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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 selfpreservation 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.

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