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27 Behav. Sci. & L. 1 (2009)

handle is hein.journals/bsclw27 and id is 1 raw text is: 

Behavioral Sciences and the Law
Behav. Sci. Law 27: 1 27 (2009)
Published online in Wiley InterScience
(www.interscience.wiley.com) DOI: 10.1002/bsl.852

                        Retributive Constraints on the
                        Concept of Competency: the
                        Required Role of Patently
                        False Beliefs in Understanding

                        Competency to be Executed

                        Elyn Saks, M.Litt., J.D.*'t

Scott Panetti understands that the state says it intends to execute him for the murder
of his wife's parents, but believes that the real reason that the state is acting-in
league with the devil-is to prevent him from preaching the gospel. This case starkly
poses the issue of what it is to be competent to be executed, a question that has
received little attention in the courts and commentary. Is it enough to understand
what the state says, or must one also form relatively correct beliefs about the matters
bearing on one's execution?
   The first I call the magic words test: if you can say the state says it will execute
me because I was convicted of murder, this is enough for competency. The
Supreme Court recently in the Panetti case itself denied this as the reason for
execution: one must have a rational understanding of why one is to be executed that
goes beyond recognizing what the state says.
   This article extends the Panetti analysis. First, it further explores and rationalizes
the retributive basis for requiring more than the magic words. Second, it extends
the analysis to other issues involved in competency to be executed-namely, beliefs
about the crime and the execution no less than the reason for the execution. It
proposes to use the concept of a patently false belief' (PFB)-a concept with a
robust history, both theoretically and empirically, in the context of medical and
research decisionmaking-to evaluate how good one's beliefs about the relevant
matters must be. In short, the inmate must form no patently false beliefs about the
crime, the punishment, or the connection between the two. Finally, the article
proposes another basis for its competency standard-the too much suffering

*Correspondence to: Elyn Saks, University of Southern California Gould School of Law, Los Angeles, CA
90089-0071, U.S.A. E-mail: esaksTlaw.usc.edu
I would like to thank Scott Altman, Stephen Behnke, Elizabeth Garrett, Ken Kress, Andrei Marmor, Terry
Maroney, and Michael Shapiro for their helpful comments on this article. I would like to thank Stephen
Behnke additionally for his expert editorial assistance. I would also like to thank reference librarian Jessica
Wimer for her helpful research assistance.
tOrrin B. Evans Professor of Law, Psychology, and Psychiatry and the Behavioral Sciences, University of
Southern California Gould School of Law; Associate Dean for Research, USC Gould School of Law;
Adjunct Professor of Psychiatry, University of California, San Diego, School of Medicine; Research
Clinical Associate, New Center for Psychoanalysis.

Copyright 0 2009 John Wiley & Sons, Ltd.

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