Abstract
When does a defendant not deserve punishment because he is unaware that his conduct breaches a penal statute? Retributivists must radically rethink their answer to this question to do justice to our moral intuitions. I suggest that modest progress on this topic can be made by modeling our approach to ignorance of law on our familiar approach to ignorance of fact. We need to distinguish different levels of culpability in given mistakes and to differentiate what such mistakes may be about. I discuss the advantages and disadvantages of this approach with special attention to how to contrast offenses from defenses. The alternative I tend to favor probably should not be implemented in existing penal codes. As a result, we are likely to remain dissatisfied with the decisions made by our criminal justice system about the exculpatory effect of ignorance of law.
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Notes
I do not clarify what I mean by retributivism. I simply ask what someone should think about ignorance of law who believes that offenders should be punished because of and in proportion to their desert.
Commentators often repeat the claim that most legal philosophers subscribe to some version of retributivism, and I suspect it to be true. Still, I have never seen empirical surveys marshaled in its support. At any rate, the claim that most legal philosophers are retributivists is compatible with the admission that non-philosophers who write about the justification of punishment—especially criminologists—are far more likely to embrace consequentialist positions.
See Holmes (1881, p. 41).
Some theorists are almost apologetic about taking a consequentialist perspective on this topic. One commentator describes the maxim ignorantia juris non excusat as an “arbitrary though necessary” rule. See Bishop (1877, §294).
See Husak (2008).
Sometimes legal notice is so convoluted that one is tempted to believe that mistakes of law are created deliberately to trap the unwary and raise revenue. See the discussion of the unintelligibility of parking signs in Manhattan in Blumenthal (2009).
I equate mistake and ignorance; both are false beliefs about the law. Of course, some theorists differentiate between mistake and ignorance. Perhaps the mistaken person believes that what he is doing is legal; the ignorant person has no idea about the legal status of his conduct. For a nice discussion, see Farnsworth (2004), especially Chapter 3.
I neglect an important dimension to this problem. One might ask not only when ignorance of law exculpates but also when it inculpates—that is, renders defendants subject to punishment when they would not have been liable had they known the truth. The inculpatory significance of ignorance is crucial for the law of attempts. If a defendant fails to commit the crime of forging a check because he falsely believes that a forgery consists in the alteration of an immaterial part of a check, for example, is he nonetheless guilty of attempted forgery? Despite the importance of this question, I will not pursue it here.
My rough characterization of culpability can certainly be contested. Different degrees of culpability may alter what someone does and thus be relevant to wrongdoing rather than to the blame he deserves for doing it. For a defense of the claim, see Duff (2007). In what follows, however, I will ignore this complication.
This maxim is seemingly endorsed in Model Penal Code §2.02(9), although the Code proceeds to qualify it. It is characterized as a “legal cliché” in Flores-Figueroa v. U.S., 556 U.S. ___ (2009).
See Segev (2006).
Justifications typically are defined to preclude the availability of an excuse. For a critical discussion, see Husak (2005).
See Husak (1994).
About the only remark about ignorantia juris made by Holmes with which I concur is as follows: The maxim “cannot be explained by saying that we are not only commanded to abstain from certain acts, but also to find out that we are commanded. For if there were such a second command, it is very clear that the guilt of failing to obey it would bear no proportion to that of disobeying the principal command if known, yet the failure to know would receive the same punishment as the failure to obey the principal law.” Holmes (1881), p. 41.
Some cases of misinterpretation or incorrect application evoke strong sympathies for defendants. For example, consider People v. Marrero, 507 N.E.2d 1068 (1987).
Thus philosophers have mounted cogent challenges to the “Ancient Slaveholder” case that Rosen believes (at Id. p. 64) to be “beyond dispute.” See Guerrero (2007).
Thus this approach can lead to enormous uncertainty about whether people are culpable for particular acts. See Rosen (2004).
Perhaps we should say that these standards are contextualized. The impetus for the several varieties of contextualism comes from DeRose (1992).
Starting a war, for example, is about as momentous an act as one can perform. Suppose that one is unsure but suspects that the particular war he is tempted to wage is unjust. Since the standards of what will qualify for exculpation due to ignorance must be sensitive to context, officials who are aware their war might be unjust have good reason to collect more evidence before they act. What has been said about war might also apply to acts of destruction, severe injury, and other serious wrongs. This is the sprit of the principle of “moral epistemic contextualism” defended in Guerrero (2007).
Although I think the standards for deciding when a person is culpable for his failure to know should be sensitive to context, the standards for deciding when a person is culpable for his recklessness or negligence are more obviously so. The definitions of recklessness and negligence include the absence of justification for taking the risk in question, and the criteria for deciding whether a risk is justifiable are clearly sensitive to what is at stake should the risk materialize.
See Guerrero (2007).
This problem infects all culpability-in-causing arguments. See Robinson (1985).
Model Penal Code §2.04(3).
See Parry (1997).
See, for example, New Jersey Statutes Annotated 2C: 2–4(c)(3).
See Segev (2006). Segev’s argument is original in contending that a defense in these circumstances should be conceptualized as a justification rather than as an excuse.
Even commentators who are critical of interpreting willful violations to require knowledge of the law concede that willfulness has frequently been defined to entail this requirement. See Davies (1998).
Model Penal Code §224.4.
Still, it is noteworthy that they are far less common than comparable provisions that afford exculpatory significance to mistakes of fact.
Some commentators indicate that mistakes of law about tax should exculpate because of the notorious complexity of the tax code. But this view encounters two problems. First, does it generalize? Many other statutory schemes are complex. Should ignorance about the provisions of such schemes exculpate as well? Second, mistakes of law about the tax code have been construed to exculpate even when they are about a provision that is not complex at all—that wages are income, for example. Does ignorance about a simple provision of the tax code exculpate, just because the code as a whole is complex? See Cheek v. U.S., 498 U.S. 192 (1991).
I speak for myself in contending that “our” intuitions are ambivalent. I believe, however, that my intuitive uncertainty is widely shared about many cases in which ignorance of law might affect desert.
Many prior theorists have written about ignorance of law by comparing it to ignorance of fact. But they have done so either to try to explain why the law affords different exculpatory significance to ignorance of law and ignorance of fact, or to emphasize the tendency to manipulate the distinction in light of the difficulty of contrasting mistakes of law from mistakes of fact. See Simons (2009).
Admittedly, the Model Penal Code appears to specifically reject this approach in §2.02(9).
One indication of the degree of difficulty in distinguishing MF from ML is the remarkable nature of some attempts to do so. For example, see Leonard (2001).
See Alexander (1993).
Alexander presents several such examples. Consider “a hunting law that prohibited hunting when a red flag flies over the Fish and Game department and allows it when a green flag flies. If a colorblind hunter mistakes red for green or green for red, has he made a mistake of fact or a mistake of law?” Alexander (2009).
According to Peter Westen, an actor makes a mistake of law if he is in need of the services of a good lawyer—that is, if, although he knows what he is empirically doing, he mistakenly believes that the state has officially declared acts of that type to be punishable. An actor makes a mistake of fact if he is in need of the services of a good private investigator—that is, if, although he knows what act-types the state officially declares to be punishable, he mistakenly believes that his conduct is an act-token thereof. More precisely, Westen elucidates the distinction this way: “The ‘‘law,’’… consists of a full specification of the act-types that the state officially declares to be punishable. The ‘‘facts’’ consist of the empirical features that determine whether conduct is an act-token of what is acknowledged to be a prohibited act-type. It follows, therefore, that no middle ground exists between law and fact, and there are no ‘‘mixed’’ mistakes that consist of neither one nor the other.” See Westen (2008).
In what follows I define each level of culpability with respect to conduct elements rather than circumstance or result elements.
With a bit of oversimplification, these definitions are borrowed from MPC §2.02.
See Husak (1996).
Model Penal Code §2.04(1)(a).
An additional complication involves doctrines that allow persons to be convicted of murder—which typically requires a culpable state of purpose or knowledge—when they kill in circumstances involving extreme recklessness.
Model Penal Code, Comments to §2.02(7), p. 248.
See Husak and Callendar (1994).
Model Penal Code §230.4. I temporarily omit these culpability elements from this statute in order to focus on the conduct prohibited. As a matter of positive law, the Code requires recklessness with respect to age and knowledge with respect to whether the conduct actually endangers the child. Thus Smith would be liable but Jones would not.
One can imagine a gang member, for example, whose initiation requires him to violate a given law. He would have no interest in engaging in his behavior unless it were criminal.
Few commentators depict existing doctrines about ignorance of law as imposing a type of strict liability. See Husak (1995).
I leave to one side the issue of whether the risk of which I am aware is “substantial” and “unjustifiable,” both of which are requirements of statutory definitions of recklessness.
Notice that knowledge is not the most culpable mental state according to our theory of MF. If our theory of ML follows that of ML, we should entertain the possibility that a defendant who purposely violates the law—whose conscious object is to commit the crime—might actually be more culpable than someone who merely knows his conduct is illegal. This possibility is unlikely to occur to a theorist unless he thinks about ML by drawing from conventional wisdom about MF.
A defendant who is ignorant of an entire statute must be ignorant of one or more of its elements—or so I hope and assume. Clearly, my model to mimic ML on MF should not preclude exculpation when a defendant is ignorant that a penal statute exists.
Our model contains additional commitments I will not discuss. For example, eliminating a separate defense of ML may have profound consequences for procedural matters such as assignments of burdens of proof.
Admittedly, our model yields no clear answer about what to say about the exculpatory significance of some kinds of mistakes of law. Here again, however, the model is vindicated, since we may be equally unsure what to say about parallel issues involving mistakes of fact. Suppose I know the law verbatim, and am well aware that my conduct amounts to a technical violation. Nonetheless, I am equally aware that persons rarely if ever are arrested or prosecuted for violating the literal terms of the statute. I may know that the law prohibits lying to a state or federal officer, for example, but would be amazed to be arrested for falsely telling a state trooper that I did not realize how fast I was driving after having been pulled over for speeding. If I were arrested and prosecuted under this circumstance, my exculpatory claim resembles that of ignorance of law. It is true that the law of which I am ignorant is the law in action rather than the law on the books. But why should this difference be material to the blame I deserve for my illegal conduct? In each case, I am unaware that the law in action will be invoked to punish me for my behavior. The above phenomena bears a close (but not exact) relation to de minimis offenses, and one reason we may be unclear about how such cases should be resolved is because we may be unclear about the exculpatory significance of de minimis generally. See Husak (2010).
The contrast between acting in and acting from ignorance dates to Aristotle. See Aristotle.
I ignore the statute that provides that factual or legal ignorance is not exculpatory if the defendant would have been guilty of a different offense had the facts been as he supposed. See Model Penal Code §2.04(2).
The debate between those who support the “deeds” as opposed to the “reasons” view of justifications originates in Fletcher (1978, p. 557).
But see Crocker (2008).
Later, however, I will suggest that we should be unclear about whether the exculpatory significance of ML should be conceptualized as a denial or as a true defense. In light of this uncertainty, the need for motivational force may resurface.
In a limited range of cases, however, we probably can be relatively certain that a defendant would not have behaved differently had he known the law. Suppose a defendant engages in a series of criminal acts and discovers somewhere along the way that his behavior is illegal. If he continues to behave in the same manner, we generally have good evidence that he fails to satisfy the counterfactual test. If he desists, we generally have good evidence that he satisfies the counterfactual test. Jane, for example, might (or might not) alter her behavior when she is informed that tips are taxable income. In many and perhaps most cases, however, such evidence is unavailable.
Of course, meta-ethical considerations may be invoked to dispute the parallels I have tried to draw between MF and ML. A person is mistaken when he holds a false belief, so one can be mistaken about the content of morality only if cognitivism is correct and moral beliefs are capable of being true of false. If no moral belief can be true, mistakes are impossible.
See Kahan (1997).
For some famous 19th century authority to the contrary, see Bramwell’s opinion in Regina v. Prince, L.R. 2 Cr. Cas. Res. 154 (1875).
Thus I am no longer quite so persuaded by the arguments advanced in Husak and von Hirsch (1993).
One commentator claims that “at least some immoral conduct we are willing to condemn whether or not the perpetrator realizes that he is doing something immoral” because “ignorance of morality is no defense.” Katz (1996, pp. 128–130). I fear that my intuitions on this topic are less clear than those of Katz.
In conversation, Derek Parfit shows that this answer cannot be accepted generally. Suppose that morality requires the affluent to donate 50% of their income to charity. Peter is aware of this requirement but donates only 25%. Paul rejects this requirement and contributes nothing. It cannot be correct to conclude that Peter is more blameworthy than Paul.
See Husak (2008).
See Duff (2007, pp. 166–172).
See New Jersey Revised Statutes 2C § 39:3–74.
Fletcher (1978, pp. 562, 567).
Id., p. 568.
Gardner (2004).
See Duff (2007, especially pp. 220–224).
Alternatively, I may have misunderstood their proposals for contrasting offenses from defenses. Arguably, their respective theories only seek to categorize non-mental elements of crimes into offenses and defenses. I owe this suggestion to Gideon Yaffe.
For his further thoughts, see Duff (2010).
The question of whether intentions are relevant to permissibility has generated an enormous literature. See Husak (2009). There is far less debate, however, about whether beliefs are relevant to permissibility. Obviously, beliefs are the crucial mental state in assessing the exculpatory significance of mistake. For an argument that beliefs as well as intentions should not be included in the content of moral norms, see Thomson (1999).
Although he does not purport to have a theory of wrongdoing, Gideon Yaffe is among the handful of theorists who has taken a stab at addressing the substantive question of when given mistakes of law should exculpate. His answer invokes what he calls the uncorrupted deliberation principle. He concludes that “false normative beliefs, such as false beliefs about the law, often corrupt, or reflect corruption, in the deliberative process itself by corrupting, or reflecting corruption, of the very principles for recognizing and responding to reasons that constitute the agent’s deliberative processes.” See Yaffe (2009). Yaffe seemingly assumes that the exculpatory significance of mistake of law must be conceptualized as an excuse. He describes his project as an attempt to fill in the blank in the formula “If defendant D has a false belief that p and ________, then D is excused.” Id., p. 1–2. As we have seen, however, ignorance of law need not be treated as an excuse. Instead, we need to know when the exculpatory significance of ignorance of law should be incorporated into the elements of offenses.
I am similarly confused about the criminal liability of psychopaths, who lack the capacity for empathy. See Levy (2007).
For a discussion of the possibility that mistakes about consent might be mistakes about law rather than fact, see Simons (2009, pp. 213)
[1976] A.C. 182.
See People v. Mayberry, 542 P.2d. 1337 (Cal., 1975).
I take no position on the divisive issue of whether persons should be liable for their negligence.
Several states have enacted a hierarchy of sexual assault offenses to reflect intuitive distinctions between the culpability of offenders.
Yaffe deserves credit for recognizing that the exculpatory significance of ignorance of law must be resolved case-by-case. He writes: “It is a separate question in each case whether or not belief that one is acting illegally is required for desert of punishment for credit card fraud, say, or for fraud through the issuance of a bad check, or for fraud perpetrated by the destruction of business documents, or for fraud involving the fixing of a horse race or some other kind of public contest, and so on for all the other various kinds of crime.” Yaffe (2009, p. 2).
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Acknowledgments
I would like to thank members of workshops at Fordham Law School and Harvard Law School for a number of valuable comments. Special acknowledgement to Gideon Yaffe and Peter Westen for some very helpful suggestions on earlier drafts.
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Husak, D. Mistake of Law and Culpability. Criminal Law, Philosophy 4, 135–159 (2010). https://doi.org/10.1007/s11572-010-9092-7
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DOI: https://doi.org/10.1007/s11572-010-9092-7