Competency to Waive Appeals

Appellate review of a felony conviction is a constitutional right. The validity of a relinquishment of this or any other constitutional right rests on whether the waiver is made knowingly, intelligently, and voluntarily. There are two distinct arenas where waivers of appeals are encountered: plea bargains in criminal cases and death-sentenced inmates “volunteering” for execution. Though waivers of appellate review in plea bargains are legally complex, they are not philosophically, ethically, or forensically problematic. This is largely because the defendant makes an election that, viewed from both subjective and external perspectives, is in his self-interest. A waiver of appellate review by a death-sentenced inmate, however, is fraught with philosophical and ethical dilemmas, as well as forensic evaluation ambiguities. This situation is compounded because the U.S. Supreme Court has not articulated clear standards or procedures for evaluation of the competency of death-sentenced inmates to waive appellate review. Accordingly, forensic evaluations of this issue by mental health professionals are at best comprehensive and highly descriptive in nature.

Waiver of Appeals in Plea Bargains

Depending on the jurisdiction, a waiver of the right to appellate review may be required of a defendant as a condition for a plea bargain. A waiver under these circumstances can be viewed as analogous to the defendant entering into a contract that is perceived to be most beneficial (or least onerous) to the defendant, as well as contributing to a more efficient administration of justice. Critics, however, note that a waiver of appeals as a precondition for securing a plea bargain is inherently coercive. Furthermore, such a waiver is invariably unknowing, as at the time of the waiver, the defendant may not yet have been sentenced or may not recognize limitations in the effectiveness of counsel, sentencing in excess of the statutory maximum, racially based sentencing, and so forth.

Though these opposing considerations result in a complex legal analysis, waivers of appeals in a plea bargain are not forensically, philosophically, or ethically problematic. Forensic evaluations of the competency to make such a waiver are routinely subsumed within the broader consideration of competency to stand trial. There is little philosophical tension, as the defendant making this election is typically acting in rational self-interest—that is, to secure a less severe sentence. Furthermore, this plea bargain and the associated waiver of appeals are usually accomplished with the advice, participation, and assistance of defense counsel, whose role of facilitating the most advantageous outcome for the defendant is ethically straightforward.

Complexities in Waiver of Appeals among Death-Sentenced Inmates

Waivers of appellate review among death-sentenced inmates are notably different from those routinely encountered at plea bargaining. Whereas the defendant in a plea bargain may quite rationally waive appeals as part of obtaining a more favorable sentence, such a waiver by a death-sentenced inmate represents an acceleration of the arguably more onerous punishment of execution. This volunteering, as it were, for death cuts against basic expectations of self-preservation and, accordingly, immediately raises questions regarding the rationality and motivations of such a determination. Equally problematic, the volunteering death-sentenced inmate is at cross-purposes with appellate counsel, who are likely to regard that they are ethically bound to delay or seek relief from the death sentence. Not uncommonly, the desire of the death-sentenced volunteer to accelerate execution is not shared by his or her family, who may seek standing to intervene as a “next friend” and continue with the appellate review.

A decision by a death-sentenced inmate to functionally accelerate execution by forgoing appeals creates significant tension between competing rights and imperatives. On the one hand, competent adults (including death-sentenced inmates) are accorded some self-determination regarding their own mortality. For example, an individual can elect to forgo or discontinue medically indicated treatment even if death is the predictable result but is barred from committing suicide or seeking physician-assisted death. There is an analogous conundrum of determining where a rational determination that solitary confinement awaiting an inevitable death is more onerous than death stops and state-assisted suicide begins.

Counterbalancing the right to self-determination among death-sentenced inmates, Justice John Marshall expressed in his dissenting opinion in Whitmore v. Arkansas (1990) that society has an interest in preserving the integrity of the criminal justice system and safeguarding the reliability of the application of capital punishment. Meaningful appellate review was made central to the reliable administration of the death penalty in Gregg v. Georgia (1976). How is the death penalty as a legitimate sanction preserved if a death-sentenced inmate who is innocent or who has been sentenced in a constitutionally flawed trial is allowed to “volunteer” in order to escape the travails of confinement?

Finally, there is tension between the complexity of appellate review and the limited literacy and legal sophistication of most capital offenders. Both direct appeals and postconviction review are extended, complicated, and tortured processes. Capital offenders may have difficulty in fully comprehending the associated legal issues or realistically evaluating their potential for success, rendering the “knowing and intelligent” condition illusory. Similarly, the concrete and rigid thinking associated with limited intelligence or neuropsychological deficits may interfere with effective problem solving and a realistic appraisal of available options, even while making “logical” arguments.

The “voluntary” factor is also a complex consideration among death-sentenced inmates who seek to waive their appeals. This complexity is a function of both internal and external experience. A history of family dysfunction, substance dependence, and neuropsychological insults and findings as well as limited intelligence and literacy deficits are common among death-sentenced inmates. Such a background would be expected to reduce resilience. Not surprisingly, rates of depression and other psychological disorders among death-sentenced inmates are relatively high. Furthermore, the chronic stress of being under a sentence of death is not insignificant. These psychological experiences leave logic intact but significantly intrude on the death-sentenced inmate’s “free will.”

These internal reactions may be aggravated by the arduous conditions of confinement on death row. Quite simply, many death-sentenced inmates who seek to end their appeals do so because they find the conditions on death row to be intolerable. This is not a surprising reaction. In most jurisdictions in the United States, death-sentenced inmates are held in solitary confinement in cramped cells, in death-segregated units, with severe restriction of activities or interaction with others. These conditions have been identified as both psycho-logically destabilizing and inherently coercive. The coercive implications of death row confinement in waivers of appeal have gained additional salience from research by Cunningham and colleagues demonstrating that death-sentenced inmates who were mainstreamed in the Missouri Department of Corrections with non-death-sentenced inmates were not a disproportionate source of violence. The combined effects of premorbid psychological vulnerability, depression, chronic stress, and extraordinarily restrictive confinement have been identified by international courts (e.g., Soering v. United Kingdom, 1989) as giving rise to “death row syndrome,” a legal rather than psychological classification intended to reflect the coercive totality of circumstances impinging on death-sentenced inmates.

Supreme Court Guidance on Competence to Waive Death Sentence Appeals

The U.S. Supreme Court has not provided a clear standard for determining the competence of death-sentenced inmates to waive their appeals. In Rees v. Peyton (1966), the Court opined that the inquiry should be directed to whether he has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.

Unfortunately, the Court did not define “rational choice” or specify the procedures the lower court should use to determine if this standard has been met. Subsequently, in Gilmore v. Utah (1976), the Court did not reference the Rees decision, instead simply concluding that Gary Gilmore had made a knowing and intelligent waiver. Though the knowing and intelligent factors implicated an inherent autonomous decision-making consideration, an explicit “voluntary” factor was incorporated by the Supreme Court in 1990 in Whitmore v. Arkansas. Some additional guidance is available from Rumbaugh v. Procunier, a 1985 U.S. Court of Appeals for the Fifth Circuit decision that the U.S. Supreme Court let stand by denying the petition for a writ of certiorari. Rumbaugh sought to structure the Rees criteria with the following questions:

  • Is the person suffering from a mental disease or defect?
  • If the person is suffering from a mental disease or defect, does that disease or defect prevent him from understanding his legal position and the options available to him?
  • If the person is suffering from a mental disease or defect that does not prevent him from understanding his legal position and the options available to him, does that disease or defect, nevertheless, prevent him from making a rational choice among his options?

Although these questions are helpful in providing a decision tree, they do not define the critical terms. Furthermore, they do not specify the procedures that should be employed to elicit answers to these questions.

Evaluations of Death-Sentenced Inmates for Competence to Waive Appeals

As is the case with most forensic evaluations, assessments by mental health professionals of competence to waive appeals by a death-sentenced “volunteer” are mostly descriptive rather than conclusionary. This is particularly important in light of the absence of a clear definition of many of the critical elements of competence. A descriptive approach also acknowledges that determinations of incompetence by the courts have significant variability in the nature and severity of the qualifying psychological disorder, as well as the relationship of that disorder to rational decision making. Such a highly descriptive narrative should provide a careful analysis of the motivations for waiving appeals. The motivations underlying such a waiver may be far more complex and less obvious than the stated rationale of the volunteer. Thus, it is important not only to engage the capital inmate in discussion regarding the available options but also to gather information on any current or historical psychological disorders. Depressive symptoms and associated suicidal ideation are a particularly important focus, as is any paranoia. Many of the considerations explored in a competency-for-execution evaluation are also relevant to a waiver assessment, as these illuminate the capital inmate’s understanding of his or her own impending death. Specific attention should be paid to the conditions of confinement on the respective death row and how these affect mood, future perspective, and waiver decision making. Throughout this extensive interview with the volunteering inmate, careful attention should be directed to rationality, logic, insight, and coherence of thought.

Interviews should also be held with appellate counsel, as well as prison staff, family members, and other relevant third parties. Psychological testing, including personality and cognitive assessment, may be helpful in some cases to assess aspects of the inmate’s functioning that contribute to his or her understanding and motivations with respect to the waiver.


  1. Blank, S. (2006). Killing time: The process of waiving appeal in the Michael Ross death penalty cases. Journal of Law and Policy, 14.
  2. Cunningham, M. D., & Vigen, M. P. (2002). Death row inmate characteristics, adjustment, and confinement: A critical review of the literature. Behavioral Sciences & the Law, 20, 191-210.
  3. Gilmore v. Utah, 429 U.S. 1012 (1976).
  4. Gregg v. Georgia, 428 U.S. 153 (1976).
  5. Lyon, A. D., & Cunningham, M. D. (2006). Reason not the need: Does the lack of compelling state interest in maintaining a separate death row make it unlawful? American Journal of Criminal Law, 33, 1-30.
  6. Norman, M. T. (1998). Standards and procedures for determining whether a defendant is competent to make the ultimate choice—death; Ohio’s new precedent for death row “volunteers.” Journal of Law and Heath, 13,
  7. Rees v. Peyton, 384 U.S. 312 (1966).
  8. Rumbaugh v. Procunier, 753 F. 395 (2d 5th Cir. 1985).
  9. Soering v United Kingdom, 11 E.H.R.R. 439 (1989).
  10. Whitmore v. Arkansas, 495 U.S. 149 (1990).

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