Clarence Darrow (1857-1938), a Chicago attorney who lived only two blocks from where I now reside, is one of my heroes. You’ll surely remember him as the defense attorney in the Scopes “Monkey Trial” in 1925, the man who conducted a brutal cross-examination of William Jennings Bryan about the veracity of the Bible.
But the Scopes trial was only one case in a long and distinguished career, one in which Darrow fought relentlessly for the underdog, whether that be socialists, laborers, or blacks. He took on many unpopular causes, and was one of the founders of the American Civil Liberties Union.
I don’t have the space to recount his many achievements, or explain why I admire him. If you want to learn about Darrow, read either the Wikipedia article or Douglas Linder’s Clarence Darrow Home Page. Better yet, read John Farrell’s excellent biography, Clarence Darrow, Attorney for the Damned. The following short video gives the highlights of his career.
Someone sent me a collection of Darrow’s speeches in and out of the courtroom, which had a title similar to that of the biography. The anthology is Attorney for the Damned: Clarence Darrow in the Courtroom, edited by Arthur Weinberg and with an introduction by William O. Douglas (late justice of the U.S. Supreme Court). Reading through it, I realized that Darrow’s entire philosophy of criminal justice hinged on his notion that criminals had no free will: they couldn’t choose to commit or refrain from crime, but were conditioned completely by their constitutions and environment.
This is relevant to the Leopold and Loeb case, one of the three most famous criminal trials of the twentieth century (the other two are the O. J. Simpson case, in which I was involved, and the Lindbergh baby kidnapping).
Nathan Leopold and Richard Loeb were two brilliant Jewish students at the University of Chicago, who, influenced by Nietzsche, decided to commit the perfect crime. On May 21, 1924, they kidnapped a 14-year-old named Bobby Franks, killed him by bludgeoning him with a chisel, and drove to a lake in nearby Indiana where they dumped Frank’s body in a culvert.
They almost got away with it, but someone discovered the body, and, a few days later, a policeman found a pair of Leopold’s glasses at the scene. They had an unusual frame, and only three pairs had been sold in Chicago. They traced the glasses to Leopold, who quickly cracked (as did Loeb), and both went to trial in August. Darrow was their attorney.
Knowing that the evidence was indisputable, Darrow had his clients plead guilty, hoping that by so doing he could save them from hanging. (Only one of dozens of Darrow’s murder clients was ever executed.) In a remarkable 12-hour speech, which I think was largely extemporaneous, Darrow pleaded for their lives to Judge John Caverly. His speech is reproduced in its entirety in the Weinberg collection, and you can see part of it online.
It did the trick. The judge, who apparently was weeping heavily at the end of Darrow’s elocution, sentenced both killers to life in prison plus 99 years. In 1936, Loeb was murdered in prison with a straight razor, probably by an inmate whose sexual advances were refused (it’s pretty clear that both Leopold and Loeb were gay). Leopold was released on parole in 1958, moved to Puerto Rico to avoid attention, and died in 1971.
Reading Darrow’s writings, and his closing argument in the Leopold and Loeb case, I was struck by how often Darrow brought up his view that criminals have no choice about their actions. This was mentioned in the Wikipedia article:
The Leopold and Loeb case raised, in a well-publicized trial, Darrow’s lifelong contention that psychological, physical, and environmental influences—not a conscious choice between right and wrong—control human behavior. The public got an education in psychology and medicine and, because Leopold was an admirer, the philosophy of Friedrich Nietzsche.
And Darrow’s philosophy is evident in his moving speech for Leopold and Loeb: “Closing argument: The State of Illinois v. Nathan Leopold and Richard Loeb, delivered August 22, 1924″. I’ve put part of it in bold because it seems so prescient, as if Darrow realized that science itself rules out any kind of free choice:
Why did they kill little Bobby Franks? Not for money, not for spite; not for hate. They killed him as they might kill a spider or a fly, for the experience. They killed him because they were made that way. Because somewhere in the infinite processes that go to the making up of the boy or the man something slipped, and those unfortunate lads sit here hated, despised, outcasts, with the community shouting for their blood.
. . . I know, Your Honor, that every atom of life in all this universe is bound up together. I know that a pebble cannot be thrown into the ocean without disturbing every drop of water in the sea. I know that every life is inextricably mixed and woven with every other life. I know that every influence, conscious and unconscious, acts and reacts on every living organism, and that no one can fix the blame. I know that all life is a series of infinite chances, which sometimes result one way and sometimes another. I have not the infinite wisdom that can fathom it, neither has any other human brain. But I do know that if back of it is a power that made it, that power alone can tell, and if there is no power then it is an infinite chance which man cannot solve.
That was not a rhetorical strategy: Darrow really did believe that.
Here’s another quote from Darrow on the “delusional” nature of free will:
“There are a lot of myths which make the human race cruel and barbarous and unkind. Good and Evil, Sin and Crime, Free Will and the like delusions made to excuse God for damning men and to excuse men for crucifying each other.” - Clarence Darrow
Weinberg’s anthology begins with a remarkable speech, “Address to the prisoners in the Cook County Jail” (online). Weinberg first gives some background:
“The warden of the Cook County Jail in Chicago, who knew Clarence Darrow as a criminologist, lawyer, and writer, invited him to speak before the inmates of the jail. Darrow accepted the invitation. This was in 1902.
The prisoners marched into the auditorium where they heard what is today still considered one of the most extraordinary and unique speeches ever delivered to such an audience.”
You can read the whole speech, if you want, but here’s an excerpt from it, emphasizing not only the criminal’s lack of free will, but also the environment of greed and capitalism that drove so many men to crime. Darrow was an ardent socialist at a time when that simply wasn’t on in polite society. Remember, he’s telling this to convicted criminals (again, my emphasis):
If I looked at jails and crimes and prisoners in the way the ordinary person does, I should not speak on this subject to you. The reason I talk to you on the question of crime, its cause and cure, is because I really do not in the least believe in crime. There is no such thing as a crime as the word is generally understood. I do not believe there is any sort of distinction between the real moral condition of the people in and out of jail. One is just as good as the other. The people here can no more help being here than the people outside can avoid being outside. I do not believe that people are in jail because they deserve to be. They are in jail simply because they cannot avoid it on account of circumstances which are entirely beyond their control and for which they are in no way responsible.
. . . Let us see whether there is any connection between the crimes of the respectable classes and your presence in the jail. Many of you people are in jail because you have really committed burglary. Many of you, because you have stolen something; in the meaning of the law, you have taken some other person’s property. Some of you have entered a store and carried off a pair of shoes because you did not have the price. Possibly some of you have committed murder. I cannot tell what all of you did. There are a great many people here who have done some of these things who really do not know themselves why they did them. I think I know why you did them — every one of you; you did these things because you were bound to do them. It looked to you at the time as if you had a chance to do them or not, as you saw fit, but still after all you had no choice. There may be people here who had some money in their pockets and who still went out and got some more money in a way society forbids. Now you may not yourselves see exactly why it was you did this thing, but if you look at the question deeply enough and carefully enough you would see that there were circumstances that drove you to do exactly the thing which you did. You could not help it any more than we outside can help taking the positions that we take.
. . . There is one way to cure all these offenses, and that is to give the people a chance to live. There is no other way, and there never was any other way since the world began, and the world is so blind and stupid that it will not see. If every man and woman and child in the world had a chance to make a decent, fair, honest living, there would be no jails, and no lawyers and no courts. There might be some persons here or there with some peculiar formation of their brain, like Rockefeller, who would do these things simply to be doing them; but they would be very, very few, and those should be sent to a hospital and treated, and not sent to jail, and they would entirely disappear in the second generation, or at least in the third generation.
There’s an afterword to the talk that includes this:
“Too radical” was the comment of one prisoner when a guard later asked him what he thought of the speech.
Darrow was prescient in realizing that the lack of free will had serious implications for the criminal justice system. If you want to read more about his views on free will, see Tamler Sommers’ short essay, “Darrow and determinism: giving up ultimate responsibility.“
There aren’t many videos of Darrow in which he actually speaks. Here’s one, from around 1932, in which he’s “interviewed” (it’s really a monologue). It shows not only his eloquence, but also his views on free will and criminality.
Here’s Darrow speaking at the trial of Leopold and Loeb. The pair are to Darrow’s right, with Loeb, wearing a bowtie, looking at the camera. Leopold sits to Loeb’s right with slicked-down hair, staring straight ahead.
Finally, here are Darrow and Bryan at the Scopes trial:
Here’s a photograph of Darrow’s famous interrogation of Bryan on July 20, 1925. The trial was moved outside because of the heat in the courtroom. This was a rare case in which the defense attorney actually put the prosecuting attorney on the stand, but Bryan, who was a showman, considered himself an expert on the Bible and wanted to be questioned. That was a serious mistake, as you’ll see from the transcript of his testimony.