This paper makes the case that a real-world examination of how a capital sentencing statute operates is the proper inquiry into whether that statute “narrows” the pool of persons eligible for a sentence of death, as required by the Eighth Amendment.
John Mills, How to Assess the Real World Application of a Capital Sentencing Statute: A Response to Professor Chad Flanders’s Comment, 51 U.C. Davis Online 77 (2017) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3058338