I just commented, on the controversial post here about Judge Boyd and the media frenzy regarding the “affluenza” defense offered by Ethan Couch’s lawyers, that the fact that so many of the comments, many of them angry, focused on the fact that a spoiled, rich kid got a break, or, as they used to say in the old days, mercy, that I began thinking about the famous Leopold and Loeb murder trial.   In 2011, I  posted a shortened version of Clarence Darrow’s famous closing argument in that trial, one of my favorite of all courtroom speeches, and it seems appropriate to do so again. It is far from a perfect parallel, but any excuse to revisit Darrow at his best is a good one.

 Nathan Leopold and Richard Loeb were, like Ethan Couch, young, rich and spoiled; they also were Jewish and gay. Their crime was  far worse than Crouch’s: they planned and executed the murder of a child just for the fun or it, and to show that they could outsmart authorities. (Ironically, they were arrested almost immediately). The two teenagers were charged with the premeditated murder of fourteen year-old Bobby Franks. Both defendants were brilliant students (Leopold, the youngest graduate in the history of the University of Chicago; Loeb, the youngest graduate of the University of Michigan),  and the sons of wealthy and successful Chicago businessmen. Neither showed any remorse for their terrible crime. There is no question that had they been poor, they would have been sentenced to die, and would have been hanged. Their parents, however, could afford to hire Clarence Darrow, a foe of capital punishment who had never had a single one of his often guilty clients executed. They got their money’s worth.

His summation on August 22, 1924, remains perhaps the most persuasive and eloquent argument against capital punishment ever made in a court or anywhere else.  It is also an argument for mercy, and especially mercy for the young. The plea worked: Judge John L. Caverly spared Leopold and Loeb, and he sentenced them to life imprisonment without parole—under the circumstances and in those days of rough justice, a gift. In his sentencing statement, which is posted here after Darrow’s summation, Caverly did not indicate that he was swayed by Darrow’s eloquence or reasoning. Caverly based his sentence on the ages of the defendants. Darrow was counting on this particular vulnerability of Caverly, who had helped establish juvenile justice courts in Chicago. Later, Nathan Leopold suggested that he and Dickie Loeb might have gotten the same result if they had simply submitted their birth certificates into evidence.

I doubt that he would have bet his life on it. The pressure on Caverly to hang these two despicable sociopaths was overwhelming, and having Clarence Darrow put his decision in such heroic terms had to steel his nerve, if it needed steeling. Still, as with Judge Boyd in the Couch case, there is no way to be sure that he would not have spared Leopold and Loeb anyway. Also as in Ethan Couch’s case, critics said this was disparate justice, bought and paid for.

This is a condensed version of Darrow’s closing,  edited for The Essential Words and Writings of Clarence Darrow, (2007),  that I co-edited with historian Ed Larson.  Here is one of the great orators of the 20th Century, one of the great progressive thinkers in our history, and the greatest trial lawyer who ever lived, arguing for the life of two murderers and for the soul of our civilization. I do not share Darrow’s absolute rejection of the death penalty, but I always do for a few hours, at least, after reading this.

” Your Honor, it has been almost three months since the great responsibility of this case was assumed by my associates and myself. It has been three months of great anxiety…

“I have heard in the last six weeks nothing but the cry for blood. I have heard from the office of the state’s attorney only ugly hate. I have heard precedents quoted which would be a disgrace to a savage race. I have seen a court urged almost to the point of threats to hang two boys, in the face of science, in the face of philosophy, in the face of humanity, in the face of experience, in the face of all the better and more humane thought of the age…

“Your Honor, it may be hardly fair to the court, I am aware that I have helped to place a serious burden upon your shoulders. And at that, I have always meant to be your friend, but this was not an act of friendship. I know perfectly well that where responsibility is divided by twelve, it is easy to say: “Away with him.”

“But, Your Honor, if these boys hang, you must do it. There can be no division of responsibility here. You can never explain that the rest overpowered you. It must be by your deliberate, cool, premeditated act, without a chance to shift responsibility. It was not a kindness to you. We placed this responsibility on your shoulders because we were mindful of the rights of our clients, and we were mindful of the unhappy families who have done no wrong…

“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 [the prosecutor—-Ed.], 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…

“Kill them. Will that prevent other senseless boys or other vicious men or vicious women from killing? No!
…I know that every step in the progress of humanity has been met and opposed by prosecutors, and many times by courts. I know that when poaching and petty larceny was punishable by death in England, juries refused to convict. They were too humane to obey the law; and judges refused to sentence. I know that when the delusion of witchcraft was spreading over Europe, claiming its victims by the millions, many a judge so shaped his cases that no crime of witchcraft could be punished in his court. I know that these trials were stopped in America because juries would no longer convict…

“Do I need to argue to Your Honor that cruelty only breeds cruelty? That hatred only causes hatred; that if there is any way to soften this human heart which is hard enough at its best, if there is any way to kill evil and hatred and all that goes with it, it is not through evil and hatred and cruelty; it is through charity, and love, and understanding?  I am not pleading so much for these boys as I am for the infinite number of others to follow, those who perhaps cannot be as well defended as these have been, those who may go down in the storm, and the tempest, without aid. It is of them I am thinking, and for them I am begging of this court not to turn backward toward the barbarous and cruel past…

“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. Once in England they hanged children seven years of age…If somebody committed a crime, he would be hanged by the head or the heels, it didn’t matter much which, at the four crossroads, 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 was not necessarily meant for punishment. The culprit might be killed in any other way, and then hanged. Hanging was an exhibition. They were hanged on the highest hill, and hanged at the crossways, and hanged in public places, so that all men could see. If there is any virtue in hanging, that was the logical way, because you cannot awe men into goodness unless they know about the hanging. We have not grown better than the ancients. We have grown more squeamish; we do not like to look at it, that is all…

“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…

“Your Honor, if in this court a boy of eighteen and a boy of nineteen should be hanged on a plea of guilty, in violation of every precedent of the past, in violation of the policy of the law to take care of the young, in violation of all the progress that has been made and of the humanity that has been shown in the care of the young; in violation of the law that places boys in reformatories instead of prisons, 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 at eighteen, some other judge can hang him at seventeen, or sixteen, or fourteen. Someday, if there is any such thing as progress in the world, if there is any spirit of humanity that is working in the hearts of men, someday men would look back upon this as a barbarous age which deliberately set itself in the way of progress, humanity, and sympathy, and committed an unforgivable act.

“I do not know how much salvage there is in these two boys, hate to say it in their presence, but what is there to look forward to? 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…

“Now, I must say a word more and then I will leave this with you where I should have left it long ago… I have stood here for three months as one might stand at the ocean trying to sweep back the tide. I hope the seas are subsiding and the wind is falling, and I believe they are, but I wish to make no false pretense to this court.

“The easy thing and the popular thing to do is to hang my clients. I know it. Men and women who do not think will applaud. The cruel and the thoughtless will approve. It will be easy today; but in Chicago, and reaching out over the length and breadth of the land, more and more fathers and mothers, the humane, the kind, and the hopeful, who are gaining an understanding and asking questions not only about these poor boys but about their own, these will join in no acclaim at the death of my clients. But, Your Honor, what they shall ask may not count. I know the easy way. I know Your Honor stands between the future and the past. I know the future is with me, and what I stand for here; not merely for the lives of these two unfortunate lads, but for all boys and all girls; for all of the young, and as far as possible, for all of the old.

“I am pleading for life, understanding, charity, kindness, and the infinite mercy that considers all. I am pleading that we overcome cruelty with kindness and hatred with love.

“I know the future is on my side. Your Honor stands between the past and the future. You may hang these boys; you may hang them, by the neck until they are dead. But in doing it you will turn your face toward the past. In doing it you are making it harder for every other boy who in ignorance and darkness must grope his way through the mazes which only childhood knows. In doing it you will make it harder for unborn children. You may save them and make it easier for every child that some time may stand where these boys stand. You will make it easier for every human being with an aspiration and a vision and a hope and a fate. I am pleading for the future; I am pleading for a time when hatred and cruelty will not control the hearts of men. When we can learn by, reason and judgment and understanding and faith that all life is worth saving, and that mercy is the highest attribute of man.

“I feel that I should apologize for the length of time I have taken. This case may not be as important as I think it is, and I am sure I do not need to tell this court, or to tell my friends, that I would fight just as hard for the poor as for the rich. If I should succeed in saving these boys’ lives and do nothing for the progress of the law, I should feel sad, indeed. If I can succeed, my greatest reward and my greatest hope will be that I have done something for the tens of thousands of other boys, or the countless unfortunates who must tread the same road in blind childhood that these poor boys have trod, that I have done something to help human understanding, to temper justice with mercy, to overcome hate with love.

“I was reading last night of the aspiration of the old Persian poet, Omar Khayyam. It appealed to me as the highest that can vision. I wish it was in my heart, and I wish it was in the hearts of all:

‘So I be written in the Book of Love,
Do not care about that Book above.
Erase my name or write it as you will,
So I be written in the Book of Love.‘“

Judge Caverly, after deliberation, responded in part (you can read his entire statement here):

 In view of the profound and unusual interest that this case has aroused not only in this community but in the entire country and even beyond its boundaries, the court feels it his duty to state the reasons which have led him to the determination he has reached….A plea of guilty has been entered by the defense without a previous understanding with the prosecution and without any knowledge whatever on its part. Moreover, the plea of guilty did not in this particular case, as it usually does, render the task of the prosecution easier by substituting the admission of guilt for a possibly difficult and uncertain chain of proof. Here the State was in possession not only of the essential substantiating fact, but also of voluntary confessions on the part of the defendants. The plea of guilty, therefore, does not make a special case in favor of the defendant.

…The testimony introduced, both by the prosecution and the defense, has been as detailed and elaborate as though the case had been tried before a jury. It has been given the widest publicity and the public is so fully familiar with all its phases that it would serve no useful purpose to restate or analyze the evidence. By pleading guilty, the defendants have admitted legal responsibility for their acts; the testimony has satisfied the court that the case is not one in which it would have been possible to set up successfully the defense of insanity as insanity is defined and understood by the established law of this state for the purpose of the administration of criminal justice. The court, however, feels impelled to dwell briefly on the mass of data produced as to the physical, mental, and moral condition of the two defendants. They have been shown in essential respects to be abnormal; had they been normal they would not have committed the crime. It is beyond the province of this court, as it is beyond the capacity of humankind in its present state of development to predicate ultimate responsibility for human acts.

At the same time, the court is willing to recognize that the careful analysis made of the life history of the defendants and of their present mental, emotional and ethical condition has been of extreme interest and is a valuable contribution to criminology. And yet the court feels strongly that similar analyses made of other persons accused of crime will probably reveal similar or different abnormalities. The value of such tests seems to lie in their applicability to crime and criminals in general. Since they concern the broad question of human responsibility and legal punishment and are in no wise peculiar to the individual defendants, they may be deserving of legislative but not judicial consideration. For this reason the court is satisfied that his judgment in the present case cannot be affected thereby. The testimony in this case reveals a crime of singular atrocity. It is, in a sense, inexplicable, but is not thereby tendered less inhuman or repulsive. It was deliberately planned and prepared for during a considerable period of time. It was executed with every feature of callousness and cruelty. And here the court will say, not for the purpose of extenuating guilty, but merely with the object of dispelling a misapprehension that appears to have found lodgment in the public mind, that he is convinced by conclusive evidence that there was no abuse offered to the body of the victim.

But it did not need that element to make the crime abhorrent to every instinct of human ability, and the court is satisfied that neither in the act itself, nor in its motives or lack of motives, or in the antecedents of the offenders, can he find any mitigating circumstances…. For the crime of murder the statute declares: “Whoever is guilty of murder shall suffer the punishment of death or imprisonment in the penitentiary for his natural life or for a term not less than fourteen years. If the accused is found guilty by a jury they shall fix the punishment by their verdict; upon a plea of guilty, the punishment shall be fixed by the court.” …Under the pleas of guilty, the duty of determining the punishment devolves upon the court, and the law indicates no rule or policy for the guidance of his discretion. In reaching his decision the court would have welcomed the counsel and support of others. In some states the legislature, in its wisdom, has provided for a bench of three judges to determine the penalty in cases such as this. Nevertheless, the court is willing to meet his responsibilities. It would have been the task of least resistance to impose the extreme penalty of the law. In choosing imprisonment instead of death, the court is moved chiefly by the consideration of the age of the defendants, boys of eighteen and nineteen years.

It is not for the court to say that he will not, in any case, enforce capital punishment as an alternative, but the court believes it is within his province to decline to impose the sentence of death on persons who are not of full age. This determination appears to be in accordance with the progress of criminal law all over the world and with the dictates of enlightened humanity. More than that, it seems to be in accordance with the precedents hitherto observed in this State. The records of Illinois show only two cases of minors who were put to death by legal process…to which number the court does not feel inclined to make an addition.
 Life imprisonment, at the moment, strikes the public imagination as forcibly as would death by hanging, but to the offenders, particularly of the type they are, the prolonged suffering of years of confinement may well be the severest form of retribution and expiation.

The court feels it proper to add a final word concerning the effect of the parole law upon the punishment of these defendants. In the case of such atrocious crimes, it is entirely within the discretion of the department of public welfare, never to admit these defendants to parole. To such a policy the court urges them strictly to adhere; if this course is persevered in in the punishment of these defendants, it will both satisfy the ends of justice and safeguard the interests of society.

[At this point the sentences formally were passed as follows:]

“In no. 33,623, indictment for murder, the sentence of the court is that you, Nathan F. Leopold, Jr., be confined in the penitentiary at Joliet for the term of your natural life. The court finds that your age is 19.

 “In no. 33,623, indictment for murder, the sentence of the court is that you, Richard Loeb, be confined in the penitentiary at Joliet for the term of your natural life. The court finds that your age is 18.