Abstract
Willful blindness is not an appropriate substitute for knowledge in crimes that require a mens rea of knowledge because an actor who contrives his own ignorance is only sometimes as culpable as a knowing actor. This paper begins with the assumption that the classic willfully blind actor—the drug courier—is culpable. If so, any plausible account of willful blindness must provide criteria that find this actor culpable. This paper then offers two limiting cases: a criminal defense lawyer defending a client he suspects of perjury and a pain doctor who suspects his patient may be lying about her pain. The paper argues that each of these actors is justified in cultivating ignorance about his client’s or patient’s truthfulness. If this is right, then a good theory of willful blindness must distinguish these cases. The article argues that neither Husak & Callender’s motivation-based account of willful blindness nor the recklessness account is able to do so. The paper proposes the following alternative: contrived ignorance constitutes culpable blindness when the decision to remain blind or to cultivate blindness is not itself justified. This Justification approach meshes with our intuitions about willfully blind drug couriers as well as willfully blind lawyers and doctors.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
These instructions provide: “The Government can complete their burden of proof by proving, beyond a reasonable doubt, that if the defendant was not actually aware that there was marijuana in the in the vehicle he was driving when he entered the United States his ignorance in that regard was solely and entirely a result of his having made a conscious purpose to disregard the nature of that which was in the vehicle, with a conscious purpose to avoid learning the truth.” (United States v. Jewell 1976).
See Luban (1999).
Knowingly. A person acts knowingly with respect to a material element of an offense when:
-
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
-
(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result. Model Penal Code, Sect. 2.02(2)(b).
-
In Jewell, this actually might have required slightly more than simply opening a case. The drugs were in a compartment in the truck that was sealed and somewhat concealed (United States v. Jewell 1976).
The MPC further provides: “The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.” Id.
The Rules provide that the lawyer may refuse to put on testimony that she believes is false with one exception. The lawyer for a criminal defendant may not refuse to offer testimony by her client that she believes is false.
‘Knowingly,’ ‘known,’ or ‘knows’ denotes actual knowledge of a fact in question. A Person’s knowledge may be inferred from circumstances.” Id.
I do not present data to support these claims here. For the purposes of this Article, it does not matter whether this case is representative of real cases or is instead a hypothetical. Those interested in the topic can consult Hellman (2009).
Husak and Callender define the “availability condition” in the following way: “If a defendant has the means to learn the truth (or to gather more evidence) about the significance of his actions and is aware of these means, his failure to act on these suspicions is a plain sign of wilful ignorance” (Husak and Callender 1994, p. 40).
In a recent article, Doug Husak challenges the view that intentions are not relevant to moral permissibility in part by showing the dramatic and untenable consequences of such a view for criminal law (Husak 2008). Alec Walen responds that Husak has overstated the commitment that moral philosophers have to the irrelevance of intentions. In Walen’s view, most moral philosophers believe that intentions do not have the moral force that the Doctrine of Double Effect alleges (Walen 2008).
I am grateful to Alec Walen for pressing this objection.
Alexander, Ferzan and Morse’s conception of recklessness fuses these two time periods, and indeed all previous time periods, in its analysis of a present decision. They claim that “in ordinary recklessness cases, when we assess the actor’s reasons for imposing the risk, we are also implicitly assessing his reasons for not investigating the danger further” (Alexander et al. 2009).
These are the sorts of factors identified by Stroud as making up the epistemic partiality of friendship (Stroud 2006).
It is not the fact that the friend has a good desire that matters. If it did, the Justification approach would slide back into the subjective, motivation-based account proposed by Husak & Callender. Rather, it is that friendship provides a justification for blindness that financial gain does not. I emphasize the desires of each only to explain how their judgment becomes clouded. An anonymous reviewer suggested the following hypothetical, which will clarify my view.
Consider the wife who is asked by her husband to transport a package from a drug-producing country into the U.S. Years before, her husband had dabbled in drug trafficking, but has been clean and sober for nearly a decade. If the wife investigates the contents of the package, she will undo years of work rebuilding trust in her husband. Ex hypothesi, the reasons the wife has to remain ignorant outweigh the reasons to investigate, all things considered. As such, the wife would not be culpably blind on the author’s account. Yet, what if the reason why the wife failed to investigate was not due to ‘epistemtic partiality’ or a desire to respect the trust in her marriage/husband? What if, instead, the reason she didn’t investigate was because she thought it would be exciting to perhaps be a drug courier and she thought that if she knew for sure that the package contained drugs, she would lose her nerve and fail to transport the package?
While the reviewer thinks this examples shows that motives do matter, I think it shows the opposite. In both cases, the wife has a good reason not to investigate. If so, she acts rightly whether or not this reason actually motivates her action. If so, she ought not to be held criminally liable. While the second wife is surely less virtuous than the first, so too is the person who pays her taxes for fear of getting caught as compared to someone who pays because she believes it is her moral obligation to contribute to the common good. Both tax payers act rightly and so do both spouses.
This result follows only if the goods of friendship are important such that, all things considered, the actor is justified. In this paper, I cannot provide an argument for this assumption. I mean here only to offer what I take to be plausible examples of cases where there are genuinely good reasons for blindness.
Hurwitz’s lawyers argued to the trial court that this divergence from the classical notion of willful blindness made the giving of such instructions inappropriate: “[w]illful blindness requires affirmative steps to avoid knowledge … not merely the defendant’s failure to see that which is ‘obvious’” (Defendant’s Willful Blindness Brief 2007).
In that case, the government argued that the willful blindness instruction was appropriate because Hurwitz “repeatedly, and deliberately, ignored the obvious implications of what he learned about his patients” (Government’s Willful Blindness Brief 2007).
References
ABA Model Rules of Professional Conduct 3.3.
Alexander, L., Ferzan, K., & Morse, S. (2009). Crime and culpability: A theory of criminal law. Cambridge: Cambridge University Press.
Applbaum, A. I. (1999). Ethics for adversaries: The morality of roles in public and professional life. Princeton, NJ: Princeton University Press.
Brown, W. A. (2007). Finessing the fine line between pain management and opiod addiction. Psychiatric Times, 3(2). Accessed June 2, 2009, from http://www.psychiatrictimes.com/display/article/10168/57001?pageNumber=2.
Defendant’s Reply Memorandum Concerning Willful Blindness and Theory-of-Defense Instructions, United States v. Hurwitz, No. 1:03CR467 (E.D. Va. Mar. 26, 2007).
Freedman, M. (2008). Getting honest about client perjury. Georgetown Journal of Legal Ethics, 21, 133–163.
Government’s Memorandum Concerning Willful Blindness and Theory-of-Defense Instructions, United States v. Hurwitz, No. 1:03CR467 (E.D. Va. Mar. 26, 2007).
Hellman, D. (2009). Prosecuting doctors for trusting patients. George Mason Law Review, 16(3), 701–745.
Husak, D. (2008). The costs to criminal theory of supposing that intentions are irrelevant to permissibility. Criminal Law and Philosophy, 3, 51–70.
Husak, D., & Callender, C. (1994). Willful ignorance, knowledge, and the “equal culpability” thesis: A study of the deeper significance of the principle of legality. Wisconsin Law Review, 1994, 29–69.
Keller, S. (2004). Friendship and belief. Philosophical Papers, 33(3), 329–351.
Luban, D. (1988). Lawyers and justice: An ethical study. Princeton, NJ: Princeton University Press.
Luban, D. (1999). Contrived ignorance. Georgetown Law Journal, 87, 957–980.
Model Penal Cond, Sect. 2.02 (2)(b).
Robins, I. (1990). The ostrich instruction: Deliberate ignorance as a criminal mens rea. Journal of Criminal Law & Criminology, 81(2), 191–234.
Stroud, S. (2006). Epistemic partiality in friendship. Ethics, 116, 498–524.
United States v. Hurwitz, Criminal case 1:03CR467 (2007).
United States v. Hurwitz, 459 F.3d 463 (4th Cir. 2006).
United States v. Jewell, 532 F.2d 697 (9th Cir. 1976).
United States v. Katz, 445 F.3d. 1023 (8th Cir. 2006).
United States v. McIver, 470 F.3d 550 (4th Cir. 2006).
Walen, A. (2008). Comments on Doug Husak: The low cost of recognizing (and of ignoring) the limited relevance of intentions to permissibility. Criminal Law and Philosophy, 3, 71–78.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Hellman, D. Willfully Blind for Good Reason. Criminal Law, Philosophy 3, 301–316 (2009). https://doi.org/10.1007/s11572-009-9080-y
Received:
Accepted:
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11572-009-9080-y