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Repudiating the Narrowing Rule in Capital Sentencing
Brigham Young University Law Review (2012)
  • Scott W. Howe

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 that the Supreme Court should 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.

  • Capital Punishment,
  • Death Penalty,
  • Eighth Amendment,
  • Cruel and Unusual Punishment
Publication Date
Citation Information
Scott W. Howe, Repudiating the Narrowing Rule in Capital Sentencing, 2012 BYU L. Rev. 1477. Available at: