Evillution, Intelligent Design

How crime became ‘scientifically’ studied

We are going to discuss how Darwinian evolution and the theory of natural selection have had an effect upon our justice system. We are quoting directly from individuals who had an important say in their area of expertise and by which many other individuals blindly followed their lead. I do not expect you to spend the amount of money I have spent to actually purchase the resource books I have listed in the endnotes. If you do great, if not, many are available on line or you can have your local county or if you are a student, college or university borrow the books from another library if you wish to check the accuracy of the quotations. Then we can debate, if you wish, my conclusions. Some of the endnotes describe briefly the person who is being introduced, it helps to understand that to get a grasp of how his beliefs formed his views on the subject matter.

A criminal “must first be found to be deserving of punishment before any consideration is given to the utility of this punishment for himself or for his fellow citizens,” wrote Immanuel Kant[i] at the close of the eighteenth century[ii]. Kant’s statement explained the traditional underpinning of punishment in Western jurisprudence by which criminals were punished not simply to protect society, or to prevent them from engaging in future crimes, but because their actions were morally blameworthy[iii]. Built into this view of punishment is the idea that most criminals have the freedom to choose whether or not to engage in criminal behavior. This moral freedom then, makes it just for society to hold criminals morally accountable for their actions.

By Kant’s time, reformers such as Cesare Beccaria[iv] and Jeremy Bentham[v] were already deemphasizing the concept of punishment as the deserved penalty for committing a crime, preferring to defend punishment on utilitarian grounds of safety and deterrence[vi]. The utilitarian reformers continued to assume that most criminals had the ability to choose whether or not to engage in crime, and that they were somehow morally blameworthy. Nineteenth-century science challenged those assumptions head-on. In his notebooks, Charles Darwin struggled with the serious consequences that scientific materialism posed for human free will and responsibility, but for the most part, he chose to keep his misgivings to himself. Some of Darwin’s followers, such as Ludwig Büchner[vii], were more daring. By the early 1890s, the book had gone through fifteen editions in German and four in English[viii].

In a chapter titled “Free Will,” Büchner tried to show how humans had considerably less freedom than they thought. More nuanced than some of the eighteenth-century materialists, Büchner was willing to grant that “the more highly a man is intellectually developed and trained, the stronger is his will and the greater his responsibility.”[ix] Yet one has to question his overall rationality when he uses such off the wall explanations, such as suggesting that the “restless and almost feverish excitability” of Americans could be traced to “the excessive dryness of the air” in the United States.[x] You have to wonder if his mind has snapped.

Turning his attention to crime, Büchner stated that “the vast majority of those who offend against the laws of the State and of Society ought to be looked upon rather as unfortunates who deserve pity than as objects of execration.” (i.e. something that is cursed or detested)[xi] In his view, most criminals were compelled to break the law because of physically defective brains, lack of education and mental training, or poverty. “What is the good of free will to him who, from necessity or acting under the impulse of the irresistible tendency of self-preservation, lies, steals, robs, and murders? To what extent can a man be held accountable for his actions whose destructiveness and whose leaning towards cruelty are great, while his powers of reason are small?”[xii] Büchner added that the brain abnormalities in many criminals showed that they were throwbacks to “the brains of pre-historic men.”[xiii] He concluded by citing another writer who advised that “we should do best in neither judging nor condemning anyone.” According to Büchner, future generations “will look back on the criminal trials of the present time with feelings akin to those with which we regard the trials for witchcraft and the inquisition of the Middle Ages.”[xiv] These themes would be repeated over and over in subsequent decades by thousands of ‘scientifically’ oriented doctors, social scientists, and jurists.

Natural Born Criminals became the calling cry of the progressives. It reminds me of the movie “Natural Born Killers” in 1974 that became a cult hit. It was not their fault they murdered all those people, they were just the product of their unhappy childhoods.

By the end of the nineteenth century, American scholars were talking with excitement about the “new school of criminal anthropology,” which sought to use modern science to identify the causes of crime. Leading the way was Italian criminologist Cesare Lombroso[xv] , whose book Criminal Man (1876) remains (after more than 125 years) a landmark work in the field of criminology. Lombroso and his disciples contended that criminal behavior could be explained largely as a throwback to earlier stages of Darwinian evolution. According to Lombroso, infanticide, parricide, theft, cannibalism, kidnapping, and antisocial actions can all be found throughout the animal kingdom, as well as among human savages[xvi]. In earlier stages of development such behaviors aided survival and were therefore bred into animals by natural selection. As William Noyes, one of Lombroso’s American disciples, explained, “[ I] n the process of evolution, crime has been one of the necessary accompaniments of the struggle for existence.”[xvii] While crime no longer served a necessary survival function in civilized societies, many modern criminals could be considered atavists— humans in whom characteristics of earlier stages of evolutionary development reappeared. According to Lombroso, such atavists were “born criminals,” exhibiting from birth the physical as well as behavioral characteristics of savages. Physical markers of such individuals included “abundant hair,” “sparse beard[ s],” “enormous frontal sinuses and jaws,” “broad cheekbones,” a “retreating forehead,” and “voluminous ears.”[xviii] Now I must take umbrage with this in that I have large ears, and with the short haircuts my dad insisted on, they really stuck out. I was called “Dumbo” (for those of you who are young, a Disney character- a flying elephant. Moreover, I was 5 foot 10 inches and only weighed about 110 pounds so not very elephant looking like.)

Lombroso was criticized for focusing on biology to the exclusion of environmental factors, and in subsequent writings, he attempted to make clear that he did not think that every criminal was a “born criminal.” He explored a variety of environmental determinants of crime, including climate, food, education, poverty, religion, and the use of alcohol. Nevertheless, Lombroso maintained that organic factors accounted for 35 to 40 percent of criminal activity, observing that the “so-called [environmental] causes of crime” were “often only the last determinants” of a crime, while “the great strength of congenital impulsiveness [was] the principal cause.”[xix]

Lombroso and his followers repudiated the traditional idea that “crime involved … moral guilt.” Invoking modern science in general and the work of Charles Darwin in particular, Italian jurist Enrico Ferri,[xx] one of Lombroso’s most celebrated disciples, argued that it was no longer reasonable to believe that human beings could make choices outside the normal chain of material cause and effect. Maximizing the controversy over Darwin’s ideas as great as the Jedi Masters, it is a battle between the forces of enlightenment and “the lovers of darkness.” Ferri applauded Darwin for showing “that man is not the king of creation, but merely the last link of the zoological chain, that nature is endowed with eternal energies by which animal and plant life … are transformed from the invisible microbe to the highest form, man.” Ferri looked forward to the day when punishment and vengeance would be abandoned and crime would be treated as a “disease.”[xxi]

Although Lombroso and his followers tried to sever the link between crime and moral guilt, they did not think that criminals should be left alone to pursue their antisocial activities. They agreed with the utilitarian’s that society must be able to defend itself against criminals. They merely insisted that measures taken against criminals be aimed a cure rather than punitive in nature. The goal of criminal justice should not be to punish but to cure— at least in those cases where they thought cures were possible. Lombroso and his supporters described their approach as much more humane than a system based on retribution that the traditional theory of punishment sometimes allowed. Yet the humanitarian theory of justice promoted by Lombroso had a somewhat darker side of its own.

Lombroso’s emphasis on rehabilitation rather than punishment seemed to give doctors and psychiatrists almost absolute power over offenders. It seemed to create the opportunity that many criminals would be warehoused forever until their doctors certified them as “cured.” And what happened to the criminals who could never be cured? Lombroso believed that rehabilitative efforts were completely useless when applied to the major proportion of offenders he categorized as “born criminals.”[xxii] In his view, such persons might have to be locked up permanently[xxiii]. But given Lombroso’s view that born criminals were throwbacks to earlier stages of evolution, why should they even be allowed to live? “You have shown us fierce and lubricious orangutans with human faces,” wrote one admirer to the Italian criminologist. “It is evident that as such they cannot act otherwise. If they ravish, steal, and kill, it is by virtue of their own nature and their past, but there is all the more reason for destroying them when it has been proved that they will always remain orangutans[xxiv].” Lombroso quoted the words of his correspondent in one of his books without criticism.

This was the sort of thinking that helped lead to the Nazi war crimes of experimenting on human subjects for the pure delight of it.

The superior humanitarianism of this new criminology was dubious concern. In the traditional view, adult criminals generally are regarded as responsible individuals who have the ability to make choices. In the new view, adult criminals are reduced to the level of “children” and “moral invalids” who need to be treated by experts[xxv]. In the traditional view, sentences for non-capital offenses were to be specific and limited. An idiom developed, “Don’t do the crime if you can’t do the time.” In the new medical model of criminal justice, sentences would be indefinite, because no one could tell beforehand how long it would take to effect a cure- two people with the same crime could take different times to be “cured”. In the traditional view, with its sharp distinction between guilt and innocence, safeguards were regarded as essential to prevent innocent people from being wrongly convicted. In Lombroso’s scientific justice system, these safeguards were regarded as an inefficient interference with the scientific enterprise, and he attacked such basic components of the traditional justice system as juries, public trials, the right of appeal, and the adversarial process that allows for a separate prosecution and defense[xxvi]. Defenders of the traditional view found the new approach anything but humanitarian. Writing after the medical model for criminal justice gained ascendancy in the twentieth century, C. S. Lewis lamented that the new view, “merciful though it appears, really means that each one of us, from the moment he breaks the law, is deprived of the rights of a human being[xxvii].”

Whatever the deficiencies of his theories, Lombroso was a seminal figure in the founding of the scientific study of crime. Perhaps his most important role was helping to inaugurate criminology’s quest for the Holy Grail— the search for the material basis of crime. Although many of Lombroso’s particular findings were quickly superseded, the professional literature of the last hundred years is littered with studies purporting to identify the biological, chemical, psychological, and environmental causes of crime. That literature makes for interesting reading, because it shows the lengths to which social scientists were willing to go in applying the tenets of scientific materialism, even on the thinnest of evidence. American researchers inspired by Lombroso were soon making the case for the physical and hereditary foundations of crime.

In 1894, American physician James Weir published a study in the Medical Record seeking to corroborate Lombroso’s approach of identifying criminals by bodily characteristics. Weir paid special attention to ear size. Noting that an Italian researcher had found “that fully eighty per cent of criminals have abnormal ears, and that large ears indicate a murderous tendency, while small ears indicate a thievish nature,” Weir stated that his own observations confirmed these findings. “I have never seen a large ear in an habitual thief, nor have I ever seen a small ear in a murderer.” Weir’s study contained numerous other nuggets of wisdom, including a claim that “with an abnormal brain we may always expect to find an abnormal ear. Wardens and keepers of penitentiaries have often told me that they could tell a thief from a murderer by the size and shape of the ears[xxviii].” Again I must protest on behalf of the size of my ears, which for the past 35 years have not seen daylight due to the wearing of my hair long- I guess I fell prey to the bullying.

Weir further reported that criminals had a “great lack of sensibility to pain,” and according to prison doctors, even prefer to be operated on without anesthetic (at least in “minor operations”)! Moreover, criminals are “like the lower animals” in the “rapidity with which [they] recover from wounds[xxix].” Embracing Lombroso’s theory of atavism, Weir asserted that the “instinctive criminal … is antisocial simply because he is morally and mentally an atavism … Atavism has hurled him back thousands and thousands of years, and has placed him beside his pithecoid ancestor[xxx].” Weir ended by contrasting the consideration given the “intellectually insane,” who are housed in “asylums where they are presumably treated with kindness,” with the treatment of the criminally insane, who are either executed or incarcerated in “penitentiaries, prisons, and workhouses.” “Poor unfortunates!” he exclaimed. “Are they to be held responsible for Nature’s vagaries? Enlightened humanity has a difficult problem to solve, when it is asked the question, ‘What will you do with the Criminal?[xxxi]’”

In 1913, British prison doctor William Goring discredited many of Lombroso’s specific findings about the physical characteristics of criminals with a study of his own comparing criminals to non-criminals. However, Goring’s study was far from a rejection of the biological approach to crime. Despite its criticisms of Lombroso, the study reaffirmed the existence of certain physical differences between criminals and non-criminals; and Goring estimated that 60 percent of criminal behavior could be assigned to heredity as opposed to environment[xxxii]. The general idea that there was a hereditary component to crime became widespread in America. The result was a vigorous movement to curtail childbearing by criminals and others considered socially undesirable, lest the undesirables bequeath their antisocial tendencies to their children[xxxiii].

By the 1920s and ’30s, the search for physical factors in crime gradually turned from heredity to body chemistry, with particular attention being paid to endocrine glands, which are involved in regulating the body’s metabolism. Psychiatrists testifying for the defense in the Leopold-Loeb case argued that endocrine abnormalities played a role in the mental condition of the defendants[xxxiv]. In a paper presented to the Society for Medical Jurisprudence in 1931, Dr. Louis Berman proposed that given the link between endocrine glands and crime, “it should be possible to modify, palliate, or even completely abolish criminal behavior by means of correction of the discovered glandular malfunctioning[xxxv].” Berman urged that every child be subjected to periodic inspections of his or her endocrine glands in order “to prevent the appearance of criminal tendencies and criminals.” In his view, “early diagnosis and treatment in childhood and adolescence will eliminate the potential criminal[xxxvi].” In the 1950s, psychiatrist Edward Podolsky updated the findings relating to body chemistry in a journal article titled “The Chemical Brew of Criminal Behavior.” Stating that “not all human behavior is chemically determined,” Podolsky added somewhat contradictorily that “life, in the final analysis, is a series of chemical reactions.” He went on to catalog various chemical triggers of crime, including low blood sugar (“ a father almost strangled his daughter during one of these sugarless episodes”), a lack of calcium (“ Quite often violent tempers have their roots in calcium deprivation”), and low levels of lime (“ the person whose lime level is below normal has a tendency to shout and scream and strike”)[xxxvii]. Acknowledging that “the biochemical evaluation of the criminal personality and of criminal behavior” was “still in its infancy,” Podolsky held great hopes for its future efficacy in the treatment and eradication of crime.[xxxviii]

All right, a long enough discussion. I could go on and on and on and on with examples of similar thinking by ‘so-called’ experts of their day. The important thing to realize is the effect ehy are having on the practitioners of today.

Next: The Psychosocial Explanations of Crime. Then we will turn to detailed discussions of wealth and poverty, schools and scholars, and life and death. The tenets of Darwinism have infiltrated all of Western civilization- and not for the good of it, either.


[i] Kant was a German philosopher who is widely considered to be a central figure of modern philosophy. He argued that fundamental concepts structure human experience, and that reason is the source of morality. His thought continues to have a major influence in contemporary thought, especially the fields of metaphysics, epistemology, ethics, political philosophy, and aesthetics

[ii] Immanuel Kant, The Metaphysical Elements of Justice, trans. John Ladd (New York: Library of Liberal Arts, Macmillan, 1965), 100.

[iii] The importance of moral blame to the traditional justification of punishment is seen early in the history of civilization. As far back as the celebrated Code of Hammurabi (circa 1700– 1800 BC), lawgivers attempted to assign punishments based on the moral culpability of the lawbreakers. For a good treatment of ideas about moral responsibility and crime from the ancient world to the development of the English common law, see Eugene R. Milhizer, “Justification and Excuse: What They Were, What They Are, and What They Ought to Be,” St. John’s Law Review 78: 725– 93. For an interesting discussion of criminal culpability in the works of Cicero and Roman law, see Richard A. Bauman, Crime and Punishment in Ancient Rome (New York: Routledge, 1996), 39– 40.

[iv] An Italian criminologist, jurist, philosopher, politician and one of the most influential of the Enlightenment thinkers. He is best known for his treatise On Crimes and Punishments (1764), which condemned torture and the death penalty, and was a founding work in the field of penology. He promoted criminal justice. Cesare Beccaria’s book, On Crimes and Punishments, had a profound influence on the Founding Fathers of the United States, including John Adams, Thomas Jefferson, James Wilson, Dr. Benjamin Rush, and others.

[v] ) was a British philosopher, jurist, and social reformer. He is regarded as the founder of modern utilitarianism.

Bentham became a leading theorist in Anglo-American philosophy of law, and a political radical whose ideas influenced the development of welfarism. He advocated individual and economic freedom, the separation of church and state, freedom of expression, equal rights for women, the right to divorce, and the decriminalizing of homosexual acts. He called for the abolition of slavery, the abolition of the death penalty, and the abolition of physical punishment and was known as an early advocate of animal rights.

[vi] See Elio Monachesi, “Cesare Beccaria,” and Gilbert Geis, “Jeremy Bentham,” in Pioneers of Criminology, ed. Hermann Mannheim (London: Stevens and Sons, 1960), 36– 50, 51– 67.

[vii] Was a German philosopher, physiologist and physician who became one of the exponents of 19th century scientific materialism.. From 1842 to 1848 he studied physics, chemistry, botany, mineralogy, philosophy and medicine. In 1852 he became lecturer in medicine, where he published his magnum opus Force and Matter: Empiricophilosophical Studies, 1855. In this work, he sought to demonstrate the indestructibility of matter, and the finality of physical force.

[viii] Ludwig Büchner, Force and Matter, or Principles of the Natural Order of the Universe (New York: Peter Eckler, 1891); Desmond and Moore, Darwin, 656– 57.

[ix] Büchner, Force and Matter, 375.

[x] Ibid., 369.

[xi] Ibid., 375.

[xii] Ibid., 377.

[xiii] Ibid., 376.

[xiv] Ibid., 378.

[xv] Was an Italian criminologist, physician, and founder of the Italian School of Positivist Criminology. Lombroso rejected the established classical school, which held that crime was a characteristic trait of human nature. Instead, using concepts drawn from physiognomy, early eugenics, psychiatry and Social Darwinism, Lombroso’s theory of anthropological criminology essentially stated that criminality was inherited, and that someone “born criminal” could be identified by physical (congenital) defects, which confirmed a criminal as savage or atavistic.

[xvi] Maurice Parmelee, “Introduction,” in Cesare Lombroso, Crime: Its Causes and Remedies, trans. Henry Horton (Montclair, N.J.: Patterson Smith, 1968), xiv– xv; William Noyes, “The Criminal Type,” Journal of Social Science 24 (April 1888): 32– 34. For a discussion of Lombroso and Social Darwinism, see Mike Hawkins, Social Darwinism in European and American Thought, 1860– 1945 (Cambridge: Cambridge University Press, 1997), 74– 80.

[xvii] Noyes, “Criminal Type,” 34.

[xviii] quoted by Parmelee in Lombroso, Crime, xviii.

[xix] Lombroso, Crime, 376.

[xx] Was an Italian criminologist and socialist. Ferri investigated social and economic aspects of crime. In 1884 his book Criminal Sociology was published. Ferri became one of Mussolini and his National Fascist Party’s main external supporters.

[xxi] Ferri, “The Positive School,” 137– 38.

[xxii] Lombroso, Crime, 432.

[xxiii] Ibid., 424.

[xxiv] Ibid., 428.

[xxv] Ibid., 342.

[xxvi] Ibid., 353– 60.

[xxvii] C. S. Lewis, “The Humanitarian Theory of Punishment,” in God in the Dock: Essays on Theology and Ethics, ed. Walter Hooper (Grand Rapids, MI: Eerdmans, 1970), 288.

[xxviii] Ibid., 44.

[xxix] Ibid., 45.

[xxx] Ibid.

[xxxi] Ibid.

[xxxii] William Goring, The English Convict: A Statistical Study (London: Darling and Son, 1913); James Q. Wilson and Richard Herrnstein, Crime and Human Nature (New York: Simon and Schuster, 1985), 75– 77.

[xxxiii] This movement, known as “eugenics,” and I’ll have a series on that also.

[xxxiv] Sellers, The Loeb-Leopold Case, 26– 27, 31– 32.

[xxxv] Louis Berman, “Crime and the Endocrine Glands,” American Journal of Psychiatry (September 1932), 223.

[xxxvi] Ibid., 234.

[xxxvii] Edward Podolsky, “The Chemical Brew of Criminal Behavior,” Journal of Criminal Law, Criminology, and Police Science 45 (March– April 1955): 676, 677.

[xxxviii] Ibid, 678.


The Evillution of Criminal Justice

A lot of the following information can be found on: http://en.wikipedia.org/wiki/Leopold_and_Loeb as well as the articles for Darwin, “Scopes Monkey Trial”, evolution and the books written by Mr. Charles Darwin himself. This is a synopsis of a considerable amount of study in the area of social psychology, sociology, criminology, punishment, the U.S. Constitution and various media descriptions of some of the more notorious crimes in American history for the past 100 years. We will get somewhat deep into the subject matter, but all resources are in the bibliography and you have my permission to read them and come to your own conclusions about the subjects under discussions.

No one has accomplished such sustaining damage to the Evillution of our American criminal justice system (and by default the processes by which incarceration is maintained) in the 20th century than the lawyer know as Clarence Darrow. One would expect that our system of jurisprudence would change and modify itself in relation to society in general as it changed. However, the impact of Mister Darrow and his extremely liberal evolutionary ideas is what has allowed prisoners to have TVs, specialized diets, and sex change operations at the expense of us, the American taxpaying public.

More famous for the Scopes Monkey Trial in 1925, this murder trial has had further reaching effect than the previously mentioned trial – even though that trial was made famous by a movie “Inherit the Wind” staring Spencer Tracy and a Broadway play.

Darrow’s impassioned 12-hour-long “masterful plea” at the conclusion of the sentencing hearing has been called the finest speech of his career.[1] Its principal theme was the supposedly inhuman methods and punishments of the American justice system.

What murder trial are we talking about? Nathan Freudenthal Leopold, Jr. and Richard Albert Loeb, commonly known as “Leopold and Loeb”, who were two wealthy students at the University of Chicago. They kidnapped and murdered 14-year-old Robert “Bobby” Franks in Chicago, in 1924, in what was widely described as “the crime of the century”. To demonstrate their supposed intellectual superiority by committing a “perfect crime “, they killed Franks. Both men were sentenced to life imprisonment plus 99 years. Loeb was killed by a fellow prisoner in 1936; Leopold was released on parole in 1958.

In order to avoid having the case tried before a hostile jury; Darrow had Leopold and Loeb plead guilty to the crimes of murder and kidnapping. The guilty plea circumvented a trial and moved the case to a sentencing hearing presided over by Judge John R. Caverly (a judge known for legislating from the bench, a liberal activist[2]). Darrow thought he would have a better chance if he could make his arguments to the judge alone.

Darrow’s speech summarized the scientific ideas about crime that were becoming widely accepted among America’s intellectual elite. The question before the court, according to Darrow’s insistence, was whether it should embrace “the old theory” that “a man does something … because he willfully, purposely, maliciously and with a malignant heart sees fit to do it;” or the new theory of modern science that “every human being is the product of the endless heredity back of him and the infinite environment around him.”[3]   Darrow appealed for the court to embrace the truth that human beings are machines determined wholly by their heredity and environment.

In Darrow’s eyes, it was Leopold and Loeb who were the “victims” of this tragedy.[4] “They killed [Bobby Franks]… 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.”[5] Darrow relentlessly drove home his message of unvarnished scientific materialism, especially when discussing Richard Loeb. “Is he to blame that his machine is imperfect?” Darrow asked the court.[6]

For all of his discussion of heredity, Darrow did not claim to really know or understand what part of Loeb’s “machine” was broken. He merely ‘knew’ that it had to be broken. Why else would he have committed the murder?“ Certainly not because he just wanted to and he planned it, and worked out all the details with his friend. “I know that somewhere in the past that entered into him something missed. It may be defective nerves. It may be a defective heart or liver. It may be defective endocrine glands. I know it is something. I know that nothing happens in this world without a cause.”[7]

From the transcript, we have this enlightened revelation by the prosecutor:

“I think sometimes that we are dreaming here. When the learned doctor got on the stand who had been employed to find out jut how crazy these two fellows were, he was probably instructed: ‘Just make them crazy enough so they won’t hang, but don’t make them crazy enough to make it necessary to put this up to twelve men, because twelve men are not going to be fooled by your twaddle. Just make them insane enough so it will make a mitigating circumstance that we can submit to the Court.’ One of these men who had been employed to examine into the mental condition of Leopold, got upon the stand and he is asked: “

“Doctor, do you know that Leopold has written a great deal upon the subject of Ornithology, that he is one of the authorities on that subject in the United States, that he had lectured before the students at Harvard University upon that subject?”

Yes, sir; I do.”

“Did you see his work?”


“Did you read that?”


“You were employed to examine that man, weren’t you?”


“What did you do?”

I examined his urine.”

“Don’t you think you could get a better idea of his mental condition by reading the things that he wrote, the product of his brain, than you could by examining his urine?”

I don’t know,” was his reply.

This speaks volumes about not only Darrow and his philosophy but also how totally uneducated in their own disciplines the so-called professionals were in trying to fit the “new science” into that discipline.

In defending Loeb, Darrow based most of his argument on heredity. When defending Leopold, Darrow reversed himself and focused almost exclusively on his environment.

While stating that he thought Leopold suffered from a “diseased mind,” Darrow spent much of his time arguing that Leopold had been driven to murder by the philosophy of Nietzsche, which he had studied while a student at the University of Chicago. According to Darrow, Leopold was deluded into thinking that he was Nietzsche’s “superman” and therefore that the ordinary rules of morality did not apply to him.

“Your Honor,” Darrow told the judge, “it is hardly fair to hang a nineteen-year-old boy for the philosophy that was taught him at the university. The university, the scholars and publishers of the world would be more to blame than he is.” Darrow quickly added that he did “not believe that the universities are to blame” either. “I do not think they should be held responsible.”[8] In fact, Darrow came very close to stating a principle that is becoming almost rampant in our society; that no one could ever be held responsible for anything: “I know that every influence, conscious and unconscious, acts and reacts on every living organism, and that no one can fix the blame.”[9]

Although Darrow made this particular argument in order to spare his clients from the death penalty rather than to exempt them from punishment entirely, the views he put forth to the judge were scaled for a much wider application, and he knew it. It was his theory of scientific principles of criminology that partly motivated Darrow’s lengthy presentation. As he told the judge:” 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 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”.[10] Pretty egotistical of himself don’t you think, that others would not get the ‘impressive’ defense that he was providing the ‘boys.’

If Darrow was right and criminals are programmed for crime by material forces over which they have no control, why should one stop with simply the abolition of the death penalty? If it was true that no one was responsible for his or her actions, the very idea of punishment then seems unjust.

Robert Crowe, the state’s chief prosecutor in the case, fully understood what Darrow was trying to do. He was trying to advance his ideas about crime and responsibility, and Crowe was not going to allow Darrow’s claims to go without disputing them.   In Crowe’s view, what was really on trial during the hearing was “Darrow’s dangerous philosophy of life.”

Crowe brought into evidence extensive excerpts from another Darrow speech to prove his point.[11] The speech had been delivered to prisoners at the county jail more than two decades earlier, and it showed just how far Darrow was prepared to press the implications of his scientific doctrines. Embarrassed by having his own words quoted back at him, Darrow protested to the judge that his old speech did not have “anything to do with this case.”[12] As a matter of legal evidence, Darrow was undoubtedly correct. However, as a matter of legal philosophy, his earlier comments certainly exposed the full implications of his view for the traditional criminal justice system.

Darrow had told the prisoners that there was no difference whatever in moral condition between themselves and those who were free. “I do not believe people are in jail because they deserve to be,” he declared. “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[13].” When speaking to Judge Caverly, Darrow focused his criticism on the operation of the death penalty. However, speaking to the prisoners, Darrow was not so limited. “There ought to be no jails,” he told the prisoners, “and if it were not for the fact that the people on the outside are so grasping and heartless in their dealing with the people on the inside, there would be no such institutions as jails[14].” He added that he knew why “every one” of the prisoners committed his crime, even if he did not know the reason himself: “You did these things because you were bound to do them[15].” Those prisoners who thought they made a choice to commit a crime were simply deluded. “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.” As if such statements were not inflammatory enough, Darrow even suggested that the police were the real criminals, and he concluded by claiming that pleasure was the ultimate basis for morality: “I believe that progress is purely a question of the pleasurable units that we get out of life. The pleasure-pain theory is the only correct theory of morality, and the only way of judging life.[16]

Sound familiar with any current events happening in America today. Baltimore, New York City, Ferguson all blaming the officers.

Crowe responded that the philosophy Darrow propounded to the prisoners was indistinguishable from the doctrines of his client Leopold, and he charged that society would self-destruct if the justice system ever adopted such ideas. Crowe lamented that it would have been better for Bobby Franks’s murder to go unsolved than for the judge to place his official sanction “upon the doctrines of anarchy preached by Clarence Darrow … Society can endure, the law can endure, if criminals escape; but if a court such as this court should say that he believes in the doctrines of Darrow, that you ought not to hang when the law says you should, a greater blow has been struck to our institutions than by a hundred, aye, a thousand murders.[17]

Despite Crowe’s prediction of doom, Judge Caverly rejected the prosecution’s call for the death penalty and gave the defendants life imprisonment instead. the judge did carefully refrain from embracing Darrow’s scientific speculations. While noting that the scientific analysis presented by the lawyers and various expert psychiatrists at the hearing raised “broad questions of human responsibility and legal punishment,” Caverly observed that these questions were more appropriate for legislative rather than judicial consideration. In the end, the judge said he based his decision largely on the young age of the defendants[18].

From a narrow legal standpoint, the effect of the Leopold-Loeb case was negligible. Conducted as a sentencing hearing, the case set no precedent, and Judge Caverly carefully refused to break new ground in his decision. Yet from a broader cultural standpoint, the case was a watershed. It publicized the far-reaching nature of the challenge posed by science to the traditional justice system. While Darrow’s ideas likely sounded far-fetched to the great majority of Americans at the time, the ideas themselves were far from uncommon among the growing numbers of college-educated doctors and social scientists who were committed to the scientific study of crime and its causes. In fact, the Leopold-Loeb case merely brought out into the open the scientific ideas that were already forging a revolution in the traditional understanding of both crime and punishment. That revolution had deep roots in nineteenth-century biology.

Next How crime became “scientifically” studied

[1] Darrow’s summation for the defense. University of Missouri-Kansas City School of Law. Retrieved May 10, 2015

[2] http://law2.umkc.edu/faculty/projects/ftrials/leoploeb/BIO_CAVE.HTM

[3] Alvin Sellers, The Loeb-Leopold Case, with Excerpts from the Evidence of the Alienists and Including the Arguments to the Court by the Counsel for the People and the Defense (Brunswick, GA: Classic Publishing Company, 1926), 156.

[4] Ibid., 134.

[5] Ibid., 133.

[6] Ibid., 155, 156.

[7] Ibid., 155.

[8] Ibid., 182.

[9] Ibid., 180– 81.

[10] Ibid., 151– 52.

[11] Ibid., 315.

[12] Orville Dwyer, “Great Trial Ends,” Chicago Tribune, Aug. 29, 1924, 1.

[13] Sellers, The Loeb-Leopold Case, 312.

[14] Sellers, The Loeb-Leopold Case, 312.

[15] Ibid., 314.

[16] Ibid., 314, 315.

[17] Ibid., 315– 16.

[18] Ibid., 319– 21.