Ignorance of Criminal Law is No Excuse - So Why Don't We Teach Kids Criminal Law?
Having fielded countless panicked, late night calls from concerned parents over the last 27 years of my New York City criminal defense only practice, I can say with great confidence that high school and college aged kids exist in dangerous ignorance of criminal law and procedure. These important laws and procedures can have devastating impact on their lives and futures. We say ignorance of the criminal law is no excuse or defense, and yet we as a society make virtually no effort to teach our kids about criminal law and procedure. Every year I encounter examples of kids (high school and college) who are tragically embroiled in problems far bigger than they initially believe with longer lasting implications than they imagine - problems that in some cases might have been avoided if the kids understood more about the law up front.
Now it might be tempting to suggest that as a criminal defense lawyer, I am in a position to step into these situations to make it all better. But the notion of the silver-haired, silver-tongued defense lawyer capable of talking the birds out of the trees who wins all his cases, is as much a creature of comic books as is the notion that if you are innocent, you have nothing to fear from the criminal justice system. I would love that this comic book notion of my job be true. How nice it would be for my ego to imagine that through a combination of my wit and charm, I can always step in and save the day, regardless of the odds. But I can't. Nobody can. In truth, we criminal defense lawyers are but warriors for the working day, and we each of us bear the scars to prove it.
The truth is that in the real world, the criminal justice system is a dangerous machine. While it is certainly exhilarating as an accused or a defense lawyer to escape the machine after a bravely fought victory, the wisest and safest way to escape the machine is never to be brought to it in the first place.
And part of the tragedy is that many, many people end up in the machine of the criminal justice system not nearly as concerned as they should be because of absolute ignorance of the law (which is of course famously no excuse), or common misconceptions about how the law actually operates (also no excuse or defense).
Especially vulnerable in this world of ignorance and misinformation are our high school and college students. This group is especially vulnerable, in my view, because they tend to hold strident absolute views about the world, they are unreasonably confident in their invulnerability, and they tend to socialize in large frequently changing groups where they are likely to encounter drugs and alcohol. This common arrogance of youth, loose connection to drugs and alcohol, and a general gross underestimation of the power of the great machine of the criminal justice system together place our kids at great risk of becoming drawn into the machine themselves.
Of course, not everyone who enters, of course, is crushed by the machine. To be sure, people like me, criminal defense lawyers, are there to help people find less drastic ways out. And in fact the keepers of the criminal justice system, in fairness, are frequently just and merciful where appropriate. But in the background, the threat of the great machine is always there, and the process from beginning to end, even for those who in some reasonable, decent and just fashion escape, is nevertheless horrifying to many.
The key, therefore, to have the best experience with the Criminal Justice System is to avoid it altogether. This may seem like an obvious point, and to a certain extent it is. It's as simple as advising someone, "Don't get yourself arrested." or "Don't commit any crimes." Couldn't be easier, right?
No. That isn't right. That is far from right, actually. It is downright wrong.
At an incredibly basic level, the criminal law could be said to be obvious. Don't kill someone. Don't steal something. Not terribly difficult, right? What's the big deal?
The big deal is that our criminal law (in New York) is a heck of lot bigger and more complicated than prohibitions against murder and stealing. The number of crimes is huge and ever growing, as if our Government is seeking to make criminals of us all. And yet, as vast and as complicated as the criminal laws are, we still are fond of spouting the old saw that "ignorance of the law is no excuse."
Funny, I don't remember my two kids, at any point in school through the end of high school being required to take a class explaining the criminal law. You would think that if we are going to raise our kids to be held accountable to a vast body of criminal laws, some of which are utterly counter intuitive, that we would be teaching them these laws somewhere along the way. If the schools don't teach kids the criminal laws they must obey or go to prison for violating, then who will? Parents? Realize that principles of criminal law are not broad concepts of morality, but rather very specific things. Providing your children a moral framework of "right and wrong" is great, but how does that explain what "acting in concert" means or how does that teach that a gun can be "loaded" when it isn't loaded (as is the case in New York Criminal law).
And if by chance, when I mentioned the term, "acting in concert" above, you were perhaps unsure exactly what that means or how it can be one of the most dangerous concepts for innocent young people, then you ought already be wondering about this big world of criminal liability and under what circumstances your kids, or even you could run afoul of it.
It is not enough to teach our children how not to be criminals. We need also to teach our children how not to be mistaken for criminals. This is a far more subtle problem than people know, because they don't generally know all they need to know about the Criminal Law or the criminal justice system. We, as adults, have done our children a great disservice by not explaining this properly. I know, because I have spent the last 27 years trying to untangle many messes of this sort in New York City Criminal Courts.
Armed simply with sufficient knowledge, I firmly believe that many young people could avoid being snared into the great machine of the criminal justice system. Maybe for some it would be sufficient to understand of the reality of what can happen when arrested. Maybe for some it would be sufficient to understand exactly what constitutes some crimes and how serious they can be. And maybe for others, it would be sufficient to know better what sort of situations to avoid in order to avoid wrongly being brought into the system in the first place. With information, comes the power to act upon it. Without information, there is only ignorance. We owe our kids more than that.
With this in mind, I will be presenting a series of follow up articles outlining several areas of the criminal law and procedure that it would do well for our high school and college kids to know. Armed with this new understanding and appreciation of some basic principles of criminal law (I hope) perhaps fewer innocent young people, guilty of nothing but ignorance, will end up on the radar of police in situations where they may appear to be guilty. And then perhaps there will be fewer desperate calls to my phone in the middle of the night from distraught parents desperate for answers.
And both the parents of these kids who will never be arrested, and I, will be able to sleep through the night.
By Don Murray, Esq., founding partner at Shalley and Murray
Don Murray is 27 year veteran New York City Criminal Lawyer, and founding partner of Shalley and Murray. He has provided testimony in an international extradition matter as an expert in New York Criminal law, he has written a chapter for a multi-volume series of books for criminal defense lawyers, and he as consulted on various television and movie projects involving New York Criminal law. Most recently he consulted on set for the NBC mini series, The Slap, where he was rewarded for his assistance by being allowed to appear briefly in the show (as an extra). Mr. Murray has also lectured to a New York City private high school regarding the issues raised in this article.
Come back in the coming days for the follow up articles in this series. Up next: "Acting in Concert - The Fast Lane to Arrest".