When I was young I came across this book of courtroom speeches by Clarence Darrow. Although I was only about eleven years old it enthralled me, and I think it was one of the reasons I ended up going to law school not all that many years later.
So I came to law from a literary angle, because to me Darrow’s speeches were thrillingly eloquent. I knew nothing of his politics, and very little about the law itself. But he was an old-school leftist of the hard-nosed-crossed-with-bleeding-heart variety (if that makes any sense). And boy, could he talk!
I had first come across Darrow in a fictionalized version through the play “Inherit the Wind,” but shortly afterward I became interested in learning about the real thing. Thus, the book. His closing argument in the Leopold and Loeb murder trial was particularly memorable because it dealt with such strange and horrific facts: the cold-blooded murder of a 14-year-old boy named Bobby Franks by two older teenagers who came from fabulous wealth and who were both considered geniuses. Their motive seemed the strangest of all: besides implied thrill-seeking behavior, they thought they were supermen who could commit the perfect crime, a la Raskolnikov (although there’s no indication that they’d read that book—which might have acted as a deterrent—they in fact had read and been influenced by Nietzsche).
The country was clamoring for Leopold and Loeb’s execution, and Darrow had the unenviable task of pleading for their lives to be spared. They had already pled guilty, so it would have been unusual to have executed a murderer under those conditions, but the crime was so heinous and the trial had become so notorious (the first so-called “Crime of the Century”) that their execution was a very distinct possibility. In his subsequently-famous summation before the judge (the murderers had avoided a jury trial by pleading guilty) Darrow spoke for twelve hours.
Looking back now at his speech now with the perspective of an older person rather than the child that I once was, I am again struck by Darrow’s eloquence, but also by how much he focuses on the idea of determinism as opposed to free will, and by his world-weariness:
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. Mr. Savage, with the immaturity of youth and inexperience, says that if we hang them there will be no more killing. This world has been one long slaughterhouse from the beginning until today, and killing goes on and on and on, and will forever….
I know how easy it is to I talk about mothers when you want to do something cruel. But I am thinking of the others, too. I know that any mother might be the mother of little Bobby Franks, who left his home and went to his school, and who never came back. I know that any mother might be the mother of Richard Loeb and Nathan Leopold, just the same. The trouble is this, that if she is the mother of a Nathan Leopold or of a Richard Loeb, she has to ask herself the question: “How come my children came to be what they are? From what ancestry did they get this strain? How far removed was the poison that destroyed their lives? Was I the bearer of the seed that brings them to death?” Any mother might be the mother of any of them. But these two are the victims.
No one knows what will be the fate of the child he gets or the child she bears; the fate of the child is the last thing they consider.
I am sorry for the fathers as well as the mothers, for the fathers who give their strength and their lives for educating and protecting and creating a fortune for the boys that they love; for the mothers who go down into the shadow of death for their children, who nourish them and care for them, and risk their lives, that they may live, who watch them with tenderness and fondness and longing, and who go down into dishonor and disgrace for the children that they love…
Darrow goes on to describe the stupidity of the perpetrators despite their academic brilliance—their failure to take even the most elementary precautions (for example, they killed the boy in their car in the middle of traffic) as evidence that they’re crazy.
I have to say he has a point:
They get through South Chicago, and they take the regular automobile road down toward Hammond. They stop at the forks of the road, and leave little Bobby Franks, soaked with blood, in the machine, and get their dinner, and eat it without an emotion or a qualm.
I repeat, you may search the annals of crime, and you can find no parallel. It is utterly at variance with every motive, and every act and every part of conduct that influences normal people in the commission of crime.
Even sociopaths usually have more instinct for self-preservation than that, although just as little conscience (evidence of their later lives points to the probability that Loeb was a sociopath but Leopold was not, a combination that is not unusual for criminal duos).
Darrow’s argument was not only one against giving Leopold and Loeb the death penalty. It was really an argument against the death penalty itself, and against retributive justice and capitol punishment in general:
If these two boys die on the scaffold, which I can never bring myself to imagine, If they do die on the scaffold, the details of this will be spread over the world. Every newspaper in the United States will carry a full account. Every newspaper of Chicago will be filled with the gruesome details. It will enter every home and every family. Will it make men better or make men worse? I would like to put that to the intelligence of man, at least such intelligence as they have. I would like to appeal to the feelings of human beings so far as they have feelings– would it make the human heart softer or would it make hearts harder?
It goes on and on, and on and on. The entire address, long as it is, has the cadence of poetry, but it ignores the other side of the argument: that some murders are so heinous, some victims so innocent, that the crimes call out for the death penalty as a way to register the gravity of the act and the depth of society’s outrage.
Darrow almost seems to be arguing against free will in general:
…[I]ntelligent people now know that every human being is the product of the endless heredity back of him and the infinite environment around him. He is made as he is and he is the sport of all that goes before him and is applied to him, and under the same stress and storm, you would act one way and I act another, and poor Dickey Loeb another.
Darrow is arguing for a system of law in which mercy is stronger than justice, or at least one in which mercy is redefined:
I do not know but what Your Honor would be merciful if you tied a rope around their necks and let them die; merciful to them, but not merciful to civilization, and not merciful to those who would be left behind. To spend the balance of their days in prison is mighty little to look forward to, if anything. Is it anything? They may have the hope that as the years roll around they might be released. I do not know. I will be honest with this court as I have tried to be from the beginning. I know that these boys are not fit to be at large. I believe they will not be until they pass through the next stage of life, at forty-five or fifty. Whether they will be then, I cannot tell. I am sure of this; that I will not be here to help them. So far as I am concerned, it is over.*
I wrote that Darrow spoke poetically, but he also quoted poetry with some frequency in his summations. In addition, it turns out that Darrow was himself the subject of poetry; one of his law partners was the poet/lawyer Edgar Lee Masters, of “Spoon River Anthology” fame. Masters wrote three poems about Darrow, the most famous of which is this:
This is a man with an old face, always old…
There was pathos, in his face, and in his eyes.
The early weariness; and sometimes tears in his eyes,
Which he let slip unconsciously on his cheek,
Or brushed away with an unconcerned hand.
There were tears for human suffering, or for a glance
Into the vast futility of life,
Which he had seen from the first, being old
When he was born.
Darrow once gave a talk (text here) where he discussed poetry, including anecdotes about Thomas Hardy and A. E. Houseman, both of whom he had met (through Masters?), as well as Omar Khayyam and Edward FitzGerald (whom he had not met). The address also contains a lengthy passage arguing against the existence of free will, which seems to have been a particular bête noire of Darrow’s. He quotes “The Rubaiyat”:
But helpless Pieces of the Game He plays
Upon this Chequer-Board of Nights and Days:
That’s a poet speaking; whether it be Khayyam or Fitzgerald or some combination of the two. But no system of law, however merciful, can actually believe we are helpless pawns and still function as a legal force.
Darrow contrasts Khayyam/Fitzgerald’s fatalism with Henley’s “Invictus,” that defiant ode to individual responsibility for which he has contempt.
As for me, I believe that we human beings are responsible for the choices we make during our lives here on earth, and that no system of law can possibly ignore that, and that exceptions should be rare and only under extreme circumstances. The rest is—as Thomas Sowell described so well in his book The Quest for Cosmic Justice—a doomed and dangerous attempt to produce cosmic justice here on earth, rather than earthly justice.
But I also know that one of Darrow’s favorite poems, Houseman’s “The Culprit,” which speaks in the voice of a boy (or man?) condemned to death by hanging (and which I first read as a young teenager myself) is unutterably and chillingly sad, and expresses some profound and complex truth about humanity:
The night my father got me
His mind was not on me;
He did not plague his fancy
To muse if I should be
The son you see.
The day my mother bore me
She was a fool and glad,
For all the pain I cost her,
That she had borne the lad
That borne she had.
My mother and my father
Out of the light they lie;
The warrant would not find them,
And here ’tis only I
Shall hang on high.
Oh let no man remember
The soul that God forgot
But fetch the county kerchief
And noose me in the knot,
And I will rot.
For so the game is ended
That should not have begun.
My father and my mother
They have a likely son,
And I have none.
Darrow once said, “Inside every lawyer is the wreck of a poet.” For most people who know lawyers, that might be an incomprehensible sentiment. Of Darrow himself, it was true.
[NOTE: *Only Leopold lived long enough to demonstrate what happened when he reached the next stage of life, as Darrow had speculated. Loeb was murdered in prison in 1936 (twelve years after the crime), but Leopold got out on parole in 1958 and lived a life that seems (at least, as best we can tell) to have featured repentance and good works.]