The Watcher Cat

The Watcher Cat

Saturday, April 28, 2018

Clarence Darrow's Betrayed Hope: The Persistence of the Penalty of Death

I'm currently blowing through John A. Farrell's compellingly readable Clarence Darrow: Attorney for the Damned (2011), which is, quite simply, the best biography of Darrow since Irving Stone's Clarence Darrow for the Defense (1939). Previous biographies failed to match Stone's sweep and narrative verve, or, like Kevin Tierney's Darrow: A Biography (1981), are too glib in making the revisionist anti-Darrow case (Tierney's book has aged especially badly with his dismissal of Darrow as "old fashioned as William Jennings Bryan," and his blithe assumption that religious fundamentalism was essentially a spent force in American life before the Scopes Trial). A notable exception to this trend, Geffery Cowan's The People v. Clarence Darrow: The Bribery Trial of America's Greatest Lawyer (993) is not a comprehensive story of Darrow's life, but focuses on his defense of the McNamara brothers for the Los Angeles Times bombing and his subsequent trial for jury tampering. The book is superb, although Farrell has uncovered further and better particulars to flesh out the story.

Farrell, like Cowan and Tierney before him, inclines toward a belief in Darrow's guilt; Stone and Arthur and Lila Weinberg take the contrary view.

But that's not the point pf this post. Rather, I want to share a paragraph from Farrell's book, because it is all too depressingly true. After telling the story of how Darrow's advocacy saved Leopold and Loeb from the death penalty (and, of course, how the two wealthy families cheated Darrow out o the great majority of his well-earned fee), Farrell writes that:
Darrow believed that the study of criminal justice was at a turning point, and that he represented a wiser and more compassionate future. And maybe as the Progressive Era drew towards its end, he had reason to believe it. It was nice to think so.

His faith was misplaced. The future had nothing but worse in store--a new world war to eclipse the old one, tactics to torment civilians, crazed theories of racial and religious supremacy, death camps, and atomic fire. Over time, Darrow's America would be ripped by witch hunts, race riots, drug-fueled crime, and reborn enthusiasm for dispatching millions of citizens to its broken prisons. Thousands, including innocents and teenagers, would be sent to death rows, to gallows and gas chambers, firing squads and electric chairs and gurneys with poison drips. The future was not Clarence Darrow's. The future was Robert Crowe's [the vindictive prosecutor whose implicit threats repulsed the trial court judge]/
(P. 356).

I'd love to dissent from this eloquent if despairing passage, but I can't. I've worked on two death penalty cases, one when I was a law student assistant to then-Vice Dean Vivian Berger in Saffle v. Parks (1990), and once as a volunteer while in private practice. These cases required me to learn about the habeas revolution in real time, as it played out. The term denotes a series of Supreme Court cases in which ever-increasingly technical grounds were found to dismiss a challenge to the death penalty's application in a case, weakening what was widely known as "the Great Writ" to a technicality-bound "one strike and you're out" game. This extended, despite the Court's having always hedged its earlier opinions, to claims of "actual innocence," which it found precluded by procedural default by the same technical gamesmanship of its earlier cases, leading to a (properly, in my opinion) rebuke by my former professor and mentor Vivian Berger. While, as Vivian has more recently pointed out, there are new hopes for change, the United States was, until 2016, regularly among the nations to use the death penalty the most, and we remain one of the 57 countries to retain it, as opposed to the 141 that have jettisoned it.

Almost a century after Leopold and Loeb were spared, the future, at least here in the United States, is still in the hands of the Crowes of the world--even if their grip is beginning to loosen.

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