D is paid handsomely to deliver loosely wrapped packages. He suspects that they contain drugs, but does nothing about it – he worries that he will lose this lucrative employment if he begins snooping around. If stopped by the police, and found to be carrying packages containing drugs, D can credibly deny that he knew what he was carrying. Strictly, this ought to secure D's acquittal for a drug possession offence: possession involves knowledge, not mere suspicion, regarding what is under one's physical control. Yet acquitting D seems inappropriate, given his deliberate, unjustified (and un-excused) effort to avoid knowledge of the relevant fact. Accordingly, an English court would allow D's conviction for possessing drugs, by dint of a legal fiction – typically known here as “wilful blindness”. D would be credited with the knowledge that he sought deliberately, and managed successfully, to avoid.
Criminal law theorists have long debated whether this particular fiction is justified, and, if so, what its limits should be. As Alex Sarch explains in Criminally Ignorant, wilful blindness – or wilful ignorance – is a helpful “window” into a more general phenomenon: the “equal culpability thesis” (p. 3). In this impressive book, Sarch presents the most thorough and philosophically-sophisticated account of such theses to date. The text is replete with insights into a host of theoretical issues in criminal law, drawing on material from legal doctrine, legal theory and moral philosophy. This monograph (including its rich footnotes, which often contain important insights) should be read carefully by anybody interested in moral and criminal culpability. Although the book's doctrinal focus is almost exclusively on the Federal law of the US, the issues discussed in it are of general significance around the Anglo-American world.
Part I of Criminally Ignorant lays foundations. Chapter 1 concentrates on the basic place of wilful ignorance within criminal law doctrine and theory. Building on this groundwork, Chapter 2 advances Sarch's own theory of criminal culpability. The qualifier “criminal” is important. The line between criminal theory and moral philosophy has blurred substantially over the last 30–40 years, particularly when it comes to discussions of culpability. This process has gleaned many important insights, and advanced criminal law scholarship immeasurably. But there is a danger, in this new world, of criminal theory simply becoming moral philosophy, and resort is frequently had to an awkward fudge when it is remembered that the criminal law exists within a particular institutional and political context, and that there are serious epistemic limitations that may constrain the application of more nuanced moral theory in the courtroom. Sarch addresses this point head on. For him, criminal culpability is a “simplified analog of moral blameworthiness” (p. 29) that takes seriously the special context of the criminal law. This simplified picture focuses on the amount of insufficient regard for others’ interests that is manifested in a defendant's conduct. This chapter of the book makes an impressive contribution to our understanding of what such a manifestation requirement might consist of. Sarch's work here deserves to make a large impact, and will be returned to below.
Moving on from this foundational material, Part II of the book focuses on equal culpability theses. Chapter 3 identifies exceptionally clearly the difficulties with existing theories of wilful ignorance, and in Chapter 4 Sarch defends his own account, premised on deliberate failures to comply with a duty to reasonably inform oneself of certain facts. One might wonder whether such a breach of epistemic duty is a case of negligence, rather than anything comparable to knowledge, but Sarch's version of wilful ignorance applies only where the defendant subjectively suspects that a certain inculpatory fact is true (pp. 113–14). Thus, even if one is suspicious of general accounts of negligence premised on failures to investigate the risks associated with one's conduct, one can support Sarch's conception of wilful ignorance.
In Chapter 5, Sarch again moves beyond the context of wilful ignorance, to consider other equal culpability theses. He clarifies a number of such theses, including those concerning “transferred fault” and felony murder (which, although long gone in England and Wales, persists in some form throughout most of the USA). In case this was not enough, the chapter also illuminates various difficult points of statutory interpretation.
In Part III of the book, Sarch considers a range of potential culpability-substitution rules, including reckless breaches of the duty of reasonable investigation standing in for knowledge (Chapter 6), wilful ignorance standing in for purpose (Chapter 7), and “subwillful motivated ignorance” (a special form of negligence: p. 218) standing in for recklessness (Chapter 8). Sarch's arguments in these chapters are characteristically well-crafted, if sometimes perhaps a little reliant on sharing his intuitions.
Finally, in Chapter 9, Sarch considers the application of his account to the corporate context. His treatment of situations where corporations are set up in such ways as to manufacture a lack of culpable knowledge (through, for example, the creation of barriers to the free sharing of information between employees) is timely and important. Sarch sheds a significant amount of new light on the relatively old problem of corporate culpability in this chapter.
This sketch of Criminally Ignorant hopefully communicates how wide-ranging and illuminating Sarch's book is. I cannot hope to engage critically with Sarch's nuanced views in a review of this length, and so will limit myself to three “bigger picture” concerns.
First, given the risks of undeserved punishment and the requirements of the rule of law, a certain degree of concreteness and consistency is required when assessing criminal culpability. Sarch's view is perhaps too confident that his theory is suitable for real-world implementation, at least without further refinement. To work out how much insufficient regard for others is manifested by wrongful conduct (φ-ing), Sarch asks us to endorse “the lenity view” (introduced on pp. 50–54). This involves assessing the reasons in favour of φ-ing and those against φ-ing. We are to imagine “the least amount of error in weighing reasons that is needed to get an otherwise well-motivated person” to φ (p. 54). The extent of this error is the level of insufficient concern for others that is manifested by φ-ing. Thus, even if the defendant's ill will is such that we can reliably be sure that she wanted to do far worse than φ (or meant φ-ing to express greater levels of disregard for others’ interests), the criminal law ought to concern itself only with the insufficient regard in fact manifested by φ-ing.
The arguments for endorsing the lenity view are attractive – particularly that it allows defendants to retain a vision of themselves as law-abiding citizens who have erred minimally, rather than unredeemable societal outcasts (p. 69). But consider the following three points. First, Sarch's approach involves ascribing weights to reasons, which is tremendously hard, and more needs to be said about how to do this consistently in the criminal law sphere (and whether “weighing” is even the right approach in all cases – are some reasons “excluded” by others, for instance?). Second, more could be said about how we are to assess what the ordinary, law-abiding person would do when weighing reasons. Is this an “empirical” question, or one invested with normative content? Third, when seeking to substitute mental states (such as in cases of wilful ignorance) we need to ask whether distinct errors in reasoning are equally culpable, which requires us to have suitably concrete answers to the questions above, and then compare them. Sarch's way of thinking is introduced in such a compelling and graceful way, that it sounds easy to apply in concrete cases. But, on reflection, it is difficult to see how sufficient certainty and consistency can be retained here in practice. Sarch does not suggest we pose such complex questions to juries, and relies to an extent on looser presumptions (e.g. p. 134), but the worries remain – underlying these presumptions (even if looser than ideal theory) are the issues identified above.
As Sarch notes in another context, vague standards involving counter-factuals/idealised standards are less worrying in criminal law when their application will benefit (most) defendants (pp. 58–59). The lenity test might be thought likely to benefit most defendants, who will plausibly (?) have less regard for others than their conduct manifests using Sarch's test. But when the focus switches to equal culpability, things will likely worsen things for defendants: they are going to be ascribed a “higher” level of mens rea than they in fact had (e.g. knowledge, rather than suspicion, of a certain inculpatory proposition). The vagueness of the equal culpability test should worry us here. This strengthens the case for rejecting many, if not all, equal culpability theses and may limit their applicability even further than Sarch suggests in his book.
Second, not only must culpability be equal if an equal culpability thesis is going to be justified, it must be “towards the same set of protected interests, rights and values as [the offence] was criminalized to protect” (p. 160, emphasis in original). Sarch calls this the “content restriction on equal culpability imputation”, and this limit matters significantly throughout the book. Its boundaries are, however, contestable. For instance, tax fraud and handbag theft do not, for Sarch, address the same interests and values, and so one's culpability with regard to one cannot help aggravate one's culpability with regard to the other (p. 160). There will, however, often be room for non-trivial disagreement about which interests, rights and values offences protect. At a level of generality, for example, handbag theft does not seem that far from tax fraud in terms of what interests and values are being shown insufficient regard. A second difficulty is that, when considering ignorance of risks, insufficient concern for the same “broad set of interests” or “type” of risk does not fall foul of the content restriction (p. 226, cf. p. 188). Can this “set” or “type” approach apply beyond risk-taking? Even if one disagrees that handbag theft and tax fraud involve insufficient concern for the same interests and values, one might agree that they are both related to the same set or type of interests and values. To assess the practicality of Sarch's approach more thoroughly, more needs to be said about these points, and it will be interesting to see how Sarch develops his “content restriction” in future work. It is another of the major contributions in this impressive book.
A final worry concerns Sarch's keenness to explain and justify certain “data points” within existing positive law (identified on pp. 43–44). For instance, certain theories are rejected, at least in part, because they do not explain some existing doctrinal rule/principle, such as the one concerning the “irrelevance” of motive (e.g. pp. 38–39). Many of the theorists that this strategy is deployed against will, presumably, respond that such doctrinal “data points” are wrongheaded. That the criminal law has developed over centuries of practical experience (p. 10) sometimes seems to carry quite a bit of normative force in parts of this book, and not everyone will be convinced by this approach. These more doctrinal sections of the book are also in tension with parts that are more concerned with drawing a useful distinction between what the criminal law actually posits as criminal culpability, and what it should count as criminal culpability (a distinction first introduced on pp. 44–46).
The difficulty is, of course, that a lot of contemporary criminal law writing often risks falling between two stools – not quite doctrinal (or “realistic”) enough for some; too concerned with the existing doctrine (or “unreflective”) for others. Personally, I think that Sarch's concern with doctrine is a laudable attempt to take both doctrine and theory seriously, but I predict that many readers will want to hear (far) more at times about why certain doctrinal “data points” are worth maintaining/moulding one's theory around.
Sarch's high level of concern with doctrine has two other, more undeniably positive, side effects. First, in a field involving ever-more-extravagant hypothetical cases, Sarch's examples are grounded firmly in reality, and are thus more immediately relatable for those at the more “practical” end of the criminal law spectrum. Second, Sarch is realistic about the chances of explaining theoretically-dense material to juries, and provides simplified directions for his main equal culpability theses. These elements of realism strengthen the case that it would be wrongful (yet not criminal) to remain ignorant of Sarch's important contribution to the criminal law literature.
