People V. Nathan F. Leopold, Jr., and Richard Loeb
Cook County Criminal Court #33623 and 33624

In May of 1924, two college graduates, Nathan Leopold and Richard Loeb (who’d earned their degrees, respectively, and in their late teens, from the Universities of Chicago and Michigan), committed a horrific crime. They’d kidnapped and murdered, for the intellectual challenge and thrill of it, fourteen-year-old Bobby Franks, dumping his body in a marshland culvert in northwest Indiana. In doing so, the pair failed to notice that Leopold had dropped his glasses near the corpse, a clue enabling the police to track them down.

The ensuing trial garnered a great deal of notoriety as these two privileged, despicable characters faced what promised to be execution for their deed. Yet their families secured the services of star attorney, Clarence Darrow, who would go on, the next year, to defend Tennessee school teacher, John Scopes, in the famous “Monkey Trial” in Dayton, Tennessee. Instead of seeking release for the two young murderers, Darrow had them enter guilty pleas, and then focused on winning them life imprisonment rather than the death penalty. In this, he succeeded.

Darrow used every angle he could muster to sway the judge, arguing, among other things that massive and unfair coverage has driven the public to reflexively demand the death penalty; that Loeb was an avid reader of crime stories, a practice known to warp the character of young people; that there “was not a particle of hate . . . not a grain of malice” in this “senseless, useless, purposeless, motiveless act”; that as a spider kills a fly, “they killed him because they were made that way”; that the wealth of their families had corrupted their minds, protecting them from the challenges that shape ordinary lives; that execution would deter no one, but rather it would stir a “weak minded person” to replicate their act; that execution wouldn’t bring back the victim, and besides, Bobby had suffered little before he died; that youth were beset with powerful emotions; that World War I had made the nation callous toward life; that execution would bring unfair disgrace upon their two families; that resentment of their wealth was driving the call for execution beyond what it would have been had the boys been poor; that the hard lesson had already been learned—parents and society must attend more closely to the nurture of their children; that reading Nietzsche corrupted Leopold’s mind and spirit; that Illinois had not executed men their age, and it would be turning back the clock toward the time when children were executed in England; that life imprisonment was plenty grim; that we must follow the path of love, not the one of blood lust.

Thus it went on and on, for two days, a tour de farce more than a tour de force. Darrow had rejected a jury trial by having the boys plead guilty, for, as he explained in flattering terms to the judge, “his honor” had the wisdom of years that would allow him to rule with equanimity rather hysteria, especially when he heard such exalted rhetoric as this:

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.

No one with wisdom and with understanding, no one who is honest with himself and with his own life whoever he may be, no one who has seen himself the prey and the sport and the plaything of the infinite forces that move man, no one who has tried and who has failed—and we have all tried, and we have all failed—no one can tell what justice is for someone else or for himself—and the more he tries and the more responsibility he takes the more he clings to mercy as being the one thing which he is sure should control his judgement of men.

Thus are we tutored in the demands of “justice.”

Philosophers have been at this project since Socrates’ day, when, in The Republic, Plato shows him both rejecting bad definitions of justice (“that which is in the interest of the powerful”) and proposing his favorite (popularly rendered as “everyone’s minding his own business”). And, in the centuries since, the topic has been broken down into a range of genres, whether retributive, distributive, compensatory, procedural, and restorative. And the schools of thought on these desiderata fall into two broad categories—teleological (with focus on consequences) and deontological (with focus on duty).

Darrow rings chimes in both churches. In the teleological sanctuary, he makes claims about the level of suffering the parents and miscreant sons will endure; about lessons learned for going forward; about the impossibility of bringing back the victim; about the slim prospects for deterrence; about the slippery slope back toward the execution of minors. Meanwhile, over in the deontological chapel, he dismisses the demands of the lex talionis (“eye for eye”) with mitigating/extenuating (lessening) and exonerating/exculpatory (dismissing) factors. He argued that the boys were simply not responsible for what they had done; rather, the blame rested upon all the physical, historical, and cultural forces that had shaped them. Furthermore, the people were in no position to secure justice, given their fevered state of mind and epistemological limitations. Retribution was simply a non-starter on Darrow’s model.

In pleading for mercy on account of their inability to do otherwise, he echoed a ruling that came down some eighty years earlier in England, the M’Naghten case, wherein Daniel M’Naghten, who shot the wrong man while trying to assassinate the prime minister, was spared execution on account of insanity. According to the court, a defendant could be excused from responsibility for his deed (though not from incarceration for the sake of public safety) if, “at the time of the committing of the act, the party accused was labouring under such defect of reason, from a disease of the mind, as not to know the nature and quality of the act he was doing; of, if he did know it, that he did not know he was doing what was wrong.”

It’s pretty clear that the “M’Naghten Rule” alone would not have sufficed to save Leopold and Loeb. Not only did they know that what they were doing was wrong; they gloried in it. After all, their mentor, Nietzsche, had written, in Beyond Good and Evil, “The great epochs of our life come when we gain the courage to rechristen our evil as what is best in us” (the same Nietzsche who celebrated the “Superman,” who turned the clock back to the day when ‘good’ meant “intimidating,” a time before sniveling Jews and Christians had recast character defects such as kindness and gentleness as virtues).

Interestingly, C.S. Lewis argued (in “The Humanitarian Theory of Punishment”) that those who dismissed the death penalty on account of love and kindness were misguided, for there was no limit to the horrors that could be visited upon defendants if “enlightened” criteria such as rehabilitation, incarceration, and deterrence were allowed to hold sway. In contrast, only retribution insisted on limits while recognizing the dignity of the malefactor.

Those familiar with current social discourse are aware that the term ‘justice’ is invoked ad nauseum, with  a good deal of hyperbole and nonsense mixed in with insightful and exalted talk on the subject. Furthermore, it’s used with reference to everything from taxes to wages to wars to college admissions to police profiling to immigration to the admissibility of evidence. And various champions are knighted to carry the conceptual causes into battle (such as, for instance, the Harvard colleagues, John Rawls and Robert Nozick, respectively the darlings of liberals and conservatives). But, again, it boils down to whether justice is essentially a matter of principles and rules (deontology) or impacts and outcomes (teleology).