The structure of contrived ignorance

At this point, I want to look more carefully at the structure of contrived ignorance. The crucial point is that it involves not one set of actions, but two. The first consists of the actions or omissions by which an actor shields herself from unwanted knowledge.

Once we draw this distinction, several interesting points emerge. The first is that screening actions, like unwitting misdeeds, can be performed with various degrees of mens rea. If we use words carefully, the word “willful” modifying “ignorance” should describe the mens rea with which an actor contrives her own ignorance. That leaves open the possibility that ignorance can be contrived at other levels of culpability. A political leader or corporate executive who intentionally sets up an organizational structure designed to maintain his deniability is willfully ignorant. His partner, who didn’t set up the structure but is perfectly happy to benefit from it, may not be willfully ignorant, but is nonetheless knowingly ignorant. Their successor, who decides to run the risk of keeping the structure in place, may well be recklessly ignorant. And Reckless’s dimwitted partner Feckless, who never even won­ders why their predecessors are taking unpaid leave at Club Fed, is negli­gently ignorant. None of these levels of culpability, except willful ignorance, is a category recognized by the law, even though the hierarchy of mental states (willful, knowing, reckless, negligent) is entirely familiar.

Ignoring the distinction between screening actions and unwitting misdeeds can lead to an overly simple theory of contrived ignorance. The Model Penal Code approach, which we examined earlier, is a perfect example. It focuses entirely on the level of awareness accompanying the unwitting misdeed, and completely ignores the screening actions. This leads to particularly trouble­some results when the screening actions succeed completely in shielding the actor from guilty knowledge, as in our corporate cases. The actor lacks awareness of the high probability of guilty facts, so by the lights of the Model Penal Code she is off the hook - precisely because her contrived ignorance succeeded so well!

Ignoring the distinctions among the different species of contrived ignor­ance is a more subtle error, but an error nonetheless. A good example is what might be called the waiver theory of willful ignorance. According to the waiver theory, willful blindness waives the defense of ignorance. The waiver theory packs intuitive appeal, and it actually explains the mysterious equation ignorance = knowledge. The idea is that when ignorance is self-imposed, the plea of ignorance is nothing but chutzpah. The standard example of chutzpah is the young man who murders his parents and then pleads for mercy because he is an orphan. Now, of course, murdering one’s parents is intrinsically evil, while screening actions may be as innocent as simply not looking in a suit­case. But the example nevertheless has much in common with willful ignorance. In both, the wrongdoer has intentionally caused the condition of his own defense, and thereby waived that defense.^[424]

The problem with the waiver theory is that it is too harsh. It seems appropriate when the accused is our grand-scheming Fox, craftily contriving his own defense. But what if the accused has been only recklessly ignorant, or negligently ignorant? In that case it seems unjust to waive the defense of ignorance, and convict him of performing the misdeed knowingly. He did nothing knowingly. He has been, at most, reckless in his screening actions, and his misdeeds were unwitting. Recklessness plus ignorance doesn’t add up to knowledge.^[425]

The Model Penal Code standard and the waiver theory demonstrate the perils of focusing completely on the unwitting misdeeds while ignoring the screening actions. I now want to argue that it is equally wrong to focus entirely on the screening actions and ignore the unwitting misdeeds.