The Model Penal Code approach

The alternative to treating willful blindness as negligence is to find an actual, occurrent mental state to which willful blindness corresponds. The drafters of the Model Penal Code simply abandoned the doctrine that willful blindness can substitute for knowledge.

Unfortunately, this proposal raises more problems than it solves. First of all, being aware that something is highly probable simply isn’t the same as actually knowing it. I don’t mean that knowledge implies certainty rather than probability. Knowledge claims need not be infallible. But knowledge does require belief - I can hardly be said to know something if I don’t even believe it - whereas awareness that something is highly probable may stop short of the inferential leap into belief. We can see this by comparing the two statements “I know X but I don’t believe X” and “I’m aware that X is highly probable, but I don’t believe X.” The first of these verges on performative self-contradiction - an observation that philosophers call Moore’s Paradox - while the second does not.

This difference between awareness of high probability and knowledge has not passed unnoticed by commentators, who draw various conclusions from it. One recommends cutting the Gordian knot by defining knowledge of a fact as awareness that it is highly probable.^[405] That solves the problem, but only by converting the word “knowledge” into a legal term of art. Departing from the everyday meaning of words is seldom a good idea in law, and never more so than in criminal law, in which substituting eccentric meanings for words risks punishing us without fair notice.

The trouble with all these proposals is that they are not really about willful ignorance at all. Instead, they change the subject. The focus in a willful-ignorance case is on whether the actor deliberately avoided guilty knowledge. The inquiry is about whatever steps the actor took to ward off knowledge prior to the misdeed. By contrast, the Model Penal Code focuses on how certain the actor was about a fact. The inquiry is about the actor’s subjective state at the moment of the misdeed. These are completely dif­ferent issues. An actor can be aware of the high probability of a fact whether or not she took steps to avoid knowing it, and an actor can screen herself from knowledge of facts regardless of whether their probability is high or low.^[407]

In practice, to be sure, the Model Penal Code standard provides a ser­viceable substitute for willful ignorance. That is because in most cases of willful ignorance the defendant will be aware of the high probability of the fact that he has hidden from himself, so that the Model Penal Code doctrine succeeds in convicting most of the miscreants who deserve it. It convicts the drug mule who deliberately refrains from looking in the satchel he’s deli­vering. It convicts the corporate manager who doesn’t ask why his overseas salesman needs a million in cash for “commissions.” And it just may convict the lawyer who clamps his hands over his ears and runs out of the office because he doesn’t want to stop closing loans for crooked clients.^[408]

Unfortunately, it does not convict the high-ranking executive who delib­erately, skillfully, and self-consciously fashions an entire structure of denia­bility, a reporting system in which for years at a time guilty knowledge never flows upstream.

How does a structure of deniability work? It goes like this. The CEO lets everyone know that he hates to micro-manage. He is interested only in the big picture of whether goals are met, not in details about how they are met. It goes without saying (and I do mean without saying) that the CEO is to be sheltered from bad news, especially knowledge that anyone in the organi­zation has cut legal corners. Like ambitious subordinates everywhere, his management team tries to anticipate his wishes and, in the familiar corporate adage, “follow them in advance” so they won’t actually have to be spoken aloud. Managers too obtuse to understand this are said to lack initiative, and their careers are short. Prominent among the unspoken directives is the first commandment: Thou shalt maintain thy boss’s deniability.^[409]

For public consumption, the organization sets up an elaborate account­ability mechanism, requiring employees to report in writing anything they observe that is illegal, unethical, or unsafe. In practice, however, employees who follow these instructions find themselves reassigned to the company’s North Dakota Wind Chill Test Facility. Old-timers explain to newcomers that the purpose of the reporting mechanism is not to be utilized, thereby ensuring that only the lowest-level employees - those who fail to file their written reports - will bear the blame if anything goes wrong. In fact, management sees little advantage in an accurate system for tracking responsibility within the corporation. Too many managers advance by getting promoted to new divisions before the chickens come home to roost at the old divisions. This is called “outrunning your mistakes.”^[410] The last thing they want is a paper trail.

Few subjects are as fascinating, important, or hard to conceptualize as the many and subtle ways in which organizations screen individuals within them from liability and dissolve employees’ sense of personal accountability. In my view, concepts of collective or corporate responsibility are poor sub­stitutes for individual responsibility. For one thing, blaming the collective may let individuals off the hook too easily. It’s not for nothing that the Nuremberg Charter made individual criminal liability the linchpin of its approach to state-sponsored crime. At the same time, collectivizing guilt may blame innocent employees. Last but not least, collective responsibility con­cepts teeter on the brink of quack metaphysics or mystical science fiction, treating groups of people as single minds. No better illustration of this can be found than the collective knowledge doctrine in federal criminal law.^[411] According to this doctrine, a corporation “knows” the sum of what all of its employees know, whether they communicate with each other or not. The doctrine treats employees as synapses in the nonexistent brain of a legal fiction.

How, then, can the law apportion individual responsibility within the organizational context, where too many involved individuals act at a distance and each knows too little? In my view, the most promising approach is through the concept of complicity - aiding and abetting - and the concept of willful ignorance. Supervisors implicitly or explicitly encourage their subordinates to meet their targets by any means necessary. That’s abetting. Supervisors provide assistance and resources. That’s aiding. And supervisors structure the organization to preserve their own deniability. That’s willful ignorance. Willful ignorance is a concept that applies almost uniquely to crimes committed by group enterprises. Of course, a good whodunit author can devise clever scenarios in which a lone gunman contrives his own ignorance at the moment he pulls the trigger.

Together, the concepts of aiding, abetting, and willful ignorance enable us to understand the dimensions of supervisory wrongdoing - the wrongdoing C. S. Lewis had in mind when he wrote about evils committed by “quiet men with white collars and cut fingernails and smooth-shaven cheeks who do not need to raise their voice.”^[412] In that case, however, the Model Penal Code substitute for the willful ignorance doctrine should be rejected because it is simply too narrow for the task at hand.

In sum, the common law’s equation of willful ignorance with knowledge leaves us in a dilemma: is willful ignorance a guilty mental state, or the violation of a duty to know? The Model Penal Code employs a knowledge concept (awareness of a high probability) rather than mere negligence. But not only is the Model Penal Code standard quite distinct from willful ignorance, it is also too weak for organizational settings. The negligence theory succeeds in explaining how mere ignorance can be culpable, as the Model Penal Code does not. But the negligence theory employs a duty-to- know concept less stringent than knowledge, and too demanding for real life.