Sunday, November 30, 2003

I've been doing an awful lot of reading about cultural history lately, and one conclusion I've come to is that there's nothing new in attitudes, in both senses of the word (that of a viewpoint or perspective and that of coppin' a tude). Bohemians have been around forever--you know, people who are too cool for mainstream society. Now they go to the Burning Man festival or the Rainbow Gathering or an anti-war demo and write bad poetry (and talk about sex a lot), but in Paris a hundred years ago they drank absinthe and painted funny pictures and pretended to be anarchists in the cafes and wrote bad poetry (and talked about sex a lot). And Byron and Shelley and Keats were getting up to the same shit with Leigh Hunt and the boys two hundred years ago, bad poetry and sex included. (OK, OK, I really do like Shelley and Keats. Not that they weren't idiots, but they could at least write.) And in Rome two thousand years ago they did the same old crap, except they wore blue denim togas or whatever. Bohemians have existed ever since society became wealthy enough to support them (Bohemians never create anything except in the world of the arts, and a lot of that, from Baudelaire to Kerouac to Gertrude Stein, is crapola. Still, sometimes it's not.)

Anyway, one thing we tend to forget about is that "enlightened liberal opinion" has always existed, at least when society has become wealthy and advanced enough to afford it. Athens and Rome had their dissenters and their progressives, just like we have today. "Enlightened liberals", ever since the Renaissance at least, have held the moral high ground; they're the ones who want to use society's resources to help its less fortunate and who want to loosen the restrictions society puts upon individuals.

All these enlightenedly liberal folks who show up at vigils the night before some Ted Bundy shakes hands with Satan are nothing new, and their arguments now are the same as their arguments then. Mark Twain used to have fun denouncing weepy-eyed bleeding hearts who were too tender-hearted to hang murderers, and Swift did the same thing back in his day. Our moral people who are against giving Mumia the injection are using just the same arguments that Clarence Darrow used and Twain and Swift denounced. Yet somehow they think their moral commitment is something original in society.

Keep this in mind while reading the following Fisking of Clarence Darrow. Clarence Darrow practiced law during the early part of the 20th century, and he was America's most famous lawyer. He "defended the underdog and the little man", as those who heroize him say. He perhaps became most famous at the Scopes "Monkey Trial", a test case in which he defended a teacher who taught the theory of evolution in the state of Tennessee, where such teaching was prohibited by law at the time (1926). Trivia: He lost the case. Scopes was convicted and fined fifty bucks or whatever.

Darrow's second-most-famous case was the Leopold and Loeb murder trial in 1924. Nathan Leopold and Richard Loeb, 19 and 18 years old, kidnapped and murdered a 14-year-old boy, Bobby Franks, in an attempt to commit the perfect crime. They later claimed to have been influenced by Nietzche's philosophy and to believe that they were intellectual "supermen", above the morality of ordinary people.

Now, what they had done, with total premeditation, is kidnap a child, beat him in the head with a chisel, and choke him to death, before dumping his body in a culvert. Loeb did the killing but Leopold was his accomplice throughout.

They bungled the crime and were caught within days; both confessed. They were from wealthy Chicago families, who hired Clarence Darrow to defend their sons. Originally the two young men had pleaded not guilty, hoping to beat the gallows on an insanity plea. Darrow changed their strategy, pleading them guilty and throwing them on the mercy of the court. This meant that Leopold and Loeb's lives would not be in the hands of a jury but rather in those of a judge. Darrow was gambling that he could convince the judge to sentence them to life imprisonment rather than to hang.

Now, before we get into Fisking the following excerpts from Darrow's twelve-hour argument, let's remember something. It was not unusual in those pre-World War II days, that lost America when men wore hats and women knew their place, for the state to execute people. Within the US, between 1930 and 1967 (the beginning of the nine-year moratorium on the death penalty), some 4000 people were executed after conviction for capital crimes.

1906: Chester Gillette, age 22, murdered his pregnant girlfriend in New York. Electrocuted.
1912: Harry Horowitz, Louis Rosenberg, Jacob Seidenschmer, Frank Cirofici, all under 21, murdered gangster in mob killing, New York. Electrocuted.
1913: Oresto Shillitoni, under 21, murdered two policemen and a rival mobster in New York. Electrocuted.
1920: Jack Field, 19, murdered girl in Sussex, England. Hanged.
1922: Frederick Bywaters, 22, murdered lover's husband in London. Hanged.
1928: Gerald Toal, 18, murdered woman in Dublin, Ireland. Hanged.
1937: Alexander Meyer, 20, ran over, raped, threw down well, and then blew up with dynamite 15-year-old girl, Philadelphia. Electrocuted.
1938: Robert Moolhouse, 21, murdered former landlady in Durham, England. Hanged.
1939: Robert Nixon, 19, murdered two women in Chicago, five women in Los Angeles, with a brick. Dubbed "Brick Moron" by press. Black. Electrocuted.

The point here is to show that it was not considered unusual to execute murderers who were young men of legal age in America or Britain in the first half of the twentieth century. It is true that two British hangings of 18-year-olds, Derek Bentley in 1953 and Francis Forsyth in 1960, were significant events in the eventual banning of capital punishment there. Also, 19-year-old spree killer Charles Starkweather was electrocuted in Nebraska as late as 1959.

My question is: if we electrocuted Charlie Starkweather in 1959, why the hell didn't we hang Leopold and Loeb in 1924? If anybody had it coming, they did: a couple of snot-ass punks who did a premeditated thrill killing. They were of legal age. They knew what they were doing and they knew it was both wrong and illegal. Answer: Because Clarence Darrow put a sob story over on the judge and he bought it. Darrow's words are in italics.

(The excerpts from Darrow's speech are taken from Famous Trials, an excellent site run by a UMKC law professor.)

Our anxiety over this case has not been due to the facts that are connected with this most unfortunate affair, but to the almost unheard of publicity it has received; to the fact that newspapers all over this country have been giving it space such as they have almost never before given to any case. The fact is that day after day the people of Chicago have been regaled with stories of all sorts about it, until almost every person has formed an opinion.

And when the public is interested and demands a punishment, no matter what the offense, great or small, it thinks of only one punishment, and that is death.

Come on. Newspapers are supposed to publish news of crimes and trials so that the public knows whether the law is being enforced or not--and whether some innocent person is being railroaded. And it's ridiculous to say the public demands the punishment of death whenever it becomes interested in a case. What might be true is that the public demands the punishment of death for the premeditated murder of a child.

Is it within the realm of your imagination that a boy who was right, with all the prospects of life before him, who could choose what he wanted, without the slightest reason in the world would lure a young companion to his death, and take his place in the shadow of the gallows?
I do not care what Dr. Krohn may say; he is liable to say anything except to tell the truth, and he is not liable to do that. No one who has the process of reasoning could doubt that a boy who would do that is not right.
How insane they are I care not, whether medically or legally. They did not reason; they could not reason; they committed the most foolish, most unprovoked, most purposeless, most causeless act that any two boys ever committed, and they put themselves where the rope is dangling above their heads....
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.

Here we go. Darrow says they are insane, that they "aren't right" because "they were made that way". So what they did isn't really their fault, see. He says there's no motive. But there is one: the thrill of committing the perfect crime. That's why Leopold and Loeb said they did it. And I don't blame the community for shouting for the blood of a couple of child-killers. If the law says murderers hang, and you want to avoid being hanged, don't commit murder. That's pretty simple.

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. There is not a sane thing in all of this from the beginning to the end. There was not a normal act in any of it, from its inception in a diseased brain, until to-day, when they sit here awaiting their doom.

No, planning a thrill-killing and then actually committing it is not too normal. Good. And the State of Illinois prescribed the death penalty for people who do something that abnormal, at least partially to help keep it abnormal. Leopold and Loeb were sane, and if they weren't, Darrow should have pleaded them not guilty by reason of insanity. But he knew a jury would never buy it.

I have in my library a story of a judge and jury and lawyer's trying and convicting an old sow for lying down on her ten pigs and killing them. What does it mean? Animals were tried. Do you mean to tell me that Dickie Loeb had any more to do with his making than any other product of heredity that is born upon the earth?... Your Honor, I am almost ashamed to talk about it. I can hardly imagine that we are in the 20th century. And yet there are men who seriously say that for what Nature has done, for what life has done, for what training has done, you should hang these boys.

There goes Darrow again, arguing that Leopold and Loeb didn't control their own actions and so should be let off--but we didn't let Charlie Starkweather or the Brick Moron off, though what those men did was considerably crazier than what Leopold and Loeb did. Darrow is saying that individuals are not responsible for their actions. Also note that he calls the criminals "boys" and refers to the man who hit Bobby Franks in the head with a chisel and then strangled him by his dimunitive nickname, "Dickie". Also, the errors of the past (considering animals to be as responsible as people) have nothing to do with the present, in which two punks beat and strangled a schoolboy.

And I ask your Honor, in addition to all that I have said, to save two honorable families from a disgrace that never ends, and that could be of no avail to help any human being that lives.

Nobody considered the disgrace of the Brick Moron's family.

If there is such a thing as justice it could only be administered by one who knew the inmost thoughts of the man to whom they were meting it out. Aye, who knew the father and mother and the grandparents and the infinite number of people back of him. Who knew the origin of every cell that went into the body, who could understand the structure, and how it acted. Who could tell how the emotions that sway the human being affected that particular frail piece of clay. It means more than that. It means that you must appraise every influence that moves them, the civilization where they live, and all society which enters into the making of the child or the man! If your Honor can do it--if you can do it you are wise and with wisdom goes mercy.

Total relativism. Of course perfect justice is impossible; humans are imperfect. But if you define justice as the protection of the innocent individual from crime, then Leopold and Loeb committed a horrible injustice and deserved whatever punishment the law meted out.

As a rule, lawyers are not scientists. They have learned the doctrine of hate and fear, and they think that there is only one way to make men good, and that is to put them in such terror that they do not dare to be bad. They act unmindful of history and science, and all the experience of the past. Still, we are making some progress. Courts give attention to some things that they did not give attention to before.

Straw man: why can't lawyers be compassionate? Darrow's a lawyer. Lincoln was a lawyer. Judge Harlan was a lawyer. Thurgood Marshall was a lawyer. And no one believes that we must make men good by using terror (though ironically Darrow's confusing argument, based on relativism, determinism, and proto-behaviorism, seems to show that such a strategy would work, at least if you define good as the absence of evil actions--which is the relativist's and the utilitarian's argument). Also note Darrow's plea for progress and his invocation of history and science, both of which he proceeds to twist.

Once in England they hanged children seven years of age; not necessarily hanged them, because hanging was never meant for punishment; it was meant for an exhibition. If somebody committed crime, he would be hanged by the head or the heels, it didn't matter much which, at the four cross roads, so that everybody could look at him until his bones were bare, and so that people would be good because they had seen the gruesome result of crime and hate.

Hanging seven-year-olds in England was never common. It might have happened once. And they hanged people by the neck until dead, not by the heels, and then they would place their bodies in gibbets and expose them publicly. As a warning, admittedly. But Darrow is confusing hanging with gibbeting. And showing people the gruesome results of crime is actually a pretty good way to stop crimes from being committed, at least from a behaviorist point of view. One problem we have is that first-time criminals often don't know what happens when you kill somebody, because on TV you only have to whack or stab the guy once and there's no screaming or blood. So they think it's no big deal.

We have raised the age of hanging. We have raised it by the humanity of courts, by the understanding of courts, by the progress in science which at last is reaching the law; and in ninety men hanged in Illinois from its beginning, not one single person under twenty-three was ever hanged upon a plea of guilty-not one. If your Honor should do this, you would violate every precedent that has been set in Illinois for almost a century....

Progress, again, says Darrow, and progress is a good thing. But what's so magic about age 23 or a guilty plea or Illinois precedent? That kind of precedent is not the sort that is binding by law, like a judge's decision is. Lots of people were executed below that age in lots of civilized places no matter what they pled; and Illinois had no qualms about executing the Brick Moron fifteen years later.

If your Honor in violation of all that and in the face of all the past should stand here in Chicago alone to hang a boy on a plea of guilty, then we are turning our faces backward toward the barbarism which once possessed the world. If your Honor can hang a boy eighteen, some other judge can hang him at seventeen, or sixteen, or fourteen.

Darrow is calling the death penalty barbaric and anti-progressive, so it must be bad; then he goes on to the slippery-slope argument. No, actually, a judge can't hang anybody under the age set by law.

You may stand them up on the trap-door of the scaffold, and choke them to death, but that act will be infinitely more cold-blooded whether justified or not, than any act that these boys have committed or can commit. Cold-blooded! Let the State, who is so anxious to take these boys' lives, set an example in consideration, kindheartedness and tenderness before they call my clients cold-blooded.

Nope, hanging two murderers is not as cold-blooded as what Leopold and Loeb did to Bobby Franks. The difference is that the State does not want to execute people. The State would be thrilled if they didn't have to execute anybody because nobody committed premeditated murder. Leopold and Loeb, on the other hand, didn't bother going through the complicated process of a fair trial and a judge's decision before killing the boy they wanted to kill out of sheer egotism.

I could say something about the death penalty that, for some mysterious reason, the state wants in this case. Why do they want it? To vindicate the law? Oh, no. The law can be vindicated without killing anyone else.

Sure it could. Illinois law at the time allowed a sentence of life imprisonment for first-degree murder, which is what Leopold and Loeb got. But if you're going to hang adult men for murder, it seems to me you have to be consistent and hang 'em all unless there is some mitigating circumstance. Either that or you hang nobody and abolish capital punishment altogether, which would be fair enough if it were the law. But that wasn't the law in 1924, and I don't see why the Brick Moron hangs when the rich Chicago punks don't--except that the Brick Moron's family didn't have enough money to hire Clarence Darrow.

Every story he (Loeb) read was a story of crime. We have a statute in this state, passed only last year, if I recall it, which forbids minors reading stories of crime. Why? There is only one reason. Because the legislature in its wisdom felt that it would produce criminal tendencies in the boys who read them. The legislature of this state has given its opinion, and forbidden boys to read these books. He read them day after day. He never stopped. While he was passing through college at Ann Arbor he was still reading them. When he was a senior he read them, and almost nothing else. Now, these facts are beyond dispute. He early developed the tendency to mix with crime, to be a detective; as a little boy shadowing people on the street; as a little child going out with his phantasy of being the head of a band of criminals and directing them on the street. How did this grow and develop in him? Let us see. It seems to me as natural as the day following the night. Every detective story is a story of a sleuth getting the best of it; trailing some unfortunate individual through devious ways until his victim is finally landed in jail or stands on the gallows. They all show how smart the detective is, and where the criminal himself falls down. This boy early in his life conceived the idea that there could be a perfect crime, one that nobody could ever detect; that there could be one where the detective did not land his game; a perfect crime.

OK, Darrow was arguing heredity before, and now he's arguing environment. Loeb killed Bobby Franks because his mind had been twisted by crime novels. Yeah, right. That probably is where he got the idea of the perfect crime from, but that's no excuse for actually committing a murder.

The whole life of childhood is a dream and an illusion, and whether they take one shape or another shape depends not upon the dreamy boy but on what surrounds him. As well might I have dreamed of burglars and wished to be one as to dream of policemen and wished to be one. Perhaps I was lucky, too, that I had no money. We have grown to think that the misfortune is in not having it . The great misfortune in this terrible case is the money. That has destroyed their lives. That has fostered these illusions. That has promoted this mad act. And, if your honor shall doom them to die, it will be because they are the sons of the rich.

It's a sob-sister mistake to think of Leopold and Loeb as children when six years ago thousands of eighteen-year-olds were getting shot in France. And that "sons of the rich" stuff; c'mon, Darrow, are you arguing heredity or environment here? And aren't the great majority of rich kids perfectly law-abiding?

When [Dr. Krohn, prosecution psychiatrist] testified my mind carried me back to the time when I was a kid, which was some years ago, and we used to eat watermelons. I have seen little boys take a rind of watermelon and cover their whole faces with water, eat it, devour it, and have the time of their lives, up to their ears in watermelon. And when I heard Dr. Krohn testify in this case, to take the blood of these two boys, I could see his mouth water with the joy it gave him, and he showed all the delight and pleasure of myself and my young companions when we ate watermelon....

Darrow's good, isn't he? Romanticizes youth--which Bobby Franks won't be around to enjoy. Demonizes the opposition; actually, the four top psychiatrists in Chicago testified that Leopold and Loeb were sane, including Krohn. But this is sophistry. It has nothing to do with a chisel and a gag and a culvert, which are the facts of this case.

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. This weary old world goes on, begetting, with birth and with living and with death; and all of it is blind from the beginning to the end. I do not know what it was that made these boys do this mad act, but I do know there is a reason for it. I know they did not beget themselves. I know that any one of an infinite number of causes reaching back to the beginning might be working out in these boys' minds, whom you are asked to hang in malice and in hatred and injustice, because someone in the past has sinned against them.

Gee, Officer Krupke, it's society's fault! I cut out a long Darrow paean to motherhood here. He's in favor of it. And he's arguing environment rather than heredity again, but have no fears, he'll be back at the heredity argument again.

That's about enough of this; this post has been extremely long. There's still a lot more of Darrow's testimony to go through, but I think we've seen most of his arguments. The point I was trying to make with all this is that Darrow's attitudes are exactly the same as those of the Illustrated and Enlightened Among Us today, and his ideas go back a good deal farther than him. Darrow was simply the man of his time that best expressed those ideas, but he was no more original than those who unknowingly parrot those same ideas today.

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