7.12 – Actual Answers – Policy Question

Actual Answer 5

Southlandia's legislators should look to the common law approach as taken by the appealant court's majority opinion in United States v. Jewell. Willful blindness, as performed by Jewell in this case is nothing more than a way for criminals to protect themselves while performing an illegal activity. United States v. Jewell provides a perfect example of the sort of loophole criminals use to avoid conviction of crimes for which they should most certainly be convicted. There is no doubt that Jewell was aware that he was in possession of marijuana and avoided positive knowledge for the sole purpose of avoiding criminal conviction. Judge Browning made the astute observation that if the court were to rule that Jewell did not meet the \'knowledge\' requirement for conviction in this case, that future drug mules would no doubt avoid positive knowledge to avoid conviction, and defense attorneys would cite United States v. Jewell as precedent that willful blindness is a valid defense to the 'knowledge' requirement. This would only allow more drug mules to avoid conviction. There is no other reason to avoid positive knowledge of illegal activity except to shield oneself from legal repercussions.

There are two broad theories of punishment legislators might consider in determining how to write criminal statutes. The first is utilitarianism as established by Jeremy Bentham. The second is retributivism as advanced by Immanuel Kant. Those who subscribe to retributivism would write laws to punish criminals in accordance with the injustice committed. Utilitarians would write laws in order to promote good and minimize evil, regardless of how, or to what extent a criminal is punished. Retributivism is archaic. Utilitarianism is forward thinking. What good does it do to punish criminals if they continue to break laws? America's prisons are filled with repeat offenders in a system where punishment is the primary consideration in writing these laws. Criminal laws should be written to deter crime. Criminals should be punished only to the extent that it will deter them and others from making similar mistakes in the future. In this way, crime is minimized at the expense of the public's desire for vengeance.

In keeping with this line of thinking, a utilitarian would agree with the appealant court's majority opinion on United States v. Jewell. In order to minimize the potential for crime, techniques that might be used for the sole purpose of avoiding prosecution should be de-incentivized. A criminal might still transport drugs across national borders regardless of whether willful blindness is considered a defense to the 'knowledge' requirement of the MPC, hoping that they will not be caught crossing the border. But those who believe they can avoid prosecution by turning a blind eye will think twice. Those who are desperate will be unhindered by a policy that does not recognize willful blindness as a defense. Still, Southlandia legislators should write laws that de-incentivize criminal action, rather than enabling it.

Actual Answer 6

When reconsidering the concept of "willful blindness" and all the interpretations that have surfaced over the years, it might seem that there is a clear philosophical divide between those interpretations. On the one hand, it might be presumed that a utilitarian understanding of punishment would lead one to believe that a defendant should rarely be convicted on the basis of "willful blindness" because crimes convicted on the basis of that category would rarely deter future instances of equivalent crimes. On the other hand, it might be presumed that a retributive understanding of punishment would lead one to believe a defendant should unequivocally be convicted on the basis of "willful blindness" because the "willful" element of the act is inherently punishable. However, it is clear to me that both the utilitarian approach and the retributive approach both support a robust understanding of this category of knowing commission. For this reason I believe that the majority's Common Law approach is significantly much more appropriate than the dissent's narrower Model Penal Code approach.

Firstly, there is ample evidence that a less robust understanding of "willful blindness" leads to more acts of crime. As the majority pointed out in United States v. Jewell, there is ample evidence to suggest that criminal defendants have taken advantage of the courts' past tendency to instruct the jury that "positive knowledge" was a necessary condition for conviction. When a society becomes aware of the fact that ignorance is sufficient to presume innocence, cases of manufactured ignorance will inevitably go up. When drug traffickers learn that so long as a defendant has no "positive knowledge" of what they possess, they are bound to continue finding manipulatable candidates who are willing to forceably maintain their own ignorance, and thus the transportation of drugs will continue to proliferate and, ultimately, the catastrophic drug epidemic will continue to plague our people. This, from a utilitarian perspective, is a disastrously bad application of the law.

Also disastrous from a utilitarian perspective would be a narrow understanding of "willful blindness" to deter the individual's future acts of commission. If Charles Jewell's conviction would have been overturned on the grounds that he was ignorant of what he was transporting, what would deter him from being more cautious in the future about transporting packages under mysterious circumstances? By no means am I suggesting that individuals that are truly ignorant of what they possess could benefit from being punished for their ignorance--as was the case with the tourist asked to watch someone's luggage in a foreign airport, or as was the case with Harold Gunton. But for someone who can, beyond a reasonable doubt, said to be not truly ignorant, but willfully ignorant, rewarding that willful ignorance is a detriment to society and to themselves. If we are to help an individual avoid further run-ins with the law, we must adopt the broader Common Law understanding of "willful ignorance."

And while we are on the topic of the individual, I feel it can be safely said that from an objective, retributivists' standpoint, the Common Law understanding of "willful ignorance" is also necessary. Honoring disingenuous ignorance of any kind cannot breed anything but unhealthy individuals and an unhealthy society. When we are taught to take advantage of our ignorance and use it to justify acts that society has determined are otherwise inexcusable, we become inherently more ignorant. We teach ourselves that lack of knowledge is a virtue and we, by at least some degree, become more passive, more manipulatable, more like pawns.

It is clear how the effect that this self-taught helplessness has on the individual could extend to society at large. A society that teaches itself to deliberately avoid knowing the effect of its actions, and the relationship that its actions have to its laws, is a society not only where the laws do not work, but a society that is inherently corrupt, systemically sick, and just generally ugly. If "willful ignorance" of one's actions is interpreted as something less culpable than "knowledge" of one's actions, then we must prepare ourselves for a willfully ignorant society.

In short, whether a judge, attorney, defendant, or layperson feels that he or she falls staunchly on the side of utilitarianism, staunchly on the side of retributivism or somewhere in between, there is no advantage to be seen in adopting the view, as seen in the dissent's Model Penal Code opinion United States v. Jewell, that willful ignorance be interpreted as narrowly as possible. The broader approach, as seen by the majority's opinion in the same case, is better for the people and the society that they make up.

Actual Answer 7

The court should view the case of United States v. Jewell with the lens of the majority's common law approach that willful blindness for the purpose of remaining ignorant is grounds to establish knowledge. The defendant provided admission to searching the trunk and glove box compartments of the vehicle, prior to getting into the vehicle and driving it from Mexico to United States, over the border. There are multiple factors in the case of United States v. Jewell that exhibit the defendant's choice to remain ignorant, thereby providing evidence of the existence of knowledge.

The first factor of this guilty act is that the defendant discussed with the car owner of his business dealings, prior to accepting his offer of payment in return for the act of driving the car. The defendant was offered marihuana by the car owner just before the car owner asked him for a favor. There is also evidence that the friend of the defendant refused to possibly incriminate themselves by not choosing to drive the unknown vehicle. This decision shows that Jewell chose to remain ignorant of the inherent risk he was taking in driving the stranger's vehicle.

The second factor of the guilty act is the defendant's admission to searching the vehicle and admitting to knowledge of the "void" apparent in the vehicle, where it was later found to have contained the marihuana. The common law defense of Jewell's actions to deliberately remain blind or ignorant for the purposes of not taking responsibility of the contents in the void is the exact phrase that would lead to the fact that Jewell had knowledge. Jewell admitted to deliberately remaining ignorant of this void, but he had suspicions that would lead him to have belief that the contents in the void were marihuana, as stated above regarding the discussions with the car owner and Jewell's friend. The result of Jewell's actions prove the guilty mind, or mens rea, as he intended to remain ignorant to his actions.

The third factor of the guilty act is that Jewell held a conscious disregard for seeking the truth of the contents of the car. By driving the car to the US and Mexico customs stop and proceeding to establish willful blindness of any of the contents of the car, Jewell did not make any inquiries of his own account to find what was in the void of the car. If Jewell could describe to authorities that he found no illegal substances in the glove box, or in the truck of the car, then he establishes knowledge of those two areas. Similarly, if Jewell could describe to authorities the existence of the void, then he establishes knowledge of the void but incriminates his actions by choosing to remain ignorant and not examine the contents of the void.

This approach of the majority fact finders in the case is a more sound approach than the reference to the Model Penal Code. Using the common law to justify the flaw in the argument for willful blindness is best because it rules that remaining ignorant leads to proving knowledge of a fact. The model penal code merely shows that knowledge is established by having a high probability of a fact, yet if a defendant does not have a belief that such fact exists, they can be proven to not have knowledge. In this case, the defendant did not have belief that the fact of the controlled substance existed in the load car, which could be an argument to dissuade the court from proving the defendant guilty.

In this ruling, the legislative intent regarding the dispute over willful blindness is both insufficient to prove the absence of the guilty mind, and insufficient to establish lack of knowledge by any party who deliberately avoids knowing what would otherwise be obvious to view. Using the common law to show that remaining ignorant is proof of knowledge is more sound and the defendant\'s claim and appeal to the court of willful blindness is not sufficient evidence to show they are not guilty of knowledge.

Actual Answer 8

I believe reasonability matters and should be a consideration for policy purposes and this ultimately results in looking at whether or not someone should have known something. Criminals would want to commit crime and use a strictly positive knowledge basis of criminal liability as an excuse for their actions and their guilty minds and this would make it difficult for the law to catch some of the criminals it intends to catch. This would result in a law that lets criminals go free and is underinclusive and ineffective in that sense. However, the law can’t substitute willful blindness in all situations where knowledge is required because then, it would have the opposite problem of being too inclusive and would hurt the innocent by punishing those who genuinely did not believe something to be true or know something. This slippery slope with no one size fits all solution or approach may result in the law acting unfairly and arbitrarily and leads us to question whether we should err on the side of letting one criminal go free rather than risk imprisoning an innocent person by establishing a “bad” precedent.

The utilitarian approach to punishment is that the punishment itself should lead to something good whether that’s deterrence, prevention of further harm, or rehabilitation. The retributivist approach is that the punishment itself is good and required even if it doesn’t lead to something good. Depending on which type of retributivist approach taken, punishment is either deserved and committing a crime is enough reason to lead to punishment (pure) or the crime itself is not enough and punishment requires an additional utilitarian reason (negative).

We need to use retributivist views on willful blindness because we want people to stay as far away as possible from doing something illegal. If we want to discourage or dissuade people from even considering the risk of doing something illegal or producing some harm, the fear of punishment through retributivism would give those people greater pause. Next time, we don’t want someone like Gunton to even risk associating with something that may be illegal regardless of whether it’s narcotics or firearms. However, we need to keep our utilitarian intuitions intact because as a society, we don’t want to overpunish both in terms of the types of situations we would consider in need of punishment and in terms of the severity of any given punishment. The aim is not to punish a truly innocent person or someone who was even trying to do some good and we definitely do not want the punishment to be so severe or even debilitating as to take someone producing good for society out of society (like Gunton’s position as a farmer delivering crops). Thus, I agree with negative retributivism for willful blindness. We want people to be reasonable and carry out an ordinary standard of care and at the same time, we don’t want to excuse people who take advantage of avoiding clear lines or strict readings of “knowledge.”

On a separate and specific note, I do think the jury instructions were made in error and should have included the components mentioned in the dissent such as the requirement of telling the jury that willful blindness involves a subjective belief of the high probability of the existence of a fact.

However, I think if the original trial had included these components, it still would have been reasonable to find Jewell guilty under willful blindness. He claimed not to have known through positive knowledge or having confirmed the marijuana in the car by sight. But he was aware of the high probability of marijuana in the car because he admits to having been approached and offered marijuana for sale by the same person who asked him to drive the car. He also admitted to having seen the void in the trunk of the car but deliberately not checking to confirm and learn of the truth because he wanted to specifically avoid responsibility and deny knowledge if caught at the border. He was quoted to the extent of saying he could not find anything in the car from a brief look over and assumed border patrol would similarly not find anything. This already is a closer admission to thinking there is a high probability of something illegal in the car and something existing to even be discovered. If some other facts could be ascertained such as whether or not Jewell could detect marijuana in the car through his other senses such as smell, it would help determine if he did think there was a high probability of the presence of marijuana in the car.

I do think reasonability should play a factor in willful blindness in addition to the subjective belief of high probability of a fact or existence of something specific and illegal. I also think the “why” or the motive should be considered in cases of willful blindness. Did the defendant have a reason or something to gain out of participating or agreeing to the arrangement? What was their reason for taking the deliberate actions to avoid obtaining positive knowledge based on a suspicion or thought of high probability of something illegal being present? Determining the motive, by default, requires a closer look at each individual situation and case, but I think this additional effort would calibrate the law closer to its purpose by making it more effective in punishing criminals (using a negative retributivist approach) while also guarding against a hard and fast rule that would punish the innocent.



Actual Answers

Let's just quickly look at a few actual answers, so you can get a sense of what these look like. One thing I want to note is most of the answers I got back ended up being pretty short on this question. I think because this was a tough exam with a very tight time constraint. Intentionally so, just designed to give you some exposure to dealing with tight time constraints.

Spend time judiciously on both policy questions and issue spotters.

What that meant is I think a lot of people ended up spending too much time on the issue spotter and not enough time on the policy question, and that's something that actually happens a lot to real law students. Whenever I give exams, I have issue spotters and policy questions, and I often find that students run out of time and they shortchange the policy question. You can still generate a lot of points on the issue spotter and maybe do enough on the policy question to get a decent grade, but to get a very, very top grade, you want to allocate your time so that you can really rack up points on both questions.

The ones that I'm showing you were ones where the students were really able to devote a little bit more time, but I think a lot of them I got back were just a paragraph or two. That's a good lesson. That's a good lesson for people too, that you need to devote a little bit more time.

Okay, so here's number 5, take a look at it. This one is on the shorter end, but it's a decent one. It starts off, at least gives me a thesis, says legislature should look at the common law approach for the majority in Jewell. Talks about theories of punishment, so good, which is important because remember, the one clue I gave you in the prompt was I wanted to see something about theories of punishment. A policy answer that doesn't talk about those is just going to miss out on a lot of potential points.

You should assume any time there's something like that that is specifically asked for in the prompt, that's going to be on the grading rubric, and here, that's true. This one states a thesis, makes some fine arguments along the different punishment theories, and then very quickly concludes. Clearly, was a little pressed for time, but the student would have gotten some points for themselves.

Let's look at number 6. This one is a bit longer. This one, I think is good. This one is stronger, not just in terms of the length, but I like the way that this sort of author begins with a contradiction and it uses that to support the argument. Says, "Well, a lot of people think there's this big divide between these two theories of punishment, but actually, both these theories support the thing I'm going to argue for. Here's why." Really walks it through, uses some analogies, hypotheticals that are designed to persuade, engages with multiple forms of argument, and makes some interesting policy questions.

The second to last paragraph says, "It is clear how the effect of the self-taught helplessness has on the individual could extend to society at large. Society that teaches itself to deliberately avoid knowing the effect of its actions and the relationship that its actions have to its laws. It's a society that not only where the laws didn't work, a society that's inherently corrupt, systematically sick, and just generally ugly."

That's a little bit kind of heated language, but that got my attention when I was reading these, and so this would stand out as one of the stronger policy questions if you're grading an exam. It's something that where the student does seem to understand the law. That's another thing that's important to know here is that this question is not just a pure philosophy question, it is designed to show how you actually know the law, because it's asking you to litigate, to adjudicate a particular dispute about willful blindness.

Okay. Now, let's take a quick look at number 7. This one is also a good length for these purposes, but I think one thing to note about this one is it doesn't demonstrate quite as much engagement with the theory policy considerations that the question asked for. There's less discussion of the theories of punishment, and that's something that you were tipped off in the question, that was something that I was looking for. This one ends up talking more just about the facts of Jewell. This one would get some points for making some arguments, for decent structure and so forth, but wouldn't stand out as one of the very top ones, because it's not choosing to engage with all the theoretical considerations you were asked, the students were asked to look at.

Then, another one to look at is number 8. This is another particularly strong one, I think, that actually does really address the theoretical considerations I asked about, talks about retributivism, talks about utilitarianism, and so forth. One thing that I think would have made this even stronger is maybe a little bit less use of the first person, "I think, I also think," and so forth.

It is a question that's asking you to explain your own views, but writing is going to read more persuasively, more forcefully, if you are, just state your conclusions rather than just starting out saying, "I believe reasonability really matters." You could just say, "Reasonableness matters in policy and law," or something like that in the first sentence rather than starting with an "I" statement. This is a minor criticism. I think there's a lot of really good arguments here. This one and number 6, I think, would both stand out as very strong policy answers that would perform very well on an exam situation.

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