Culpability and Mistake of Law
Douglas Husak[*]
Under what conditions should ignorance of law serve as a defense (or mitigating factor) to criminal liability (and/or sentencing)? I admit to enormous uncertainty about this matter; my intuitions about particular examples are frail and easily swayed. Before moving to a discussion of my current thoughts on this topic, I would like to say that ignorance of law remains one of the most under-theorized issues in criminal law theory. The lack of good literature on ignorantia legis is astonishing; the question surely is worthy of a general symposium.
I. A Few Preliminaries
I remain convinced of several general points I made in the original essay. First, the Model Penal Code approach to this topic is wholly inadequate, even though it improves quite a bit on the common law. On only a handful of topics is the Code less defensible. Next, the suggestion that the law should not encourage ignorance is unhelpful even to begin a discussion of this issue. Ignorance of fact should not be rewarded, but both morality and law nonetheless afford considerable exculpatory significance to factual ignorance. The popularity of such suggestions probably reflects the pervasive tendency to apply utilitarian thinking to issues of blame---a tendency I hope will become increasingly rare in judgments about liability and punishment. Moreover, there is no obvious reason why the law should differ dramatically in its treatment of ignorance of law and ignorance of fact. The principles governing these two “defenses” are more similar than dissimilar. Finally and perhaps most importantly (because of the sheer
number of theorists who are mistaken on this point) the supposition that persons may be
culpable for their failure to know the law, even if true, does not show that ignorance of
law lacks exculpatory force. Here’s why. Consider two defendants, Jim and Jack. They
commit the same actus reus with the same mens rea but differ in only one respect. Jim is
fully aware of the existence of the law he is violating; Jack is wholly unaware he is violating a law but is culpable for his lack of awareness. Jim, let us suppose, is blameworthy to degree Y for his criminal act. Jack, by contrast, is blameworthy to degree j for his culpable failure to know the law. I see no general reason to suppose that Y = j. In fact, I doubt that Y is often equal to j. But unless Y = j, ignorance of law, however culpable, should be given exculpatory force. If it is not given exculpatory force, the criminal law inevitably will disregard proportionality---a nearly inviolable cornerstone of a desert theory of liability and sentencing. Either Jack or Jim will be punished in excess of his blame.
The same general argument shows why the supposed existence of a duty to know the law does not resolve questions about the exculpatory significance of legal ignorance. I actually think that the alleged existence of this duty is preposterous. If any such duty were to exist, each of us would be guilty of violating it over and over again. No one---law professors, federal prosecutors, defense attorneys---knows more than a tiny fraction of the laws to which we are subject. The slogan that each person has a duty to know the law is ludicrous. Surely the legal system itself makes no serious effort to provide information to citizens in a manner that would enable us to comply with this supposed duty. What passes for “fair notice” in law---small print in the Congressional Record or even in a local newspaper, for example---is actually noticed by a tiny handful of citizens. In any event, as I have indicated, this argument against the exculpatory significance of ignorantia legis would be unsound even if we were to concede that such a duty exists. The breach of a duty to know the law would render a person blameworthy to degree S. The breach of the duty created by the law that is violated would render a person blameworthy to degree P. Unless S = P, the supposition that persons deserve blame for their failure to comply with their duty to know the law does not show that ignorance of law lacks exculpatory significance.
Of course, the fact that ignorance of law should frequently be given exculpatory significance does not settle the crucial question of where its significance should be located. Should it be relevant for liability---to what offense, if any, the defendant has committed? Or should it be relevant at sentencing---to how much Jack and Jim should be punished for committing the same offense? Any answer to this question depends on our ability to identify principles governing whether a given exculpatory factor should be material at one stage of the criminal justice system rather than another. Apart from a handful of candidates such as fair labeling, theorists have failed to produce very many such principles. In their absence, I expect that commentators will persist in disagreeing about where the exculpatory significance of ignorance of law should be located. Some offenses, of course, build a “defense” of ignorance of law into the statute itself. They provide, for example, that an offense must be “willful” (which presumably requires that the defendant knows he is violating the law) or that the defendant must act “knowing that his conduct is illegal” (which achieves the same result in an even more straightforward manner). As a matter of positive law, such provisions settle the question whether ignorantia legis is material to liability or to sentencing. Unfortunately, these provisions are conclusory; they fail to address the preliminary (and deeper) issue of why some but not all statutes should be defined to include such language among their material elements. On what basis should legislators decide to provide for a “defense” of ignorance of law in the statutes they enact? Why should the state include such a “defense” in its proscription of tax evasion, for example? Principles of criminalization are needed to address such questions.
II. Two Principles
I continue to adhere to two important principles in deciding whether ignorance of law is material in a given case. Although controversial, I believe that each of these principles is equally applicable in cases of mistake of fact.
A. A Counterfactual Test
First, ignorance should be given exculpatory significance only when the defendant satisfies a counterfactual test: but for his ignorance, he would not have committed the offense. In other words, his ignorance lacks exculpatory force unless it made a difference to his behavior. If the defendant would have committed the very same crime had he known the law, it is hard to see why his ignorance is material to the blame he deserves for committing it. Of course, it may be next to impossible to determine whether a defendant who acts in ignorance of law satisfies this counterfactual test, and our penal system must take a position on what to do to a particular defendant who is ignorant when no one can be very confident of whether his behavior would have been affected by his knowledge. Nonetheless, in principle, defendants who fail this counterfactual test merit no exculpation.
B. Morally Wrongful Conduct
Second, defendants who act in ignorance of law probably merit no exculpation if they believe their conduct is morally wrongful. Suppose a defendant believes there is a gap in the law and that his behavior, despite being wrongful, happens not to be illegal. How fortunate for him that the law permits his dastardly act! But this defendant is mistaken about the law, and no such gap exists. Why does he deserve exculpation? Even by his own lights, he is morally blameworthy for what he has done. Since I hold that the criminal law should generally track morality rather closely, this defendant deserves legal blame for what he has done as well. The somewhat more difficult question is whether a defendant who acts in ignorance of law merits exculpation when he does not believe his behavior is morally wrongful, even though it is. Consider a defendant who thinks (1) no law prohibits x, and (2) x is morally permissible --- even though x is wrongful after all. Perhaps I was correct to say in 1993 that a wide spectrum of different kinds of examples should be distinguished here; a great deal may depend on the reasons for which this defendant has made his moral mistake. A person who believes that killing is permissible because it hastens the decedent’s trip to heaven does not seem as blameworthy as a person who believes that killing is permissible because the ethnicity of his victims makes them less than fully human. But perhaps no such distinctions need be drawn. With only a bit more hesitation, I do not see why the ignorance of this defendant has any exculpatory significance. If it is wrong and criminal to torture mammals, for example, the fact that a defendant believes otherwise (on both scores) does not operate to cast his behavior in a more favorable light. I am inclined to deny that his beliefs have any exculpatory significance whatever. Admittedly, other examples might give me pause.
III. Malum Prohibitum Offenses
Mistakes of law involving morally wrongful behavior will be fairly unusual, although they are bound to attract enormous publicity whenever they occur. Ignorance of law is far more likely to be invoked in a case of malum prohibitum. For all practical purposes, controversy about ignorantia legis involves the fate of defendants who commit mala prohibita offenses. But how should this elusive distinction be drawn? I worry that restricting the availability of the defense to mala prohibita offenses may encourage skeptical judges to classify given offenses as mala in se. For example, is the possession of a psilocybin mushroom in one category of offense or the other, and how should we decide? Ignorance of the law that governs such substances may not be unusual. Still, I will not dwell on these familiar difficulties of classification---except to add that the intuitive plausibility of the view that the defense of ignorantia legis should be available may provide one reason to categorize a troublesome case as malum prohibitum rather than malum in se. If we believe that ignorance of law about the controlled status of a given substance is material to culpability, we probably think that drug offenses are malum prohibitum.
However the category of malum prohibitum ultimately is characterized, I have no doubt that such offenses are far more numerous today than when the common law rule about ignorance of law was formulated. Our legal system is guilty of rampant overcriminalization, and most of its recent expansion has come in the domain of malum prohibitum. I now am inclined to think that a requirement that a mistake of law be reasonable is not especially helpful in resolving the issue of what to do about defendants who commit mala prohibita offenses in ignorance of law. In the first place, even unreasonable mistakes of law seem to mitigate blame in some circumstances. The fact that a reasonable person in the defendant’s circumstances would have known the law does not show that the plea of ignorantia legis lacks exculpatory force when made by a defendant whose ignorance is unreasonable. Negligence about facts is typically too low a level of culpability to merit criminal liability; I don’t see why negligence about law should be enough to deny the defense of ignorantia legis.
More importantly, the formula that only reasonable mistakes of law will excuse is largely empty without a great deal more discussion of the conditions under which given mistakes will qualify as reasonable. I sometimes believe that we legal philosophers have not even done the spadework necessary to help solve this problem. What I mean is that we have not even begun to distinguish a sufficient variety of cases to expect to make progress. Mountains of work remain to be done. In what follows, I will describe four kinds of cases. Despite how common I believe these scenarios to be, they have received very little attention from commentators. I will recount all but one case in the first person, even though I hope that the examples can easily be generalized to the experience of a great many readers.
Example #1: When I dispose of used batteries from my flashlight after a camping trip, I am vaguely aware that the local rules about recycling in my jurisdiction may well prohibit throwing these batteries into my ordinary garbage can along with packaging and rotten foods. Am I right or wrong? I honestly do not know. I suppose my mental state about the law is a textbook example of recklessness: I am consciously aware of a risk that my conduct might be illegal, but my mental state is far short of knowledge. (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 in statutory definitions of recklessness.) Suppose I throw my batteries in the garbage. Is my mistake of law (supposing that the law requires recycling) reasonable? I don’t know. Am I as blameworthy as someone who knows perfectly well that batteries must be recycled (supposing that the law imposes this requirement)? I don’t think so. Should I qualify for a complete defense? Again, probably not. Am I to blame because I didn’t take additional steps to learn the law? It’s hard to say, unless I am given concrete instructions on what I should have done to find out. This information is not easy to find, and varies from one place to another. Even if such facts were readily available, am I to blame for not discovering them? An attempt to answer this question affirmatively, and to use this answer as the basis for denying exculpatory significance to my ignorance, runs into the problem I used Greek letters to describe above.
Example #2: Much the same as #1, except now I can easily find out the law. Suppose my city sends me a flyer about recycling every year. I decide not to read it because I want to persist in my behavior and am afraid I would discover it to be illegal if I investigated. In other words, I am “willfully ignorant” in my failure to know the law. As we all know, a huge literature has grown around the topic of whether and under what conditions willful ignorance of a fact is equivalent to knowledge of that fact. Are these same theories applicable to decide when willful ignorance of the law is equivalent to knowledge of the law? If we think that some cases of willful ignorance are less culpable than knowledge, we might well come to the same conclusion when a defendant is willfully ignorant about the law rather than about a material fact.