Reasonable Moral Doubt

55 Pages Posted: 17 Mar 2022 Last revised: 5 May 2022

See all articles by Emad H. Atiq

Emad H. Atiq

Cornell University - Law School; Cornell University - Sage School of Philosophy

Date Written: March 12, 2022

Abstract

Sentencing outcomes turn on moral and evaluative determinations. For example, a finding of “irreparable corruption” is generally a precondition for juvenile life without parole. A finding that the “aggravating factors outweigh the mitigating factors” determines whether a defendant receives the death penalty. Should such moral determinations that expose defendants to extraordinary penalties be subject to a standard of proof? A broad range of federal and state courts have purported to decide this issue “in the abstract and without reference to our sentencing case law,” as the Supreme Court recently put it. Kansas v. Carr, 577 U.S. 108, 119 (2016). According to these courts, “it would mean nothing” to ask whether the defendant “deserves mercy beyond a reasonable doubt” or “more-likely-than-not deserves it” because moral questions are not “factual.” Instead, moral determinations are highly subjective “value calls” to which concepts of doubt and certainty do not intelligibly apply.

Implicit in these rulings is a controversial view of the nature of moral judgment. This Article traces the contours of the view and argues that it is out of step with the way the broader public thinks about morality and fails to address the issues defendants have raised. Courts should avoid wading into such controversial waters for two reasons. First, the judiciary has historically maintained neutrality on issues of significant public concern. Second, even if moral determinations are not factual, applying a standard of proof to at least some moral decisions at sentencing would change the outcome of the sentencer’s deliberations, and improve the legitimacy of the legal system. For the “reasonableness” of doubt depends on context; and moral questions—"are you certain the defendant deserves death?”—make salient the stakes relative to which a person should decide what to believe about ordinary empirical matters. On the resulting view, reasonable doubt in the final moral analysis is not just intelligible, but essential for correcting a bias in the structure of the bifurcated criminal trial that systematically disadvantages defendants: the tendency for de-contextualized “factual findings” in the guilt phase to control outcomes at sentencing.

Keywords: Moral judgment, Standards of proof, Sentencing, Questions of fact, Reasonable doubt, Metaethics

Suggested Citation

Atiq, Emad H., Reasonable Moral Doubt (March 12, 2022). 97 N.Y.U. Law Review (2022 Forthcoming), Cornell Legal Studies Research Paper No. 22-16, Available at SSRN: https://ssrn.com/abstract=4056223 or http://dx.doi.org/10.2139/ssrn.4056223

Emad H. Atiq (Contact Author)

Cornell University - Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

Cornell University - Sage School of Philosophy ( email )

218 Goldwin Smith Hall
Ithaca, NY 14853-3201
United States

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