The locus of wrongdoing
A natural question arises as to whether the blameworthiness of willful ignorance comes from the screening actions or from the unwitting misdeeds. In the criminal law, the answer is simple.
The actor will be convicted for knowingly committing the unwitting misdeed, not for willfully blinding himself. He could hardly be convicted for the screening actions, which most likely are perfectly lawful. There is nothing criminal about not looking in a suitcase.Outside the criminal law, matters are not so straightforward. Screening oneself from knowledge can be viewed on analogy with drinking oneself into oblivion. If a driver injures someone while he is too drunk to know what he is doing, it may be unfair to blame him for driving poorly. His pickled synapses don’t permit him to drive better, or even to realize that he is too drunk to drive. But it seems perfectly appropriate to blame him for drinking himself into oblivion. By the same token, one might argue that if an executive who screens herself from guilty knowledge then unwittingly sets performance goals that her subordinates cannot achieve lawfully, she shouldn’t really be blamed for instigating their crimes. She should be blamed for discouraging them from telling her the truth. She wrongfully screened herself from guilty knowledge. As people sometimes say to one another in everyday life, “I don’t blame you for what you did, but I do blame you for getting into the situation in the first place.” This is a theory of willful blindness as a form of culpable ignorance - very literally, ignorance that is itself blameworthy.
On a culpable-ignorance theory, the screening actions bear the primary blame. What about the unwitting misdeeds? According to Holly Smith, who has published an admirable analysis of culpable ignorance, they should be regarded as mere consequences ensuing from the screening acts, consequences over which the actor has ceded control.
He has done this by screening himself from the knowledge that would give him a reason to avoid an otherwise blameless action, the unwitting misdeed.Smith suggests that whether we blame him for the unwitting misdeed as well as for the screening action depends entirely on whether we blame people for bad consequences of their actions, even when they have no control over those consequences.[426] The law is inconsistent on this issue. We do punish completed crimes more severely than failed attempts, even if the difference between success and failure was out of the criminal’s control, but we don’t typically punish criminals for the remote consequences of their crimes. Indeed, this is a well-known paradox in criminal law. Generations of theorists have labored to little avail trying to devise a theory to explain why bad consequences, not merely bad intentions, matter.[427]
Fortunately, we need not enter this debate, because Smith is mistaken in treating unwitting misdeeds as brute consequences caused by the screening actions. In effect, Smith treats the actor at the time of the unwitting misdeeds as if he were a different person from the actor at the time of the screening actions.[428] The “screener” becomes something akin to a manipulative criminal who causes an innocent agent - his own later self - to commit a crime. In such cases, the principal rightly gets all the blame, and the innocent agent gets none.[429]
But this analysis overlooks the important fact that the later self is not entirely innocent. The later self at least knows that he performed the screening actions at an earlier time. He is on notice that the sword of potential wrongdoing dangles over his head. The later self has an opportunity to reconsider and abandon a course of action that might turn out to be an unwitting misdeed. If he persists in acting, he shares in the blame. The more probable he believes the misdeed is, the more he shares in the blame.
Thus, the right analogue is not that of a guilty principal (the earlier self) and an innocent agent (the later self) whose unwitting misdeed is a causal consequence of the earlier self’s screening actions. The right analogue is that of a guilty principal and an agent who is at least reckless. The analogy, in other words, is to complicity, not causation - remembering, of course, that the complicitous principal and agent are the same person at two different times.Just as the Model Penal Code and the waiver theory err by focusing attention entirely on the unwitting misdeed (performed by the later self), the culpable-ignorance theory errs by focusing attention entirely on the screening actions (performed by the earlier self). To do full justice to cases of contrived ignorance, we need some way of combining the two. Here, unfortunately, the analogy to a guilty principal and a reckless agent doesn’t help. There is no formula for combining the guilt of a principal with that of an agent to determine the guilt of both together, and thus there is no formula for assessing an actor’s guilt by combining the guilt of the earlier and later selves. We need some alternative approach.