Encyclopedia of Psychology and Law

whether he is suffering from a mental disease, disor-

der, 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 Reesdecision, instead simply con-

cluding 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. Rumbaughsought to structure

the Reescriteria 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, assess-

ments 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 compe-

tence. 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 rela-

tionship 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 symp-

toms and associated suicidal ideation are a particularly

important focus, as is any paranoia. Many of the consid-

erations explored in a competency-for-execution evalu-

ation 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 perspec-

tive, and waiver decision making. Throughout this

extensive interview with the volunteering inmate, care-

ful attention should be directed to rationality, logic,

insight, and coherence of thought.

Interviews should also be held with appellate coun-

sel, 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 func-

tioning that contribute to his or her understanding and

motivations with respect to the waiver.

Mark Douglas Cunningham

See also Checklist for Competency for Execution

Evaluations; Competency for Execution; Competency to

Stand Trial

Further Readings

Blank, S. (2006). Killing time: The process of waiving appeal

in the Michael Ross death penalty cases. Journal of Law

and Policy, 14,735.

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.

Gilmore v. Utah, 429 U.S. 1012 (1976).

Gregg v. Georgia, 428 U.S. 153 (1976).

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.

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