Proof beyond a reasonable doubt (PBRD) has long been thought to be fundamental as the standard of proof in criminal cases. Yet PBRD is not expressly mentioned in the Bill of Rights. It was only in 1970 in the juvenile delinquency case In re Winship, 397 U.S. 358 (1970) that the USSC held for the first time that proof beyond a reasonable doubt is a due process constitutional requirement in criminal cases. The court said, "... we explicitly hold that the Due Process Clause protects the accused from conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Note again that the USSC was reading PBRD into the Fourteenth Amendment. The opinion held, first, that criminal conviction had to be based on proof beyond a reasonable doubt , and, second, that the same standard applied in delinquency proceedings. See Jackson v. Virginia, 443 U.S. 307 (1979). Failure to instruct the jury on reasonable doubt constitutes structural error that requires reversal; it cannot constitute harmless error. See Sullivan v. Louisiana, 508 U.S. 275 (1993). The USSC has only had one occasion to reverse a case because the definition of reasonable doubt violated due process standards. See Cage v, Louisiana, 498 U.S. 39 (1990). But see Victor v. Nebraska, 511 U.S. 1 (1994) in which the USSC declined to give further guidance in defining reasonable doubt. Here is a list of articles discussing the meaning and usefulness of the reasonable doubt concept. [Author's Note: Since proof beyond a reasonable doubt is a constitutional requirement of due process in all criminal cases, state and federal, shouldn't our U.S. Supreme Court expend whatever resources are available to substantively define this fundamental concept? Do we profit from varying definitions or from leaving it to each juror to come up with his/her own subjective definition? ]

Last public execution (hanging) described - The last public execution here in the United States was in 1936. The description of it was as follows: "This was the hanging of a 22-year-old black man named Rainey Bethea at Owensboro, Kentucky. Bethea had been convicted of the slaying of a 70-year-old white woman. The hanging was organized by the county sheriff, a woman named Florence Thompson. She deliberately had the scaffold erected in a field so that thousands could witness the execution, which she set for sunrise. So many people invaded Owensboro for the spectacle that terrified local blacks fled the town, especially after receiving lynching threats from drunken white revelers. All night hanging parties were the order of the day. By 5:00 a.m. the following morning, 20,000 people were in the field, including over 200 sheriffs and deputies from various parts of the United States. Only six blacks attended, two of them women. When the hangman was testing the trap door, it snapped open to the loud cheers of the crowd. Bethea arrived at 5:12 a.m., accompanied by a Catholic priest. When the hangman pulled the bolt, there was a loud cheer. The still warm body was attacked by souvenir hunters. They tore off pieces of clothing; some even attempted to cut pieces of flesh from Bethea's dangling body. Hundreds of spectators thronged around the scaffold while two doctors examined the body with stethoscopes. There was a large groan when the doctors detected heart beats. At 5:45 a.m., Bethea was pronounced dead. At that moment, several people began fighting over the hood that covered his head."

Description of execution in the gas chamber (1) - In the gas chamber, a person is strapped in a chair. The guards close the door and seal it. Then they drop the little pill into a bowl of acid. The fumes start to come up. Because of the straps, the condemned is not able to move away from the fumes. He may try not to breathe, but he has to. Then, slowly and painfully, he strangles to death. It would not be a sight most of us would want to witness. It is even a horrible thought to put in your mind, but it is a necessary thought, because you have to think about the consequences of a death verdict. You have to think about all the bad things: the straining against the straps, the gagging, the loss of all bodily functions. Is that what you want for a human being? Is that what you want? Is it? Perhaps the decision, even though it is your decision, is best left for God, not man.

Description of execution by electrocution (1) - The prosecutor talks much about the death penalty and whether there are mitigating circumstances sufficient to preclude imposing a death sentence. That's lawyer talk. What the prosecutor is really asking you do is to kill (name the defendant). It's as simple as that. S/he is asking you asking you to cause (name the jurisdiction) to pull a switch that will put 5000 volts of electricity through the body of of the (name the defendant). Not the way (name the defendant) looks as he sits here today, but only after his head is first shaved so that they can put on the oil which will allow the electricity to flow more surely through his body. Not the way he looks today, but after they put him in a diaper, because when you are electrocuted you lose control of your bodily functions and they want to make sure that the death room is clean. Not the way he looks today, but after they put a mask over his head, not so he can't see what is going to happen, but so that the witnesses who by law view the electrocution can't see his eyes bursting from their sockets and blood gushing from his nose as the voltage hits him.

Procedure for Lethal Injection

Describing the official procedures followed in an execution - The (name the state) department of corrections follows certain official procedures in an execution. (Determine the method of execution used in your jurisdiction and describe with precise accuracy the gruesome mechanics of the procedure used to execute inmates in your jurisdiction, e.g., The prisoner is moved from the Ellis Unit to the Huntsville Unit, about thirteen miles away, where the death chamber is located. The inmate is transferred early in the morning and taken to one of eight holding cells adjacent to the death chamber. During the day, the prisoner is entitled to visits from the prison chaplain or his personal spiritual advisor and his attorney and approved family and friends. After 6:00 p.m., only the chaplain is allowed to visit. The final meal is served between 6:30 and 7:30 p.m. At the hour of execution, the inmate is taken from his holding cell and walked to the death chamber where he is secured to a hospital gurney, or cot. One of his arms is fastened to a small board protruding from the gurney. A medical assistant then inserts an intravenous catheter into a vein in his arm. The witnesses are then allowed at that point to enter the viewing area of the death chamber. They stand behind a rail separating them from the inmate by four or five feet. The inmate is then allowed to make a final statement. When the statement is completed, the warden announces that the execution can proceed. The executioner stands behind a wall containing two small covered windows, one connecting the the tube of the IV and another for communication. At the warden's announcement, the executioner injects a neutral solution into the prisoner's arm. Then he injects a fatal combination of sodium thiopental; Pavulon (pancuronium bromide), a muscle relaxant; and potassium chloride to stop the heart.) [Note: Every state employing death penalty should have a official execution protocol that will set forth specifically the mechanical procedure employed in putting condemned prisoners to death; if your state does not have such an official protocol and leaves the mechanics to the discretion of the State Department of Corrections, a systemic challenge should be made to the administration of the death penalty on Eighth Amendment grounds. See, for example, the Maryland case of Vernon L. Evans Jr. where a state court held that the checklist of lethal injection procedures was a regulation that had to comply with the requirements of the state administrative procedures statute.]

Death is Death

Death is death - Death is death, regardless of what form it takes. You cannot insulate yourself by saying that you are a member of this jury and that you only voted that (name the defendant) be (state the manner of execution, e.g., given a lethal injection). The end result is the same. If you vote to authorize somebody else to (state the manner of execution, e.g., inject the lethal chemicals), it is just like you are giving the injection. You are not going to be there, of course. No one will require you to watch. But under our system (describe the manner of execution, e.g., the injection cannot be given or the switch cannot be pulled) unless you (state the action the jury must take to return a death verdict, e.g., answer the special aggravation issues "yes"). If you do so, you are saying, "Let him die by (state the manner of execution,e.g., lethal injection).

Injection of fatal chemicals (1), (2) if prosecution has its way - (Gesture to the prosecution table) They want you to die an undignified death, (call the defendant by his given name). It'll gratify their wishes if and make them feel good about their job and make their argument a winning one if they come for you some day as you sit in a prison cell. They'll strap you to a cart and roll you into a dark room up against a wall. And there will be long tubes. They'll hook the tubes to your arm, and you will watch as the liquid circles through the tubes, plain as death. You won't be able to do anything about it because you'll be strapped down tight. You'll die from an intentional, premeditated act of poisoning if they (indicate the prosecution table) have their way.

Injection of fatal chemicals - syringe demonstration - The executioner will fill big hypodermic syringes with sodium thiopental, an anesthetic and depressant designed to cause unconsciousness; pancuronium bromide, a paralyzing agent similar to the poison used on arrow points by South American Indians that paralyzes the inmate's lungs and the diaphragm muscle; and potassium chloride, a salt that stops the inmate's heartbeat by inducing cardiac arrest. The executioner will inject these chemicals with a syringe like this (Display a facsimile syringe.) into an IV that will flow into (name the defendant) veins. His face will tighten and tears will come to his eyes. He may whimper. Perhaps he will make no sound. If the sodium thiopental works he may be unconscious. And if it doesn't work, we won't know if he is conscious because the pancuronium bromide has paralyzed his lungs and diaphragm thus preventing him from crying out. If he's conscious, he'll begin to feel death creeping in. His breath will come in wheezing rasps. His fingers will tremble. Then his body will stiffen and move no more. A doctor will step forward, place a stethoscope on (name the defendant) chest, shine a penlight into his eyes, and say "I pronounce this man dead." See Baze v. Rees, __ U.S. (2008) upholding the Eighth Amendment constitutionality of the three-drug cocktail lethal injection.

Prosecutor's Power

Prosecutor's power to seek the death penalty - We all know that the prosecutor decided to seek the death penalty in this case. He didn't have to do that. If they don't file a notice of intent to seek death, the defendant gets an automatic life sentence. Have you ever asked yourself what criteria the prosecutor uses to exercise this omnipotent power to decree that the death penalty will be sought against some men who commit capital murder and not against others. I don't have that unfettered power to make that decision and I wouldn't want it.

Jurors Role

Jurors can't shift responsibility - To those of you who, as you sit here now, tend to agree with me, bear with me for awhile, for I too know that brevity is the soul of wit. To those who of you who may tend to disagree with me as you sit here now, keep and open mind. To those of you who have formed no opinion at all at this stage, but are waiting to hear my remarks, I hope my words will convince you that this is not a death penalty case. Because it is the opinion of the twelve men and women who sit in front of me who make the decisions that count. It is your decision alone that counts.

You can never shift the responsibility for the sentence in this case. You can never explain that the rest overpowered you, because you, each and every one vote, and only you and you alone can cast that vote. If your personal vote is that (name the defendant) must be sentenced to death, it must be done by each of you as an individual. It must be your individual, deliberate, cool, premeditated act and no one else's.

Killing For Vengeance

Killing for vengeance not deterrence - pickpocket story - Why do we kill? If you cut away all the fat, it is probably for retribution and vengeance. It couldn't be much of a deterrent because we've had he death penalty for years and there are hundreds and hundreds of people on death row. Many countries have had the death penalty. England once had the death penalty for 172 offenses. They put adulterers to death. They would put pickpockets to death. The interesting thing is that they had public executions. They would bring a pickpocket out, convict him, hang him by the neck in public so that the crowds could gather around and assemble and see the fate that would befall pickpockets. Do you know what? They found out that when they executed pickpockets there were more people at the execution getting their pockets picked than any other time. It doesn't deter crime. That's not the question today, whether it deters crime or whether its just retribution. The question is whether, under the circumstances you have heard, this man should be put to death.

Death Sentence Creates a hero

Death sentence creates death row hero - In recent years we have seen the grim renaissance of the executioner. We each execution, we create a new death row hero. We focus attention on the offender's fate rather than on the victim. Every time a death sentence is meted out, the jury unwittingly creates a new death row hero, a celebrity of sorts. The enormity of the crime becomes overshadowed by the enormity of the punishment. Don't make a death row hero out of (name the defendant). With a life sentence he becomes just a faceless number living the rest of his life in a cage. No stories will be written about him. No one will care if he lives or dies. Don't give him celebrity status.

Do not create a following for the condemned. We do not want to live in a world created by serial killers. There may be people out there who figure they can beat the person and kill more than them. Sometimes a deterrent can back fire in your face.

Biblical argument

Reply to prosecution quoting from Old Testament - Did you take notice when the prosecutor referred to the Bible? Did you notice that she chose only to refer to Old Testament concepts? In the Old Testament it says, "If there is anyone who curses his father or mother, he shall be put to death; if there is a man who commits adultery with another man's wife ... the adulterer and the adulteress shall be put to death; if there is a man who lies with his father's wife, he has uncovered his father's nakedness, both of them shall be put to death; if there is a man who lies with his daughter-in-law, both of them shall be put to death: they have committed incest; if there is a man who lies with a male as who lies with a woman, both of them have committed a detestable act: they shall be put to death; if there is a man who marries a woman and her mother, it is immorality and both of them shall be burned by fire."

It's probably safe to assume that many of you know a bit about Biblical history. If you know your Bible, you know that under the Old Testament, in times when there were no prisons and prison sentences, the death penalty was attached to some acts that would be considered misdemeanors today. However, you also recall the First Commandment God gave was, "Thou shalt not kill." There were no qualifiers put on that commandment whatsoever.

Brother's keeper - We are sometimes taught that it's our job on this earth to look out for ourselves. Self-survival - that's the essence of the law of the jungle, the law of the birds and beasts, take care of yourself and your tribe, no matter what happens to those outside the unit. Someone asked the question several thousand years ago, "Am I my brother's keeper?" Have we as a people ever answered that question? Are we under any moral or legal obligation to others?

Killing People who kill

Killing people who kill people - Wouldn't you think that most of, if not all, try to teach our kids that it is wrong to kill other people. Whether you are a religious person or an atheist or an agnostic, most of us take it as a core moral that human life is important. A few years back I brought my (state the name and age of the child, e.g., "my twelve-year-old son, Ted") down here to hear me argue for another man's life. On the way down the boy asked me, "Dad, why do we kill people who kill people to show that killing is wrong?" That question and the answer to it goes to the core of what we are doing here today. Why do we kill people to show that killing is wrong?
Yesterday, that same boy, now (indicate the current age) asked me, "Are they going to kill (name the defendant)? I said, "I don't know."

Do Two Wrongs Make A Right?

Two wrongs don't make right - Two wrongs don't make a right. You have spoken. We can't argue with your decision convicting the defendant of being guilty of this crime that carries with it the possibility of a verdict of death. We may disagree and believe that the defendant is not guilty, but we cannot argue with your verdict of conviction. You have said that he (describe the capital offense, e.g., murdered a police officer, intentionally killed a convenience store operator during a robbery, etc.). And that brings us to this stage of the proceedings where you must decide the punishment. If in fact he killed the victim, we cannot bring the victim back by killing the defendant. Two wrongs don't make a right.

We teach our children not to fight and to turn the other cheek, yet we do not practice what we preach.

Can you revoke the death penalty ?

Death penalty as irrevocable - One aspect of the death penalty that we can't ignore is that it is absolutely irrevocable. Once somebody is put to death, once (describe briefly the relevant manner of death, e.g., once the potassium cyanide pellet is dropped, once the lethal poisons flow into the vein,etc.) and the agony of the death throes is over and the person is pronounced dead, that's the end of it. That's the end of the case for (name the defendant). No matter what might happen in later years, it wouldn't matter because once you've killed him you can't bring him back.

Argument of Executing the Wrong Person

What if there is a small chances of executing wrong person? Some people believe that human life is sacred and that society has no right to take it. The rules of our government doesn't allow those folks to serve on a death penalty jury. But even if you don't believe that every human life is sacred, the thing that should nag at your conscience is the thought that you might be condemning the wrong person to death. As a matter of history, don't we know that it happens? Don't we know that we've executed people for crimes they didn't commit? Shakespeare in his play Hamlet described death as "the undiscovered country, from whose bourne no traveler returns." Before you send another human being into oblivion, you should be absolutely sure in your own conscience that it's the right person.

Pro Argument

Capital punishment as a feature of organized civil society is at least as old as history. Biblical sanction, especially in the Old Testament, appears at Gen. 9.6, calling for shedding the blood of a murderer. Other verses call for execution on everything from disobeying priests (Deut. 17.12) to mishandling problem livestock (Exod. 21.29). New Testament sanction is somewhat more ambiguous, though Paul tells the Romans that state authorities have God's authority to punish the wicked (Rom. 13.1-5).

The Enlightenment marked the first major interrogation of capital punishment as state policy in the West. In 1764, Cesare Beccaria argued that punishments should fit the crime and that all citizens, not just elite classes, should be able to at least understand the laws governing them before suffering on account of them (17). Voltaire took up that theme in The Sage and the Atheist, criticizing English law and the Inquisition for dis

. . .
ed of crimes against whites were most likely to be executed, and that most likely in the American South. The proportion issue is also important. Even though US Department of Justice has reported that whites comprised about 56% of all executions between 1977 and 1999, with blacks accounting for about 42% and other racial groups accounting for the balance (BJS, 1999), blacks account for 10-12% of the entire US population. Costs and Benefits Opinion is sharply divided on the issue of death-penalty costs. Proponents argue that executions avoid the expense of long-term incarceration, but opponents cite "staggering" costs of long-term capital appeals litigation (Turow 40), which is admitted even by advocates (CDC) and can run about an estimated $5-$7 million for each case (Costanzo 61). Life imprisonment without parole has been said to cost $500,000-$750,000 per inmate. By one estimate, $90 million in tax revenue could be saved every year in California if the death penalty were abolished (Costanzo 61). Human costs are frequently brought into the debate. Modern critics of the practice argue that it coarsens the body politic: Our emotions may cry for vengeance in the wake of a horrible crime, but we know that killing the criminal can lead to a s