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 stand-
ing to intervene as a “next friend” and continue with
the appellate review.
A decision by a death-sentenced inmate to func-
tionally accelerate execution by forgoing appeals cre-
ates 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 mortal-
ity. For example, an individual can elect to forgo or
discontinue medically indicated treatment even if
death is the predictable result but is barred from com-
mitting suicide or seeking physician-assisted death.
There is an analogous conundrum of determining
where a rational determination that solitary confine-
ment 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 pre-
serving the integrity of the criminal justice system and
safeguarding the reliability of the application of capi-
tal 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, com-
plicated, 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 neu-
ropsychological 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 consider-
ation among death-sentenced inmates who seek to
waive their appeals. This complexity is a function of
both internal and external experience. A history offamily dysfunction, substance dependence, and neu-
ropsychological 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 sen-
tence of death is not insignificant. These psychologi-
cal 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 confine-
ment 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 classifica-
tion intended to reflect the coercive totality of circum-
stances 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 towhether he has capacity to appreciate his position
and make a rational choice with respect to continuing
or abandoning further litigation or on the other hand124 ———Competency to Waive AppealsC-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 124