This year marks the 80th anniversary of Clarence Darrow’s brilliant and passionate defense of Nathan Leopold and Richard Loeb, two wealthy teenagers who pled guilty to the kidnapping and murder of 14 year old Bobby Franks.   On August 22, 1924 Darrow gave his famous twelve hour closing statement, bringing tears to the eyes of the presiding judge and saving his clients from the death penalty.   Here are two excerpts from the summation:

Your Honor, I am almost ashamed to talk about it. I can hardly imagine that we are in the twentieth 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….

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. 

Essentially Darrow argued that what we do, and the way we are, ultimately comes down to luck.  We are responsible neither for our heredity nor for our environment, yet these factors taken together determine both the hand we’re dealt—our character—and perhaps more importantly, the way we play our hand: the choices we make, the acts we perform, the very thoughts that run through our heads.  A terrible crime, then, should be viewed like the effects of a hurricane or an earthquake.  There is no one to blame but nature (and nurture) itself.    

Darrow believed that science and philosophy were on his side.  He was right.  Although he occasionally confused determinism with fatalism, the core of his argument was philosophically sound; and recent advances in cognitive neuroscience have only made his position more plausible.  Darrow also predicted that the future was with him and what he stood for.  In this he was mistaken.   Eighty years later we remain in thrall to a retributive, blame-assigning worldview, one that shows no signs of receding.   Indignation, outrage, resentment, and hatred are everywhere, and all of these attitudes are grounded in an unjustifiable philosophical premise: that people can be ultimately responsible for their actions.   This deep mistake about the world is bipartisan.   Conservatives receive the most press for their rhetoric about personal responsibility, and their refusal to see society and background as an excuse for criminal behavior.  But liberals are just as prone to indignation and outrage—the difference is that their retributive energies are directed at different targets.  Ask any liberal whether they think George W. Bush, Dick Cheney, and John Ashcroft, are deserving of blame for their actions.   Suddenly, background and societal influences no longer seem to matter. 

Why is it so difficult to abandon the deeply problematic concept of free will and ultimate moral responsibility?  The answer is suggested in Samuel Johnson’s epigram: “All theory is against free will; all experience is for it.”   The decisive theoretical reasons for rejecting free will and moral responsibility fail to persuade, because we feel free.  We feel responsible.  True enough, but in almost every other field we allow logic and science (i.e. theory) to trump experience—why not here?   One reason is that the ethical implications of denying free will and moral responsibility seem terrifying.   We worry that embracing these ideals would lead to a world where “everything is permitted,” and no one is held accountable for anything.    

In fact, giving up on the idea of deep moral responsibility has no such anarchical or distressing consequences.   Let’s suppose we did start viewing terrible crimes as we do natural disasters.  Would this mean we would not try to prevent future crimes?  Of course not, no more than it would suggest that we not tape our windows or retrofit buildings to protect ourselves from hurricanes and earthquakes.   It would mean only that we cease to relentlessly blame criminals (or political figures) for their behavior.   Darrow did not deny that punishment has a pragmatic justification.   He understood that long prison sentences were appropriate for his young clients.  What he claimed was that punishment can only be pragmatically justified.  If you are unlucky enough to be the kind of person who commits crimes, you’ll have to be put away for it.  But society should not compound this misfortune by promoting retributive sentiments like resentment and bloodlust—what in our current lingo we call the need for “closure.” 

Admittedly, the idea that criminals do not morally deserve punishment is tough to accept.  But no more so than was the claim that the earth revolves around the sun.  The Copernican hypothesis also went against common experience and ethical orthodoxy.  It was resisted and feared, but eventually it won the day.  It’s my hope that Clarence Darrow’s view of the world will be similarly vindicated.  It is a view that is compassionate, uncompromising, and most importantly, correct.  

©  Tamler Sommers  9/2004