In the case of Franklin v. Lynaugh, Director, Texas Department of Corrections in 1987, petitioner John Franklin was convicted for murder and sentenced to death by a Texas court. He appealed his sentence on the grounds that he had been denied effective assistance of counsel during his sentencing hearing because his lawyer failed to present mitigating evidence about his character and background. The Supreme Court ruled against him in a 5-4 decision stating that even if such evidence were presented it would not have changed the outcome given the severity of Franklin's crime - shooting an unarmed man five times at close range after robbing him. The majority opinion held that there is no constitutional requirement for a capital sentencing jury to be instructed how to weigh particular facts when deciding whether or not they warrant imposition of the death penalty.

In the dissenting opinion for Franklin v. Lynaugh, Justice Brennan, joined by Justices Marshall and Blackmun, argued that the Texas capital sentencing scheme was unconstitutional because it did not allow for adequate consideration of mitigating evidence. They believed that this violated the Eighth Amendment's prohibition against cruel and unusual punishment. The justices pointed out that under Texas law, a defendant could only avoid a death sentence if he or she proved they were unlikely to commit future acts of violence - something difficult to prove beyond reasonable doubt especially when considering factors such as age or mental capacity which may change over time. This narrow focus on future dangerousness failed to consider other relevant aspects of an individual’s character and record which might argue against imposing a death sentence according to them.