51. Fallibilism and the Death Penalty
In this post I would like to present an argument against the death penalty based on the philosophical position known as fallibilism.
What is fallibilism? Well, the word ‘fallible’ means capable of being mistaken. If we add an “ism” on the end we make a more categorical claim and say that no belief can be justified in a conclusive way. So here is the definition:
Fallibilism is the view that no belief can be justified in a conclusive way.
Note that fallibilism does not necessarily entail there is no truth or that knowledge is impossible. Fallibilists just claim we have no certainty in our justifications. Now some may complain that if we don’t have certainty then we don’t have knowledge. But this doesn’t seem to be true. Think of science: all its truth claims are ultimately uncertain since any truth claim in science is only as secure as the last experiment. Scientists must accept that in the future there may be new evidence that will overturn a well-established hypothesis. But we don’t say that scientists don’t have knowledge just because they lack certainty.
Here are a few reasons to adopt fallibilism:
- Our memories can be very unreliable.
- Our senses can be very unreliable.
- Our reasoning is very often fallacious. And even when it isn’t, most of our reasoning is inductive and thus can only, at best, establish high probabilities not certainties.
- A great deal of thinking (if not all) takes place in language and language is essentially symbolic. But symbols do not have a natural connection to that which they represent. So the accuracy of our language and thought, especially when it is taken as representing the world, is suspect.
- There are intelligence limitations that we must face as individuals and groups.
- There are technological limitations that we must face as individuals and groups.
- There are situational limitations, that is, everyone sees and thinks from certain perspectives.
- These perspectives are not only spatial and temporal; they are also economic, political, sexual, racial, national, etc.
- And, as philosopher Charles Sanders Peirce (1839-1914) argued, thoughts are signs and a thought-sign can only represent a certain aspect of an object from a limited perspective. Thus the nature of a thought-sign is to be a partial interpretation of the world and all partial interpretations are open to revision from other thought-signs. Therefore, no interpretation is final.
These possibilities of error apply with particular poignancy to the death penalty issue. According to the ACLU, the United States capital punishment process “is fraught with error”, “discriminates on the basis of socioeconomic status, race, and geography”, “is arbitrary and capricious, including its use against the mentally ill and defendants who did not kill anyone and did not intend that anyone be killed”, “is plagued by cheap legal representation – the worst, not the best, of American lawyering.”  And Hugo Bedau claims “overzealous prosecution, mistaken or perjured testimony, faulty police work, coerced confessions, the defendant’s previous criminal record, inept defense counsel, seemingly conclusive circumstantial evidence, community pressure for a conviction—such factors help explain why the judicial system cannot guarantee that justice will never miscarry. And when it does miscarry, volunteers outside the criminal justice system—newspaper reporters, for example—and not the police or prosecutors are the ones who rectify the errors. To retain the death penalty in the face of the demonstrable failures of the system is unacceptable, especially as there are no strong counterbalancing factors in favor of the death penalty.” 
All these observations about the grounds for fallibility help us make a strong case against the death penalty. For if we can’t be certain about the justifications that got someone to death row, then it logically follows that we might be wrong about their guilt. Could it be that something in the case was missed? Could it be that others were involved? Could it be the person really was temporarily insane for a moment? Could the person have been determined by forces outside his control? Might there have been racial bias or corrupt authorities involved? Etc., etc. If we are indeed fallible then the answer to these questions is yes. It is important to note that, as of April 1, 2012, 289 people have been exonerated as innocent from death row. That alone shows the fallibility of humans in relation to justice. So what does this skepticism amount to? Simple: don’t put anyone to death since the death penalty is the one form of punishment that closes of the possibility of further inquiry into the case. Moreover, this closing off can lead to injustice that cannot be overturned. After all, someone wrongly put to death cannot be liberated and receive justice or compensation. And those who are actually guilty will most likely not be caught. You can put someone into prison for life and you can agree with the verdict of a jury. But if we never have certainty then let’s not support a form of punishment that prevents further inquiry into a case, however unlikely such inquiry may be. Here is the argument in formal form:
Premise 1: The death penalty should only be used if we have certainty (certainty=beyond rational doubt or doubt that entails no contradictions) regarding someone’s guilt (since there is no way to self-correct when we make an error: death is final)
Premise 2: But no belief, including the belief that someone is guilty, can be justified in a conclusive way—we have no certainty (df. of fallibilism)
Conclusion: Therefore, we shouldn’t use the death penalty.