Defending Capital Punishment: A Response to Dennis Uhlman

In his recent essay in Public Discourse, Dennis Uhlman makes a variety of arguments against the death penalty. Some of these are indictments of the American criminal justice system as a whole: e.g., there is too much plea bargaining, poor defendants cannot afford the best defense attorneys, public defenders are “overworked and under-resourced,” we rely too much on eyewitness testimony, and the system takes too little account of the effect of childhood trauma on future criminality. But Uhlman does little (in some cases nothing at all) to connect these general critiques to the use of the death penalty in the twenty-seven American states, and the federal government, that retain capital punishment.

Should Eyewitness Testimony Be Excluded from Capital Trials?

Consider eyewitness testimony. Uhlman writes that “our justice system relies on a faulty system of plea bargains and eyewitness testimony to sentence men and women to death.” Later he explains that “eyewitness accounts . . . can be corrupted by the motives and personal animosities of the individual witness.” But of course. That is precisely why eyewitnesses face cross-examination. Perhaps the witness had faulty eyesight. Perhaps the light was bad. Perhaps the witness had corrupt motives. It is the jury’s responsibility to assess the reliability of eyewitness accounts. Surely, if one person sees another person kill a third person, that evidence must be allowed in court. Would Uhlman ban eyewitness testimony from all murder trials? 

Can Public Defenders Provide an Adequate Defense?

Or consider the charge that public defenders are “overworked and under-resourced.” This is a familiar refrain; but note that Uhlman provides no evidence that in capital cases—a tiny subset of all violent crime cases—public defenders lack the experience, time, and resources (such as relevant experts) to provide an adequate defense. In By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment, Edward Feser and I present considerable evidence that, in general, public defenders in capital cases are well-qualified and well-resourced. Moreover, if a defendant believes he received an inadequate defense, he may raise this on appeal in both state and federal courts. Sometimes defendants succeed in these appeals and receive a new trial or a new sentencing hearing.

Does Childhood Trauma Make the Death Penalty Unjust?

It is not clear what Uhlman’s larger point is regarding the connection between early childhood trauma and future violent behavior. He denies that his views lead to “an overly therapeutic view of restorative justice.” Here, “overly” carries a lot of weight, and one would like to know just how “therapeutic” his understanding is of what justice demands in the most serious murder cases. Apparently, childhood trauma would not rule out such a severe punishment as life behind bars: “These arguments against capital punishment are not arguments against life in prison. Justice is a vital part of our system and the families of victims deserve to see that our culture takes crime seriously.” So, perhaps what Uhlman means is that evidence of prior trauma should be admitted in a capital murder case as a mitigating factor when the jury considers whether to recommend a sentence of death. 

But, as he must know, this is happening already. For nearly half a century the Supreme Court has held that in a sentencing hearing in a capital murder case, the defense may enter into evidence “any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”

Does Capital Punishment Violate the Pro-Life Ethic?

Uhlman’s principal objection to the application of the death penalty in the United States is “the truth . . . that the capital punishment system is taking innocent lives.” Such injustices violate “the pro-life viewpoint.”  Here Uhlman intertwines two distinct arguments, in a way that can be difficult to sort out.

The broader argument is that the death penalty in itself, apart from any imperfections in its application, is contrary to pro-life principles: “A question that must be considered is whether there is ever a time when capital punishment is justified. For the defender of life, the answer is no.” Beyond the simple fact that capital punishment takes a life, Uhlman does not explain why it is never justified. He does not, for example, address whether taking a human life in self-defense or in a just war violates the “pro-life ethic.” Uhlman writes, “While the justice system can be reasonably certain of guilt, the certainty that would merit execution is largely impossible.” This suggests that some murderers “merit execution” if we can be sufficiently certain of their guilt. Yet in some cases, such as a mass murderer apprehended at the scene, there is no doubt at all as to who committed the crime. Would Uhlman accept the justice of executing such killers?

Is Uhlman’s position that all executions for murder violate pro-life principles, or only executions for which there is some residual doubt of guilt, however small? In any system run by fallible human beings, however well-intended, mistakes are possible. Is the mere possibility of error enough to reject the death penalty in its entirety? Or is his position that wrongful executions are so common in the United States that the pro-life advocate should reject capital punishment as applied in this country at this time?

How Common Are Wrongful Convictions and Executions?

Uhlman spends much time trying to convince the reader that wrongful convictions and executions are commonplace. He offers as evidence questions about the guilt of two recently executed individuals as well as quantitative data from the Death Penalty Information Center (DPIC).

Uhlman writes that “[s]ince 1973, more than 200 people have been wrongly sentenced to death in the United States.” Here he is drawing on the so-called “Innocence List” or “Innocence Database” maintained and publicized by the anti-death penalty organization, Death Penalty Information Center (DPIC). But despite the name, DPIC does not claim that all those on the list are factually innocent of the crime that led to their death sentence.

The “Innocence Database” includes everyone since 1973 who was sentenced to death for murder and later “exonerated” through the criminal justice process by 1) being acquitted in a new trial (or occasionally by appellate courts); 2) having all the charges that landed them on death row dropped; or 3) receiving a complete pardon (usually by a governor) based on evidence of innocence. For the 200 on the current list, sixty-four (32 percent) were acquitted, 128 (64 percent) had the charges dropped, and eight (4 percent) were pardoned. 

Note that except for the small number of pardons, inclusion on the list does not require new evidence of innocence. There are, for example, many reasons prosecutors might drop charges after a successful appeal even if they remain convinced that the individual was guilty of the crime. Higher courts may have excluded key evidence as improperly obtained, witnesses may have died, or essential evidence may have been lost many years after the crime. And for cases that do proceed to a new trial, evidence problems may make it impossible to prove guilt beyond a reasonable doubt.

Is there any way to determine how many of those on the DPIC list did in fact commit the capital crime? In 2003, the California District Attorneys Association issued a lengthy report that included a careful review of the then 102 individuals on the DPIC list. The report concluded that only thirty-four (33 percent) had a persuasive claim of actual innocence. If this ratio held for the 200 now on the list, then we could conclude that of the 8,829 individuals sentenced to death since 1973, perhaps 65-70 (or 0.8 percent) have been removed from death row because of a wrongful conviction. (See By Man Shall His Blood Be Shed for a fuller account of this issue.)

Importantly, through the appellate process, the courts discovered these errors. Yet Uhlman holds that “the capital punishment system is taking innocent lives.” What is the evidence that innocent individuals have been executed? Uhlman describes doubts about the guilt of two individuals: Freddie Owens, executed in South Carolina on September 20, 2024, and Marcellus Williams, executed by the state of Missouri on September 24, 2024. While there is no room here to examine in detail the evidence in these two cases, it is wise when claims of innocence are advanced to keep the following admonition in mind, one that I insisted of my students every time I taught the death penalty: never conclude that an innocent person was executed by relying only on the account of the defense attorneys or of others opposed to capital punishment. Always review the prosecutors’ account of the evidence as well as assessments by appellate courts.

To his credit, Uhlman mentions that Owens bragged to his girlfriend and others that he had shot the store clerk (a single mother of three) in the head when she could not open the store safe, that the ski mask used by the killer as captured by the store’s camera was connected to Owens, and that just hours after Owens’s conviction in 1999 he murdered a jail inmate who was serving a few months on a traffic violation. 

Regarding the murder of the jail inmate, Uhlman writes that “Owens was involved in an altercation with another inmate that ended in that inmate’s death.” More informative is Owens’s own account of the killing (as reported by the South Carolina Supreme Court):

I then walked into his cell and hit him in the eye. He fell down on his back. I got on top and started hitting him mostly in the face and throat. I took a pen from his right hand with my right hand and stabbed him in his right eye. Then I stabbed him in his throat. 

I started hitting him in the face with my right hand. Then I started choking him with my right hand and pounding his head against the floor. . . . 

He never fought back after the first punch, he was out of it. . . . I stood up and stomped his head and body with my feet. . . . I rammed his head into the wall. . . . I got back over him and rammed the pen up his right nostril. I closed his left nostril with my left hand and started choking him with my right hand. 

Though this was not the crime for which Owens was executed, it speaks volumes about the character of the man that South Carolina put to death a few weeks ago. As to the unprovoked fatal shooting of the store clerk in the head, the state supreme court and the governor remained convinced throughout of Owens’s guilt.

Uhlman says less about Marcellus Williams, who was convicted of burglarizing a woman’s home in 1998 and then “ambush[ing] her as she left the shower, stab[ing] her 43 times and [leaving] the knife lodged in her neck, and then [stealing] items from her home.” Various abolitionist groups have asserted unambiguously that Williams did not commit the crime for which he was executed. Yet, after an “innocence hearing” in early September of this year and a careful review of all the evidence, a Missouri circuit court judge concluded that “there is no basis for a court to find that Williams is innocent, and no court has made such a finding. Williams is guilty of first-degree murder.” Shortly thereafter, Governor Mike Parson refused to intervene, issuing a statement affirming that “Nothing from the real facts of this case have [sic] led me to believe in Mr. Williams’ innocence.” He concluded his statement with a summary of the key evidence that led to Williams’s conviction.

Over the past half-century, 1,600 convicted murderers have been put to death in the United States. Were any of these actually innocent of the crime that led to their execution? In 2017, Edward Feser and I, after a close examination of the evidence, concluded that “Although there is no way to know this with certainty, it seems likely that at most 1 or 2 innocent persons—and very possibly none at all—have been executed since the Furman decision of 1972.” Nothing that has happened, or been learned, in the past seven years changes that judgment.

Does Capital Punishment Promote the Common Good?

No reasonable defender of the death penalty denies the possibility of errors in the criminal justice system run by fallible human beings. We arm half a million police officers in the United States even though a few may negligently, or even intentionally, take an innocent life. We do this because it serves a larger social good, a good that cannot be achieved without the risk of an innocent person being harmed or killed. Similarly, the death penalty serves a larger social good that cannot be achieved without the risk, however small, of an innocent person being executed. This includes deterring potential murderers; reinforcing society’s condemnation of murder, thus making it less likely that those growing up in a community with capital punishment would even consider killing someone in the first place; reassuring the families of murder victims that they live in a just society that shows respect for the lives of their loved one; and promoting belief in and respect for the majesty of the moral order and for the system of human law that both derives from and supports that moral order.

Image by Gorodenkoff and licensed via Adobe Stock.