Repudiating the Narrowing Rule in Capital Sentencing

By Howe, Scott W. | Brigham Young University Law Review, September 1, 2012 | Go to article overview

Repudiating the Narrowing Rule in Capital Sentencing

Howe, Scott W., Brigham Young University Law Review

This Article proposes a modest reform of Eighth Amendment law governing capital sentencing to spur major reform in the understanding of the function of the doctrine. The Article urges the Supreme Court to renounce a largely empty mandate known as the "narrowing" rule and the rhetoric of equality that has accompanied it. By doing so, the Court could speak more truthfully about the important but more limited function that its capital-sentencing doctrine actually pursues, which is to ensure that no person receives the death penalty who does not deserve it. The Court could also speak more candidly than it has since Furman v. Georgia about the problem of inequality that has continued to pervade capital selection. If the Court remains unwilling to strike down unequal death-penalty systems, it should acknowledge the inequality and explain that the problem addressed by the Eighth Amendment is not inconsistency but retributive excess.


The Supreme Court has declared that the Eighth Amendment imposes two mandates on capital sentencing. First, a death-penalty scheme must "rationally narrow the class of death-eligible defendants . . . ."' Second, it must "at the sentencing phase allow[] for the consideration of mitigating circumstances and the exercise of discretion."2 The body of doctrine that reflects these mandates stems from the 1972 decision in Furman v. Georgia* in which the Court struck down capital sentencing as it then existed, and the quintet of 1976 cases, in which the Court upheld three new death-penalty schemes and struck down two others.4

Among students of capital-sentencing law, both opponents and proponents of the death penalty generally view the doctrine as grievously flawed.5 Opponents frequently argue that the doctrine is "unresponsive to the central animating concerns that inspired the Court to embark on its regulatory regime in the first place,"6 which was the "arbitrary and discriminatory imposition of death . . . ."7 Proponents emphasize that the doctrine unduly interferes, for no apparent purpose, with states' decisions about how to structure death-penalty trials.8 Commentators from both camps generally agree that the law embodies a confusing and debilitating tension between "consistency," which is the purported goal of the first mandate, and "individualized consideration," which is the asserted goal of the second one.9

This Article urges a reform to resolve claims that capitalsentencing doctrine is simultaneously meaningless, overly complex, and at war with itself. The proposal will satisfy neither committed opponents nor ardent proponents of capital punishment, because it would preserve the most important part of existing doctrine and thus, neither assure equality in the distribution of death sentences nor avoid interference with state decisions on how to structure death-sentencing deliberations. While the proposal offers only a modest reform to existing doctrine, it also aims to alter substantially the existing rhetoric regarding capital sentencing's central goal, allowing a more truthful account to blossom. I contend that the Court should abandon die first mandate, regarding narrowing, and end die rhetoric about consistency that has accompanied it. At the same time, the Court should preserve the second mandate, regarding mitigating evidence and sentencer discretion, and articulate the deeper rationale that justifies it, which is not simply "individualized consideration," but a "deserts limitation" - the notion that no person should receive a death sentence who does not deserve it.10

I previously have argued that the Court should have avoided altogether the regulation of capital-sentencing trials under the Eighth Amendment.11 In Furman or in the 1976 cases, the Court could have begun to foreclose the use of the death penalty in certain categorical situations, such as for rape, but otherwise left states to decide how to structure capital -sentencing decisions.12 Alternatively, the Court could have held the death penalty impermissible as cruel and unusual punishment, except perhaps for rare and egregious crimes against the state or against humanity. …

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