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Anti-Capital Puishment

The Star, Volume II, No. 6, June 1929

Edited by Marie Russak Hotchener, Hollywood California



Anti-Capital Punishment
By Clarence Darrow
I AM going to talk about what we call crime and punishment, especially capital punishment. Of course, there is nobody here that knows much about crime because you are none of you criminals. Criminals are different from other people. The individual is always good, and the criminal is the other fellow who doesn't do just what we do or think just what we do.
There are various degrees of guilt, of course. I presume, if the question were put to the people of the United States tonight, there would be some people for capital punishment, for taking a drink.
In Michigan it is life imprisonment, not for one drink, but for four!
Some think that robbery should be more seriously punished than anything else; other people think adultery should be a capital offense--for other people. There are people who think stealing should be a capital offense--unless you steal a great deal, and then you should be crowned as one of the great financiers of the greatest nation on the face of the earth!
Nobody seems to know what is the right punishment for anything. The person being punished, and the person giving it, would always disagree, and people generally would always disagree. The law confesses that it doesn't know. I have lived all my life in courts, and I know nothing whatever about justice! I haven't the slightest idea what the word means--neither has anybody else.
If you steal, does it matter the amount of money that you take? Clearly not. People earn punishment no matter what the limit of "taking," and what is a great deal of money to some people is a very small amount to someone else. Does it make any difference from whom you steal? For instance: would it be any worse to take the last penny from somebody who needed it to keep himself alive? Would it be any worse to take ten dollars which would be all that stood between him and absolute poverty, or to take the same amount from Mr. Rockefeller or Mr. Morgan? Does anybody know which would be the worst? I never found it out.
Does anybody know how to compare the guilt of cheating somebody by a lying advertisement, and picking his pockets in an open, decent way? I know which is the safest, but I don't know which is the worst! Does anybody know the comparative degree of guilt between robbery and forestalling the market, so that you can take all that a man has? The law doesn't know it, nobody knows anything about it! Does anybody know the comparative iniquity between bigamy and breach of promise--marrying too many wives or too few? I don't even know which is the more uncomfortable! Does anybody know the difference between killing a man who has fifty years of usual life before him, or killing somebody who is going to die the next day? It isn't based on the fact that killing is killing, because if it were the whole population of the State of New York would be murderers, for everybody is engaged in that business, if it is based upon the simple fact of killing. Is there anybody that knows how to proportion guilt to each man's responsibility? Of course, I make a clean sweep of the question by saying that no one is responsible; that everybody is played upon by all the forces of nature as they attune themselves to their own physical being and act in accordance with the strictest motives; that life is life, and they can't act in any other way.
Can anybody show that a human being acts from any different motive than any other animal? They may, by being frightened, have more power. Is there anyone who can tell anything about justice? Is a man who is very intelligent any more guilty or less guilty than a person who is weak and poor and a moron? Is there any way of knowing? Should culpability be greater in the fat man or the lean man? You might just as well ask, should it be greater against the tall man, the old man, or the young man. If a man is going to die anyhow in a week, is it a lesser crime for the state to hang him than it would a young man who had a whole life before him? People may know something about some things, but as for justice--we don't even know what the word means.
Is a boy who never had an education, who never had a chance, who was brought up in the street, who was taught to be a thief as we call it, just as guilty as some other boy who went to school? Is it just to hold him to the same degree of responsibility as that of the person who has had every opportunity in the world? Nobody can begin to conceive what it means. How much does it include? Does it include your own life with what you have made of yourself by the chances you had, or should it not include the father and the mother responsible for your health, and all or any number of your forebears back to Adam or in that vicinity?
Is it any credit to a man who has plenty of money not to steal? Does he know anything about what he would do if he couldn't get a living any other way?
Is it well for me, a lawyer who would not be satisfied with wages, to condemn somebody who can't practice law, and had no other trade but burglary? Can a dwarf be held to the same degree of responsibility as to his strength that you would place in a giant; and can the dwarf intellectually be held to the same degree of responsibility as a giant intellectually; and can the man who in a certain sense can go as he pleases (which simply means he can go as he wants to go and every road good), can he be held in such responsibility as the person who in every way he takes, he loses? These are the criminals.
I have lived in courts a long time. I have known all kinds of men. I could not define the word "criminal," except as some man who gets caught and convicted--then I know, only because the law defines it. I can't say a criminal is better or worse. Many times many of them perform acts of the highest courage, of the truest loyalty, of the greatest self-effacement, which some good people are incapable of. For instance:
Not long ago there was a man named O'Connor in Chicago. He had been in the penitentiary for burglary and was arrested on the streets, and there are better places to arrest people than the streets--especially Chicago streets. He was tried for murder and acquitted. He was finally tried and convicted--sentenced to death. (I don't want anyone to think I defended him that last time.) He was to be hanged on Friday, which is an unlucky day to the fellow who is going to be hanged. On Wednesday before the hanging he made some arrangements with some guards, honest men in charge of the jail. (All the fellows who send people to jail are honest, all the fellows who get in are crooks. That is the only way we have of knowing.) Well, this man made secret connections with the outside world and had an automobile at the foot of the stairway, or at the street, at 12 o'clock. The guards were honest, they took their wage money and kept their word. That is at least as good a definition of honesty as I know anything about. Several other prisoners were escaping at the same time. O'Connor led them down the stairs, down to the street; the automobile was there--he could be saved. The guards who wanted to hang the fellow were right behind him, trying to stop his escape. The man next to O'Connor, who was escaping with him, slipped on the sidewalk, fell, and broke his leg. O'Connor had already reached the automobile, but turned back in the face of the pursuers, grabbed this fallen man, took him in his arms to take him along. But the crook who was hurt said: "You go ahead, leave me alone--I have got to hang--leave me alone and get away!"--which he finally had to do. What a kind fellow O'Connor was, anyway! Many people in this audience would have wanted him caught and hanged. I don't know anybody in Chicago who did, and I am glad he hasn't been.
There is not any emotion in a man we call a criminal that is not in all of us. Sometimes certain emotions are stronger and others are weaker, and the balance is not the same. What is more important than all the rest is that the network of circumstances that surround a life is never the same. It not only takes an inclination but an inducing cause to commit any crime, but there is not anything in any of us that is not in some degree in all of us.
Probably a good many of you people have never killed anybody, but how many of you have not been secretly hoping to read the obituary notices of someone you wished dead? I have. Everybody is filled with various emotions. The balance and the counterbalance wavers. We are played on by all the outside circumstances in life. What happens to me depends upon these forces that play on me--the conflicting emotions of life. They happen to me inevitably.
The cruelest doctrine we have was invented by religious men and misfits in general. The cruelest doctrine is free-will; for no man can do as he pleases, can control his life, which really means controlling the universe. Is a man stronger than the universe? How many people glow at the news item that some person is to be executed tomorrow! Yet how many have the slightest capacity or inclination to put themselves in the condemned person's place? And unless you can do that, you can't tell anything about it. If you can do it, there is no danger of your judging them. But understanding means that you cannot judge; it just means you understand, that is all.
So when these judges (who get their political function through the appointments of governors), talk about justice, they are talking about something that no human being knows anything whatever about. There are some things we do know about: we know about the emotion of kindliness, we know about sympathy, we know about charity, we know about human understanding--but what do you suppose I know about judging any one of you? I would have to put myself inside of you, to be you. We never knew anybody to do anything that he could not give a reason for. Sometimes they might not be satisfactory reasons to me, but they were all satisfactory to him; therefore, I object to this whole question of capital punishment.
There are men who know something about the criminal forces that move human life, and try to bring the right influences to play on a child, even beginning at two years old and continuing until he grows up, and try to see that the right opportunities of life come to him; but the average person never thinks of the criminal, until they want to kill him or send him to prison for some overt act. Many of them the State, in its organized capacity, never even hears of until it puts them to death. That is all that it has ever done for them in any way. It is generally, almost always, the strongest, most powerful, wealthiest, and most respectable who are the first to judge them.
Now, we will talk first for a few moments about crime in general. What do we know about it? What is it, anyhow? Probably there have been more people put to death for witchcraft and heresy than for all other crimes put together. Judges administer the most serious punishments for the things that they themselves hate the most. Such judgment hasn't anything to do with any other kind of responsibility, but just the things that they hate the most. All through the world people have hated the man who doesn't believe in the same religion that they do. In the past they put them to death in the most horrible way. No punishment was hard enough. They didn't hang them in a clean, painless way, but boiled them in oil, quartered them, cut them to pieces, or threw them to wild beasts. Witchcraft, of course, has claimed not its hundreds but its thousands, down even to the other day in Pennsylvania. The only trouble about that recent extreme sentence was that it should have gone to the judge. Sending a fourteen-year-old boy to the penitentiary because he believed in witchcraft, when everybody else believes in it! There are many kinds that I know of, and people believe in some kind or other.
The greatest witchcraft of all is the common idea that society is preserved by punishing people -- jails, penitentiaries, gallows, guarding forces, and that sort of thing. Even some of the good people in this world would, I think, if the vote were given them, sooner vote to abolish the churches than abolish the jails. They would rather depend on the jails than the churches. Of course they are strong for the jails--for other people--all of them.
It is only recently that anybody has tried to find out the causes of anything. Of course you know the sun used to go around the earth; it doesn't do it any more! And if a good prophet wanted to lengthen the days so he could kill more people, he just stopped the sun! We know now he couldn't do it that way.
It was naturally the same thing about disease; people were sent to jail for it. Of course they didn't know anything about germs, but they knew about sin. People have always known about sin. If they would stop talking about sin and talk about science, germs, eugenics, or something that really does affect people, they would get somewhere. Formerly people didn't know what a microbe was. I do. I have seen lots of them. Crazy people used to be sent to jail just for being crazy. We don't do that any more. We put them in a hospital and try to cure them. A crazy person should be sent to the hospital for ten years. If he gets well the next day, he should be let out. If he doesn't, he should be kept there until he does get well.
If you get a disease you are not to blame for it any more, unless you get it by overdrinking; but if you get it by overeating it is all right. A good share of the inhabitants do become diseased that way, for that is the only thing they can indulge in, and no longer think it is a sin to get a disease from overindulgence; but they still think it is a mortal sin to do some of the things that are forbidden by law. How do they find out what is forbidden by law? Who tells us what is right and wrong? I have had so many people tell me, and tell me so many different and contradictory things, that I got dizzy from it.
At one time witchcraft was the most terrible crime we could commit. I suppose today that not to be "one hundred per cent American" is the most terrible crime. First and last, though, the crime that is punished the most in the world is poverty. It always has been punished the most. Now, fortunately, while some people have been punished, there have been other people studying the cause of crime and wanting to know something about its mechanisms. This question, to me, is even bigger than capital punishment.
In the first place, we know that nine out of every ten of the people in jail are poor, and always have been poor. That is the reason why all the good lawyers are corporation lawyers. They want to be where everybody is honest and has the money! You don't often find good lawyers defending criminals to save them. Why not? Good sense ought to tell us there is no connection between poverty and getting into jail, but there is a lot of relation between poverty and getting out of jail.
Nine out of ten criminals never had any education. Either they were not fit for the particular education we give in schools, which means studying books which nobody cares anything about, or else they never had any chance to go to school, one or the other. Go through our penitentiaries, and you find it universally true--I don't care where you go. Then half of the criminals are morons; that is, they know less than the average person, naturally. You can imagine how little that is.
And what is still worse, all of them began the course of crime when they were small children. They didn't have anything else to do, anywhere else to go, no training, no occupation, no chance. More than nine out of ten of them may not have committed the specific crime for which they are in prison for but they began as children the career which leads inevitably to the final result. Few of them have any profession. You do not find the man in jail to be the lawyer, the bricklayer, the carpenter, or even the plumber. They wouldn't be visiting unfamiliar houses on dark nights, they would be getting a living without it; and this is the reason--first and last. Give everybody an opportunity in the world, and it is easy enough to purchase all that is necessary to satisfy his needs. Give everybody an opportunity to live comfortably, and the jails would be closed. You can't stop crime in any other way; there is no other way. Educate every person so he can make a living and give him opportunities to make the conditions of life comfortable, then you will get rid of all crime--at least nine-tenths of it. There are some crimes that come from other reasons, but most of them have their roots in poverty, and in the poor man's lack of opportunity. Everybody who has studied the question knows this, and every jail and every penitentiary in the land is proof of it. There are some crimes of passion--husbands kill wives and wives kill husbands. Divorces are expensive, and the majority of people don't believe in them. They get along bearing their own burdens and think everybody else should do the same. We have a considerable number of killings through love--or what takes its place. I don't want to define the word love--I could, but I am not going to.
Probably the largest number of killings, where the emotions have anything to do with it, are between men and women. Very few because people want to get rid of each other, outside of domestic relations. Does capital punishment help any there? Let a woman come after you with a gun once and see; some woman that you married--or haven't married--it doesn't make any difference. The fear of capital punishment doesn't affect her any. Fearing it, or hating it, is the way one feels the morning after--not at the time. After it is all over with, then one may think about it, may have time to think; but before it one has got something of more importance to think about.
In general, there are just two kinds of killers; there are a few more but not worth talking about; one is the passionate kind I spoke of. Capital punishment hasn't done anything more to prevent them than preaching has--and that is very, very little. Intellect doesn't affect them in the least, never did and never can; and when it can, then the human race will die out. For this eternal hope which we all have, and this eternal push for emotional gratification, are born with us and are a part of our human life. The very mineral life and all plant life is nothing but this. We keep the world alive, so we have got to accept the situation and do the best we can with it, and try to remove all the inducing causes that we can possibly remove: that is all we can do. Our efforts are likely to work, can't stop working, by getting criminals to make good, and to love their fellow men, because really they desire to love them. We have hated the criminals, and we have got them into a condition where they hate us because we hate them. You can only cure conditions by removing inducing causes. Unfortunately this is the last thing people in general try to do.
The great mass of killers whom we call murderers do their killing in self-defense, or to prevent arrest in case of robbery and burglary, possibly some other few reasons. The criminal does not intend to kill or want to kill; but, rather than be arrested, he kills for no other purpose than protecting his own liberty. Now let us look at this for a minute. The ideal way to deal with the matter is to get rid of the robbery and burglary by beginning with the child in his innocence, and training him to make it easier for him to live.
There are few grown people in this world with such strength of character that they would be willing to starve before they would steal. The world isn't made up of people who are that silly. Then there are the various kinds of people who might get enough to eat, but can't get a lot of other things that are the habit and the custom of the people today; these lead directly up to crime, one thing after another. People think that more things are necessary to their happiness than ever before, and they are the inducements to crime; but first and last it is the economic condition that brings these criminal things about, and you can prove it a hundred ways.
All these things have been observed by some few who are interested enough to care to know something about crime--which most don't; most people have just one recipe--to punish. To people in general it doesn't make any difference what science, or the criminologist, or the humanitarian thinks--"crucify him."
(Notes of an address made by Mr.
Darrow and reported through the
kindness of Angela F. Southard.
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