The Supreme Court’s narrowing requirement emerged from concerns in Furman v. Georgia (1972) that the death penalty was being implemented in a manner that was arbitrary, capricious, and discriminatory. For many states that continue to exercise the death penalty, the narrowing requirement is satisfied by statutory aggravating factors designed to limit the death-eligible class to the most heinous offenders.
This Note identifies a problem in the construction of statutory aggravating factors that has been severely overlooked and endures today: double counting. Double counting occurs when the statutory aggravating factors duplicate elements of the capital offense. In this context, a finding of guilt can mean an automatic finding of an aggravating factor, resulting in an automatic or mandatory death sentence. This Note contends that the persistence of double counting is due to a misinterpretation of Lowenfield v. Phelps (1988). This Note supports this contention through a comprehensive analysis of state supreme courts’ and lower federal courts’ approaches to upholding the practice of double counting. Finally, this Note provides a strategy to prevent the unconstitutional practice of double counting and to successfully enforce the narrowing requirement.