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.


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