in § 1292. We therefore lack jurisdiction, and I
would vacate the Court of Appeals’ decision and remand with
instructions to dismiss.
I
After petitioner’s indictment, a Magistrate Judge found
that petitioner was incompetent to stand trial because he
was unable to understand the nature and consequences of
the proceedings against him and to assist in his defense. As
required by 18 U. S. C. § 4241(d), the Magistrate Judge com-
mitted petitioner to the custody of the Attorney General, and
petitioner was hospitalized to determine whether there was
a substantial probability that in the foreseeable future he
would attain the capacity to stand trial. On June 9, 1999, a
reviewing psychiatrist determined, after a § 549.43 adminis-
trative hearing,1 that petitioner should be required to take
1 Title 28 CFR § 549.43 (2002) provides the standards and procedures
used to determine whether a person in the custody of the Attorney Gen-
eral may be involuntarily medicated. Before that can be done, a review-
ing psychiatrist must determine that it is “necessary in order to attempt
to make the inmate competent for trial or is necessary because the inmate
is dangerous to self or others, is gravely disabled, or is unable to function
in the open population of a mental health referral center or a regular
prison,” § 549.43(a)(5).

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188 SELL v. UNITED STATES
Scalia, J., dissenting
antipsychotic medication, finding the medication necessary to
render petitioner competent for trial and medically appro-
priate to treat his mental illness. Petitioner’s administra-
tive appeal from that decision 2 was denied with a written
statement of reasons.
At that point the Government possessed the requisite
authority to administer forced medication. Petitioner re-
sponded, not by appealing to the courts the § 549.43 admin-
istrative determination, see 5 U. S. C. § 702, but by moving
in the District Court overseeing his criminal prosecution for
a hearing regarding the appropriateness of his medication.
A Magistrate Judge granted the motion and held a hearing.
The Government then requested from the Magistrate Judge
an order authorizing the involuntary medication of peti-
tioner, which the Magistrate Judge entered.3 On April 4,
2001, the District Court affirmed this Magistrate Judge’s
order, and it is from this order that petitioner appealed to
the Eighth Circuit.
II
A
Petitioner and the United States maintain that 28 U. S. C.
§ 1291, which permits the courts of appeals to review “all
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 review the
decision within 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’ administrative decision ordering petitioner’s forcible medica-
tion 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, peti-
tioner failed to meet the “remediability” requirement of Article III stand-
ing. See Steel Co. v. Citizens for Better Environment, 523 U. S. 83 (1998).
The Court of Appeals should address this jurisdictional issue on remand.

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189 Cite as: 539 U. S. 166 (2003)
Scalia, J., dissenting
final decisions of the district courts of the United States”
(emphasis added), allowed the Court of Appeals to review
the District Court’s April 4, 2001, order. We have described
§ 1291, however, as a “final judgment rule,” Flanagan v.
United States, 465 U. S. 259, 263 (1984), which “[i]n a criminal
case . . . prohibits appellate review until conviction and
imposition of sentence,” ibid. (emphasis added). See also
Abney v. United States, 431 U. S. 651, 656–657 (1977). We
have invented 4 a narrow exception to this statutory com-
mand: the so-called “collateral order” doctrine, which per-
mits appeal of district court orders that (1) “conclusively de-
termine 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 judg-
ment.” Coopers & Lybrand v. Livesay, 437 U. S. 463, 468
(1978). But the District Court’s April 4, 2001, order fails to
satisfy the third requirement of this test.
Our decision in Riggins v. Nevada, 504 U. S. 127 (1992),
demonstrates that the District Court’s April 4, 2001, order
is reviewable on appeal from conviction and sentence. The
defendant in Riggins had been involuntarily medicated while
a pretrial detainee, and he argued, on appeal from his mur-
der conviction, that the State of Nevada had contravened
the substantive-due-process standards set forth in Washing-
ton v. Harper, 494 U. S. 210 (1990). Rather than holding
that review of this claim was not possible on appeal from a
criminal conviction, the Riggins Court held that forced medi-
cation of a criminal defendant that fails to comply with
Harper creates an unacceptable risk of trial error and enti-
tles the defendant to automatic vacatur of his conviction.
504 U. S., at 135–138. The Court is therefore wrong to say
that “[a]n ordinary appeal comes too late for a defendant to
enforce” this right, ante, at 177, and appellate review of any
substantive-due-process challenge to the District Court’s
4 I use the term “invented” advisedly. The statutory text provides no
basis.

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190 SELL v. UNITED STATES
Scalia, J., dissenting
April 4, 2001, order must wait until after conviction and sen-
tence 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 postdep-
rivation vacatur of conviction provided by Riggins. But
that ground for interlocutory appeal is emphatically rejected
by our cases. See, e. g., Flanagan, supra (disallowing inter-
locutory appeal of an order disqualifying defense counsel);
United States v. Hollywood Motor Car Co., 458 U. S. 263
(1982) (per curiam) (disallowing interlocutory appeal of an
order denying motion to dismiss indictment on grounds of
prosecutorial vindictiveness); Carroll v. United States, 354
U. S. 394 (1957) (disallowing interlocutory appeal of an order
denying motion to suppress evidence).
We have until today interpreted the collateral-order ex-
ception to § 1291 “ ‘with the utmost strictness’ ” in criminal
cases. Midland Asphalt Corp. v. United States, 489 U. S.
794, 799 (1989) (emphasis added). In the 54 years since we
invented the exception, see Cohen v. Beneficial Industrial
Loan Corp., 337 U. S. 541 (1949), we have found only three
types of prejudgment orders in criminal cases appealable:
denials of motions to reduce bail, Stack v. Boyle, 342 U. S. 1
(1951), denials of motions to dismiss on double-jeopardy
grounds, Abney, supra, and denials of motions to dismiss
under the Speech or Debate Clause, Helstoski v. Meanor, 442
U. S. 500 (1979). The first of these exceptions was justified
on the ground that the denial of a motion to reduce bail be-
comes moot (and thus effectively unreviewable) on appeal
5 To be sure, the order here is unreviewable after final judgment if the
defendant is acquitted. But the “unreviewability” leg of our collateral-
order doctrine—which, as it is framed, requires that the interlocutory
order be “effectively unreviewable on appeal from a final judgment,”
Coopers & Lybrand v. Livesay, 437 U. S. 463, 468 (1978) (emphasis
added)—is not satisfied by the possibility that the aggrieved party will
have no occasion to appeal.

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Scalia, J., dissenting
from conviction. See Flanagan, supra, at 266. As Riggins
demonstrates, that is not the case here. The interlocutory
appeals in Abney and Helstoski were justified on the ground
that it was appropriate to interrupt the trial when the pre-
cise right asserted was the right not to be tried. See Abney,
supra, at 660–661; Helstoski, supra, at 507–508. Petitioner
does not assert a right not to be tried, but a right not to
be medicated.
B
Today’s narrow holding will allow criminal defendants in
petitioner’s position to engage in opportunistic behavior.
They can, for example, voluntarily take their medication
until halfway through trial, then abruptly refuse and demand
an interlocutory appeal from the order that medication con-
tinue on a compulsory basis. This sort of concern for the
disruption of criminal proceedings—strangely missing from
the Court’s discussion today—is what has led us to state
many times that we interpret the collateral-order exception
narrowly in criminal cases. See Midland Asphalt Corp.,
supra, at 799; Flanagan, 465 U. S., at 264.
But the adverse effects of today’s narrow holding are as
nothing compared to the adverse effects of the new rule of
law that underlies the holding. The Court’s opinion an-
nounces that appellate jurisdiction is proper because review
after conviction and sentence will come only after “Sell will
have undergone forced medication—the very harm that he
seeks to avoid.” Ante, at 176–177. This analysis effects a
breathtaking expansion of appellate jurisdiction over inter-
locutory orders. If it is applied faithfully (and some appel-
late panels will be eager to apply it faithfully), any criminal
defendant who asserts that a trial court order will, if imple-
mented, cause an immediate violation of his constitutional
(or perhaps even statutory?) rights may immediately appeal.
He is empowered to hold up the trial for months by claiming
that review after final judgment “would come too late” to
prevent the violation. A trial-court order requiring the de-

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192 SELL v. UNITED STATES
Scalia, J., dissenting
fendant 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 gener-
ously widened.
The Court dismisses these concerns in a single sentence
immediately following its assertion that the order here
meets the three Cohen-exception requirements of (1) con-
clusively determining the disputed question (correct); (2) re-
solving an important issue separate from the merits of the
action (correct); and (3) being unreviewable on appeal (quite
plainly incorrect). That sentence reads as follows: “These
considerations, particularly those involving the severity of
the intrusion and corresponding importance of the constitu-
tional issue, readily distinguish Sell’s case from the examples
raised by the dissent.” Ante, at 177. That is a brand new
consideration put forward in rebuttal, not at all discussed in
the body of the Court’s analysis, which relies on the ground
that (contrary to my contention) this order is not reviewable
on appeal. The Court’s last-minute addition must mean
that it is revising the Cohen test, to dispense with the third
requirement (unreviewable on appeal) only when the impor-
tant separate issue in question involves a “severe intrusion”
and hence an “important constitutional issue.” Of course
I welcome this narrowing of a misguided revision—but I still

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193 Cite as: 539 U. S. 166 (2003)
Scalia, J., dissenting
would not favor the revision, not only because it is a novelty
with no basis in our prior opinions, but also because of the
uncertainty, and the obvious opportunity for gamesmanship,
that the revision-as-narrowed produces. If, however, I did
make this more limited addition to the textually unsupported
Cohen doctrine, I would at least do so in an undisguised
fashion.
* * *
Petitioner could have obtained pre-trial review of the
§ 549.43 medication order by filing suit under the Administra-
tive Procedure Act, 5 U. S. C. § 551 et seq., or even by filing
a Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S.
388 (1971), action, which is available to federal pretrial de-
tainees challenging the conditions of their confinement, see,
e. g., Lyons v. United States Marshals, 840 F. 2d 202 (CA3
1987). In such a suit, he could have obtained immediate ap-
pellate review of denial of relief.6 But if he chooses to chal-
lenge his forced medication in the context of a criminal trial,
he must abide by the limitations attached to such a chal-
lenge—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.
6 Petitioner points out that there are disadvantages to such an ap-
proach—for example, lack of constitutional entitlement to appointed coun-
sel in a Bivens action. That does not entitle him or us to disregard the
limits on appellate jurisdiction.