Abstract
Under the “Willful Ignorance Principle,” a defendant is guilty of a crime requiring knowledge he lacks provided he is ignorant thanks to having earlier omitted inquiry. In this paper, I offer a novel justification of this principle through application of the theory that knowledge matters to culpability because of how the knowing action manifests the agent’s failure to grant sufficient weight to other people’s interests. I show that, under a simple formal model that supports this theory, omitting inquiry manifests precisely the same degree of disregard of others’ interests as manifested in knowingly acting criminally. Several surprising implications of this view are described, including that when the agent’s method of inquiry has a non-zero false positive rate, his omission of inquiry does not make the same contribution to his culpability as knowledge, while it does, by contrast, when the false negative rate is non-zero.
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Notes
United States v. Heredia (483 F.3d 913).
Both the description offered here of the apparent conflict between willful ignorance doctrine and the Principle of Legality, and the explanation for why the conflict is only apparent, follow Douglas Husak and Craig Callender (1994), “Wilful Ignorance, Knowledge and the ‘Equal Culpability Thesis’: A Study in the Deeper Significance of the Principle of Legality,” Wisconsin Law Review 1: 29–68.
For the same view expounded in a different way, see Gideon Yaffe (2012), “Intoxication, Recklessness, and Negligence,” Ohio State Journal of Criminal Law 9(2): 545–582. See also Gideon Yaffe, The Age of Culpability: Children and the Nature of Criminal Responsibility, forthcoming, Oxford University Press.
See United States v. Willis, 277 F.3d 1026, 1032 (8th Cir. 2002); United States v. Delreal-Ordones, 213 F.3d 1263, 1268 (10th Cir. 2000); United States v. Puche, 350 F.3d 1137, 1149 (11th Cir. 2003).
Such a requirement is explicitly adopted by the Supreme Court in the most recent willful ignorance case to come before it. See Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060.
See Model Penal Code §2.02(7).
The Willful Ignorance Principle has always been important—plenty of people explicitly omit looking into the parcels that they are paid to carry across borders—but its prominence may grow in light of a recent Supreme Court case. In Rosemond v. United States (134 S.Ct. 1240), the Court ruled that knowledge about one’s confederates often suffices for complicity with the confederates’ crimes in circumstances in which many courts previously demanded some stronger commitment on the part of the defendant, such as that involved in intent. Under the Court’s ruling, Rosemond did not need to intend that one of the other people involved in their joint drug deal have or use a gun to be complicit in the gun crime that person perpetrated; it was enough that he knew that the confederate had the gun, or knew that he would use it. In light of this, the Willful Ignorance Principle provides a powerful prosecutorial tool: it allows the conviction of accomplices who were ignorant of various facts about those they aid provided that they failed to inquire about those facts earlier. If Rosemond failed to know that his confederate had a gun, he could still be complicit in the gun crime provided that he was ignorant due to a failure to inquire earlier.
Whenever we make knowledge necessary for criminal liability, the Willful Ignorance Principle licenses criminal liability also for the willfully ignorant. And so expansion of accomplice liability to a class of knowing agents is an expansion also to a class of ignorant agents, namely those who are ignorant thanks to the fact that they failed to inquire. Given the ubiquity of motives for not inquiring about those with whom we interact and aid—there are powerful social norms supporting respect for the privacy of our peers and associates, not to mention deferential presumptions regarding the good wills of our mothers and aunts—we can expect the Rosemond decision, together with the Willful Ignorance Principle, to result in substantial expansion of complicity liability. Imagine, for instance, that Heredia had not been driving the car, but had been a passenger instead. The Rosemond decision, together with the Willful Ignorance Principle, would imply that Heredia, in that hypothetical case, has the mental state of an accomplice to the importing of marijuana. In fact, if a prosecutor decided to pursue it, Heredia’s daughters might be charged with such a crime (most likely in juvenile court), provided that they too developed suspicions that they did not pursue prior to taking the ride across the border.
I limit myself here to the bearing of cognitive mental state on culpability. I believe that volitional mental states, such as intention, bear on culpability for related but different reasons. For some albeit incomplete discussion, see Gideon Yaffe (2004), “Conditional Intent and Mens Rea,” Legal Theory 10(4): 273–310; Gideon Yaffe (2010), Attempts: In the Philosophy of Action and the Criminal Law, Oxford: Oxford University Press, especially Chapters 1 and 2; Gideon Yaffe (2014), “Criminal Attempts,” The Yale Law Journal 124(1): 92–156.
No weight is being placed here on the idea of “harm.” It is simply a less cumbersome term than “violation of a legally protected interest.” For our purposes, for instance, importation of 350 lb of marijuana will count as a “harm,” even if nobody is actually harmed by it.
For more about very closely related ideas, see, as a start, John Fischer and Mark Ravizza (1998), Responsibility and Control: A Theory of Moral Responsibility, Cambridge: Cambridge University Press; Gideon Yaffe (2012), “Intoxication, Recklessness, and Negligence,” Ohio State Journal of Criminal Law 9(2): 545–582; Gideon Yaffe (2010), Attempts: In the Philosophy of Action and the Criminal Law, Oxford: Oxford University Press; Peter Westen (2006), “An Attitudinal Theory of Excuse,” Law and Philosophy 25(3): 289–375; Thomas Scanlon (2000), What We Owe to Each Other, Cambridge: Harvard University Press; Pamela Hieronymi (2006), “Controlling Attitudes,” Pacific Philosophical Quarterly 87(1): 45–74; Angela Smith (2005), “Responsibility for Attitudes: Activity and Passivity in Mental Life,” Ethics 115(2): 236–271.
The idea of social preference is intended to capture at least three distinct facts about an agent. An agent who cares less about others than he ought to might take the fact that his act will cause harm to others to give him no reason whatsoever to refrain from it. That would be a failure to properly recognize legal reasons for action. Or he might recognize that that fact provides a reason to refrain, but grant less reason-giving weight to that fact that he ought to. This would be a failure of weighing. Even if he does grant proper weight to the fact that an act he is considering causes harm to others, he might not respond to it in his deliberations as he ought. This is a failure of response. For our purposes here, this tri-partite distinction, and the subsequent variation in possible cases one finds, need not detain us.
According to the Hand Formula, a tort defendant’s failure to take a precaution against plaintiff injury is “unreasonable” provided that the burden (B) of taking the precaution is less than the expected loss to the plaintiff thanks to such failure (PL, or the product of the probability of the loss and its magnitude).
I developed this idea in discussion with Antonio Rangel. I have presented it and considered its implications for mens rea also, in Gideon Yaffe (2012), “Intoxication, Recklessness, and Negligence,” Ohio State Journal of Criminal Law 9(2): 545–582.
Attentive readers will notice that a “+” in the Value Equation has become a “−” here. This is because H is a positive value—the magnitude of a harm—and it is assumed, consistent with the lenity constraint, that ceteris paribus D takes the prospect of H’s occurrence to count against performance of the action rather than for it.
The line of thought here intersects with the view of omission I presented in Gideon Yaffe (2016), “In Defense of Criminal Possession,” Criminal Law and Philosophy 10(3): 441–471.
In Gideon Yaffe (2012), “Intoxication, Recklessness, and Negligence,” Ohio State Journal of Criminal Law 9(1): 545–582, I make this point in support of the “substantiality” prong of the Model Penal Code’s definition of “recklessness”.
Alex Sarch has suggested that a duty to inquire, shirked by the omission of inquiry, is essential for the safe application of the Willful Ignorance Principle. See Alex Sarch (2014), “Willful Ignorance, Culpability and the Criminal Law,” St. John’s Law Review 88(4): 1023–1101. However, if my argument in this paper succeeds, Sarch is mistaken. A case can be core, even taking into consideration the various caveats discussed above, without the defendant having any duty to inquire. Or, to put the point another way, an agent’s failure to inquire can be explicable by appeal to the way in which inquiry would put the benefit of action at risk without the agent having any duty to inquire.
Deborah Hellman (2009), “Willfully Blind for Good Reason,” Criminal Law and Philosophy 3(3): 301–316, makes the point that actors who omit inquiry in order to fulfill an obligation not to inquire are wrongly taken to be as culpable as the knowing. What is provided here can be taken as an explanation for why this is so.
The point here strongly echoes ideas presented in R. A. Duff (2007), Answering for Crime: Responsibility and Liability in the Criminal Law, Oxford: Hart Publishing.
David Luban (1999), “Contrived Ignorance,” Georgetown Law Review 87: 957–980.
This material has been presented in several places and I received very valuable comments on each occasion. Audiences at Fordham, Georgia State University, University of California at Irvine, University of Connecticut, University of Michigan, and Yale were all very helpful. Thanks are particularly owed to Anne Dailey, Debby Denno, Sharon Dolovich, Bill Edmonson, Jeff Helmreich, Issa Kohler-Hausmann, David Manley, Tracey Meares, Gabe Mendlow, Eddy Nahmias, Jacob Ross, Alex Sarch, and Alan Schwartz.
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Yaffe, G. The Point of Mens Rea: The Case of Willful Ignorance. Criminal Law, Philosophy 12, 19–44 (2018). https://doi.org/10.1007/s11572-016-9408-3
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DOI: https://doi.org/10.1007/s11572-016-9408-3