Conclusion

The conclusion of Criminally Ignorant: Why the Law Pretends We Know What We Don’t provides an overview of the main takeaways from the book. At its broadest, this is a book about a common legal fiction: the criminal law’s practice of pretending we know what we don’t. Maybe one instinctively feels scandalized by legal fictions. It’s natural to want the law to be honest and accurate. Nonetheless, this book has tried to give reasons not to be so worried and actually get on board with the kind of legal fiction at issue here. The book has argued that equal culpability imputation involves a justified fiction that promotes valuable aims. At least when properly constrained, it is justified for the law to treat you as if you had certain culpability-relevant mental states (like knowledge of inculpatory facts or awareness of risks) that you didn’t literally possess. What justifies it? The same purposes the criminal law generally serves: protecting our core interests, rights, and values.

What Is Criminal Culpability?

Chapter 2 aims to elucidate the concept of criminal culpability. Since the project of the book is to analyze, evaluate, and ultimately defend certain criminal law doctrines that impute mental states on the basis of equal culpability, the chapter explains what criminal culpability is. Chapter 2 presents the author’s theory of culpability and aims to show why it offers an attractive way to think about this concept. The theory falls squarely within the insufficient regard tradition, but the chapter fleshes out details in new ways to strengthen the theory and solve certain problems for this sort of position. The chapter is divided into two main parts. The first is ecumenical and aims to bring as many into the broad church of the insufficient regard theory as possible. The chapter does this by highlighting the explanatory power of the author’s version of the theory (particularly the requirement to manifest bad attitudes in action before criminal liability attaches and the criminal law’s general disinterest in motives and other unmanifested mental states). The chapter also shows how the theory can accommodate both sides in certain controversies about the criminal law. The second half of the chapter adopts a normative stance and provides arguments for how these controversies should be resolved. This insufficient regard theory is used as the basis for the arguments going forward in the book.

Iterated Reckless Ignorance as a Substitute for Knowledge

Previous chapters have been concerned mainly with willful ignorance—which, paradigmatically, is to violate the duty to reasonably inform oneself about a suspected inculpatory proposition with the intention of preserving one’s ignorance. But one also might fail to inform oneself about one’s suspicions with other mens rea: one might do so while reckless or negligent with respect to the fact that one will remain in ignorance. Such lesser breaches of one’s investigatory duties can be culpable too. However, the existing willful ignorance doctrine does not reach these lesser forms of culpable ignorance. That is a problem. This chapter argues not only that it would be good for courts to go beyond the existing willful ignorance doctrine, but that they are committed to doing so. The law allows willful ignorance to substitute for knowledge on the theory that acting with the former can be culpable to the same degree and in the same way as acting with the latter. Accordingly, the law is committed also to allowing certain forms of egregious nonwillful ignorance—most importantly, reckless ignorance—to substitute for knowledge, provided the conditions of equal culpability are met.

Introduction

This introduction outlines the general questions to be investigated in Criminally Ignorant: Why the Law Pretends We Know What We Don’t and provides a roadmap of the arguments to come. The overarching aim of the book is to defend a theory of when and why the criminal law may legitimately impute mental states on the basis of equal culpability. This helps place the existing willful ignorance doctrine on a more secure normative foundation, while at the same time revealing the pressing need for doctrinal reforms. The overall project is not limited to willful ignorance, however. The normative idea behind the willful ignorance doctrine—that we may impute missing mental states to defendants on equal culpability grounds—is surprisingly fertile, and, if taken seriously, grounds an array of further imputation principles. The book thus seeks to develop a theory that places the idea of equal culpability imputation on solid theoretical footing, while also demarcating its proper boundaries.

Corporations Keeping Themselves in the Dark

Sometimes corporations keep themselves in the dark. This chapter argues that a corporation can incur culpability when its employees block themselves or others within the corporation from obtaining knowledge they should have had. The chapter argues this can provide an equal culpability rationale for imputing knowledge to the corporation itself. One obvious way this could happen is through willful ignorance by the employees. Beyond this, knowledge can be imputed to the corporation when employees culpably prevent others in the company from obtaining information they should have had. Determining when corporations can be deemed to know what their employees kept themselves or others from learning is the task of this chapter. The chapter argues that both these kinds of interference with the information flow within the corporation can, in extreme cases, ground the imputation of knowledge to the corporation. Perhaps controversially, the chapter argues this can sometimes be done even for knowledge that no individual within the company actually possessed. The chapter considers how the willful ignorance doctrine overlaps with the collective knowledge doctrine. Roughly, this rule permits different pieces of information known separately by various employees in the corporation to be stitched together to impute the aggregate of this knowledge to the corporation. The collective knowledge doctrine is best seen as an equal culpability imputation principle. Thus, the same rationale that underlies the willful ignorance doctrine also supports applying the collective knowledge doctrine at least some of the time. Nonetheless, the two doctrines come apart in places. Hence, the two doctrines at bottom are different applications of the same normative principle: equal culpability imputation.

Subwillful Motivated Ignorance

Chapter 7 dealt with the difficulties for equal culpability substitution at the top end of the mens rea hierarchy. The aim of Chapter 8 is to probe the limits of equal culpability substitution at the low end of the hierarchy. Specifically, the chapter investigates whether some forms of ignorance that fall outside the legal definitions of willful ignorance and recklessness, but fit within negligence, nonetheless might be sufficiently culpable to substitute for higher mental states. The chapter argues that there is at least one category of such subwillful motivated ignorance for which this is true. The same reasoning that underwrites the willful ignorance doctrine suggests that one also should not be able to escape liability by deliberately preventing oneself from forming the suspicions one should have had. However, the chapter also argues that some forms of subwillful motivated ignorance are too difficult to distinguish from lesser varieties of negligence to be capable of substituting for recklessness. Thus, this chapter aims to demarcate the lower boundary on equal culpability substitution.

Substituting Willful Ignorance for Purpose?

Chapter 6 argued for moving beyond the existing willful ignorance doctrine by allowing some forms of nonwillful ignorance to substitute for knowledge. But where does it end? Chapter 7 considers moving beyond the willful ignorance doctrine in a different direction—by allowing willful ignorance to substitute for purpose—but argues that this doctrinal expansion is not justified. Acting with purpose to bring about a bad state of affairs will, all else equal, always be more culpable (or culpable in a different way) than doing so in willful ignorance of whether this state of affairs will result. This precludes willful ignorance of a proposition from substituting for purpose to make it true. Thus, this chapter aims to get clearer on the limits of equal culpability imputation.

The Scope of the Willful Ignorance Doctrine (I)

Determining when the equal culpability thesis holds sets the boundaries in which the willful ignorance doctrine is to be applied. Chapter 3 thus considers the best existing attempts to specify the conditions in which the equal culpability thesis holds, but proceeds to argue that none succeeds. Still, each failure is instructive. First, the chapter argues against the unrestricted equal culpability thesis. Not all willful ignorance, it turns out, is as culpable as the analogous knowing misconduct. Then the chapter argues against the three leading attempts to restrict the thesis. Section II argues against a restriction that appeals to bad motives, while Section III argues against a common counterfactual restriction (according to which willful ignorance is as culpable as knowing misconduct when one would do the actus reus even with knowledge). The latter proposal fails since criminal culpability does not depend on considerations about counterfactual conduct or one’s willingness to misbehave. Finally, Section IV discusses a third restriction, offered by Deborah Hellman, which asks whether the decision to remain in ignorance was itself justified. This version of the thesis is on the right track, but still requires refinement in important ways.

Criminal Law Basics and the Willful Ignorance Doctrine

Chapter 1 sets the stage. The author’s starting point is the willful ignorance doctrine, since it is the source from which the author will eventually extract his general theory of equal culpability mental state imputation. After explaining core criminal law concepts (particularly the mens rea concepts), the author introduces the willful ignorance doctrine, its history, and the normative claim it is premised on—namely, the equal culpability thesis. Situating this doctrine in the broader criminal law context reveals the questions to be tackled in the book, and the chapter ends by indicating the sorts of answers the author will go on to develop.

The Scope of the Willful Ignorance Doctrine (II)

This chapter argues that willful ignorance involves breaching a duty to reasonably inform oneself, and the equal culpability thesis holds when one breaches it in a sufficiently serious way before doing the actus reus. This chapter thus offers a limited defense of the equal culpability thesis. The chapter argues that the willful ignorance doctrine requires reform. To remain faithful to the courts’ “traditional rationale” for this doctrine, knowledge should not be imputed in just any case of willful ignorance (as many courts allow), but only when one’s willful ignorance rendered one’s conduct as culpable as the analogous knowing wrong. Identifying a defensible version of the equal culpability thesis thus places constraints on the proper application of the willful ignorance doctrine. The chapter then discusses how to formulate workable willful ignorance jury instructions that also lower the risk of injustice.