In capital litigation, the United States Supreme Court in Furman v. Georgia and following cases required capital punishment systems to have a form of "narrowing" so that the death penalty was imposed only on the worst of the worst. The death penalty states have failed to successfully implement this concept. As a result, "narrowing" is currently raised in all capital cases by competent defense counsel both at trial and in post conviction litigation. It is raised in addition to all other issues, including issues related to the questions of whether exclusion from the death penalty should be expanded and whether that expansion brings into question the very validity of capital punishment itself.
Interestingly, two law review articles were published earlier in 2015 almost simultaneously. One claims that the Furman claim of "narrowing" is raised in cases as the "darling" of scholars and defense lawyers to the exclusion the issues regarding expansion of exclusions arguments. The other claims that Furman has not been raised enough and needs to be reawakened.
This article analyzes both articles and concludes that the practice of raising all constitutional arguments is required in capital litigation and that "forgetting" Furman or any other possible contender for the Supreme Court's attention would be highly inappropriate. The article also concludes that the best practice would be to raise Furman and including all other arguments, as suggested by the second article.
- Death Penalty,
- Capital Punishment,
- appellate briefs,
Available at: http://works.bepress.com/robert_sanger/28/