What’s Up with Clarence Darrow?


Most of us don’t know much about the revered attorney Clarence Darrow, and this treatise on crime and punishment will remedy the lack. The first thing that strikes the reader is the great man’s unworldliness. He seems less in touch with human nature than a cloistered nun. He asserts, for example, that “No parent ever teaches his child any other philosophy than that of love.”  He believes that schoolboys don’t pick on weaker boys. “The old, the young, the feeble, children and women, are especially exempt from violent deeds.” He feels that most unlawful deeds are committed “hastily in the heat of passion or upon what seems adequate provocation, or through sore need.” This belief must have been severely tested when he defended Leopold and Loeb, the notorious young men who killed a boy just to see if they could meet the intellectual challenge of committing the perfect crime.

Darrow appears to have been dazzlingly naive. He thought that penitentiaries are full of men who stole to feed their kids. Maybe it used to be so, but what would he say about the recent trial of the “party planner” for a large corporation who embezzled $1 million and spent it on jewelry and designer clothes? Could he convince a jury that her case was one of sore need?

He complains that prison breaks up families – “A wife and helpless babes may be left in want when the state lays its hand in wrath upon the man.” Maybe things were different back then, but these days it’s much more likely that the man has already split, and abandoned that woman and those little tykes, long before the law grabs him.

“Men would not explore their neighbors’ houses at dead of night, if their own were filled,” is Darrow’s claim. What planet was he from? On earth, the sense of entitlement experienced by some members of society is so acute that they never feel they have enough. When the house fills up with goodies, they get another house and fill up that one too.

“Give them a chance to live and prosper, and violent acts will be unknown.” Sorry, Clarence. Not when they’re making up their own definitions of prosperity. We got folks who aren’t content with receiving welfare, but sign up under fifty fraudulent names to scam the system. We got folks who already have eight or eighty million dollars and think they need additional millions. Only a very small percentage of people have some decent concept of what is enough. Most people want more than they can use, and many enjoy, more than the thing itself, the knowledge that someone else doesn’t have it. And this is not a new kink in the psyche of homo sapiens. Since we hit the ground, a lot of us have lived by the creed More is More. And the easiest way to get more is to take it from others….same as it ever was.

Some of Darrow’s beliefs had already been disproved by history long before this book was written. He voices his doubts about the deterrent effect of the death penalty, and suggests that if we intend for it to be a deterrent at all, then let it be a powerful one: a horrible gruesome death with a maximum-capacity audience. Well, governments used to do exactly that, and discovered that the public became more, not less, violent in the immediate aftermath of such events as a hanging in the town square.

Resist Not Evil abounds with examples of Darrow’s touching, indeed astonishing, faith in people. “Given a child falling into a river, an old person in a burning building, a woman fainting in the street, and a band of convicts would risk their lives to give aid as quickly at least as a band of millionaires.”  Personally, I doubt that either the average convict or the average millionaire would get involved, unless there was something in it for him. A woman fainting in the street would be greatly at risk of rape from either of them.  It’s not that the convicts wouldn’t act as well as the millionaires. We’re coming at it from a different conceptual angle: the millionaires would act as badly as the convicts. After all, that is, in many cases, how they got to be millionaires in the first place. It’s just that they, unlike the convicts, didn’t get caught.


“No honest judgment of the worth of any soul can be measured except with full knowledge of every circumstance that made his life, ” wrote Darrow, laying the groundwork for today’s widespread habit of acquitting just about any accused who can claim some kind of victimhood. (Remember the Jets in West Side Story? “Dear kindly Sergeant Krupke, ya gotta understand, it’s just our bringing-upke, that gets us outta hand.”)

He laments the fate of the stand-up guy, who would rather defy the court than turn stool pigeon. “A judge can see no character or virtue in an accused man, who would rather suffer imprisonment or death than to betray his fellows.” Does Darrow really believe it is noble altruism that prevents crooks from ratting on their associates? Did the more likely explanation never occur to him, that it might simply be stark, craven fear of payback?

Darrow’s insistence on romanticizing criminals and low-lifes would fit right in with the prevailing ethos in urban barrios and ghettos. “Women,” he says, “would not sell their bodies if society left them any other fairly decent and pleasant way to live.” Nonsense. There were alternatives in Darrow’s day, and there are a hundred or a thousand times more alternatives now, at least for women in the developed countries. Yet there is no shortage of hookers anywhere, and for a large percentage, it is their career of choice. Fine, if that’s what they want to do. It’s too bad that our society can’t see the good sense of decriminalizing prostitution. But let’s not get all dewy-eyed about some imaginary lack of other choices.

Just when you’ve got him figured for a bleeding-heart liberal, Darrow comes out with a pure libertarian statement: “Every government on earth is the personification of violence and force….”  He points out, as many libertarians do today, that no matter how much we fancy it up with civilized trimmings and rhetoric, coercion is eternally the bottom line. “The ancient knight who, with battle-ax and coat of mail, enforced his rule upon the weak, was only the forerunner of the tax-gatherer and tax-devourer of today.”

Yes, we have courts and codes and police and lawyers and legislators and all kinds of architectural splendor and ceremonial rituals to emphasize the majesty of the Law, “but back of these, to enforce each decree, is the power of armed men with all the modern implements of death.”  Practically everywhere on the planet and in most times, it seems to have been taken for granted that this was the only possible way to operate. Darrow recognizes that the State does not protect the weak and the meek, but aids the strong in exploiting them. He is fully aware of the true nature of temporal power. The mystery is how he manages to reconcile that knowledge with his optimistic faith in the basic goodness of human nature, since the State is made up of nothing but humans wearing uniforms or suits.

Darrow accuses governments everywhere of fundamental, pervasive and vicious hypocrisy: There is always a pretended concern for the welfare of the people. The government  encourages marriage and reproduction, punishes infanticide and abortion, criminalizes birth control, sanitizes the water supply, and cares for the sick – all with the ostensible purpose of keeping people alive and creating more of them. Yet when the government wishes to wage a war, or after a war has decimated the population, the stunned survivors are told that the loss was for the greater good.

As Darrow puts it,  “To excuse the wholesale butcheries of men by the governing powers, learned apologists have taught that without the havoc and cruel devastation of war the human race would overrun the earth.”  In other words, when they want cannon fodder they use a twisted Malthusian argument. It reminds me of that other favorite cop-out of the warmongers: the marvelous way in which war advances technology. Look how much we learn about skin grafts with a few thousand burned soldiers to practice on!

Even in wartime the primary goal of a government is not to defeat the enemy but to keep its own citizens in line. “In reality the prime reason for all the armies of the world is that soldiers and militia may turn their guns upon their unfortunate countrymen when the owners of the earth shall speak the word.” Orwell expressed the same truth in 1984: if a real enemy doesn’t exist, a government has to create one in order to justify keeping tight control over its people.

Darrow reminds us how rulers used to think that the greatest thing was to own individuals. Over the centuries they learned it is more expedient to own the land instead – “for to own the earth is to fix the terms on which all must live.” Any libertarian will tell you that land ownership is a good thing – but when it gets to where, as in South America, one per cent of the people own ninety percent of the land, the concept of ownership has gotten out of hand.

He spotlights another characteristic shared by the ruling class of every nation: they invariably show up at each others’ funerals. Millions of their own peasants can die unmourned, but the illustrious leaders are on the scene to shed a tear and escort the coffin in honor of one of their brother dictators, presidents, chancellors or kings.


Some of Darrow’s views stretch to anarchy. He has a gut feeling that an accused person stands a better chance of justice from a mob than from a courtroom. In many cases, he was right and would be today. On the other hand, it all depends (and always did). Mobs have, without benefit of jurisprudence, done away with a lot of alleged witches and sex offenders and other unpopular characters. who might very well have been innocent.

He makes a very strong anarchist claim: “The disorganized vicious would be far less powerful than the organized vicious, and would soon disappear.” Many present-day libertarians say the same thing: if the government vanished, people would behave decently. Those of the voluntaryist persuasion are convinced that if only the government will stop taking all their money and stop usurping the human help functions, people will joyously co-operate and take responsibility for one another’s needs.

I surely would like to believe it. But most of the time it simply doesn’t work that way! The first thing the vicious do is organize. One of the freshest examples is what’s happened behind the former Iron Curtain: more mobsters per square mile than Miami. Compared with the new geographic-area-formerly-known-as-the-USSR, old Chicago looks like a Rainbow Gathering

What would Darrow make of a n’er-do-well like Gary Gilmore, who as an ex-convict was given generous help and support by loving relatives, then killed two people in order to get the state to kill him? What would Darrow make of the Menendez brothers, the Bobbitt case, the Waco massacre, Susan Smith, or the O.J. Simpson trial?

He illuminates many of the ways in which we customarily fool ourselves. “The laws and regulations of a democracy tend no more to equality than those of a monarchy.” He notes how a net of laws is in place so securely that nobody can avoid breaking some of them at one time or another. Yet the rich and powerful escape the consequences, while any luckless citizen can easily be ensnared by some ill-wisher who is motivated to do so. Moreover, the rich don’t need to break the law. When they want to do something, they just get their lawyers to figure out another way. “When the law forbids extortion and swindling,” says Darrow,  “it simply forbids certain forms and methods of these acts, and these forms and methods are the ones not practiced by the ruling class.”

He makes a sort of Darwinian argument for Natural Law that could be the basis for extended discussion. He also makes a firm commitment to non-violence, and demonstrates that in his day as now, the one goal the penal system accomplished with spectacular efficiency was the manufacture of criminals. He is very much against fines as punishment: “The taking of money by the state in payment of crime is infinitely more damnable than private theft.” Darrow always stakes out a claim on the moral high ground, far above the tidemarks of contemporary mores. Look at some of the things which are and have been against the law. Most religions have been illegal in various times and places, yet believers risked death to worship as they felt necessary.  Trade unions have been illegal, and their adherents jailed or killed. Every political bias has been proscribed and punishable. “To violate law is often the highest, most sacred duty that can devolve upon the citizen,” he says, and reminds the self-righteous that America was partly founded by criminals transported here from England as punishment.

The more abstractly philosophical the discussion becomes, the more elevated the moral tone. He makes a case that having the hubris to judge a criminal is a worse crime than whatever the criminal did. Is this guy a flaming idealist, or what? Or possibly a bodhisattva who walked unrecognized among us?

Unrealistic as Darrow is, I think it is possible for people to become more like his vision of them. My determination to believe that, in the face of all evidence to the contrary, is one of the factors that cause me to be labeled a “mystical libertarian”. We both think people can improve, but we differ greatly on how it might happen. He thinks he knows, and I think he’s mistaken (as has been shown in the years of increasingly rapacious socialism in America since Darrow wrote.)

For instance, according to this book, “the expenditure of public money to relieve suffering, to furnish remunerative employment, to rationally prevent crime by leaving men with something else to do…” will fix things. Social service agencies have assiduously followed this plan since the Thirties, and with a vengeance since the Sixties, and have obtained worse results each year. Darrow wants to have his cake and eat it too: he wants to use the instrument of socialism to remove dire poverty from the society. At the same time he wants to ignore the fact that the redistribution of wealth is necessarily accomplished through force or threat of force against those from whom the wealth is taken. Was he unaware of the contradiction, or did he think he had somehow reconciled it?

About Pat Hartman

Before publishing the two books "Call Someplace Paradise" and "Ghost Town: A Venice California Life", my main project was "Salon: A Journal of Aesthetics. " I wrote extensively for "Scene," a monthly arts and entertainment magazine with a circulation of 25,000. Also proofread, sold ads, put together the music calendar and, for a couple of years, served as editor. Presided over a couple issues of the local NORML newsletter, as well as being featured speaker at chapter meetings. Wrote a complete screenplay; collaborated on another one; worked on a couple of scripts (additional dialog and general brainstorming) with an indie film producer. Booked the talent for a large music festival. Wrote, designed, illustrated and produced various catalogs and brochures for small businesses. Spoke at a high school as a panelist on Women in the Professions; was a featured speaker at the 1991 Women in Libertarianism Conference; presented public programs on "Success in One Lesson" and "The Bloomsbury Group: What's It To Us?" Created the website VirtualVenice.info and wrote many politically-oriented pieces for Earthblog.net
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One Response to What’s Up with Clarence Darrow?

  1. Pingback: leopold and loeb 2009’s new year | Happy 2009

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