Excerpt: Majority Opinion, Epperson v Arkansas, 1968:
Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of noreligion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.
Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. Our courts, however, have not failed to apply the First Amendment’s mandate in our educational system where essential to safeguard the fundamental values of freedom of speech and inquiry and of belief. By and large, public education in our Nation is committed to the control of state and local authorities. Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values. On the other hand, ‘(t)he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools,’ … the First Amendment ‘does not tolerate laws that cast a pall of orthodoxy over the classroom.’
[A]s early as 1923, the Court did not hesitate to condemn under the Due Process Clause ‘arbitrary’ restrictions upon the freedom of teachers to teach and of students to learn. In that year, the Court, in an opinion by Justice McReynolds, held unconstitutional an Act of the State of Nebraska making it a crime to teach any subject in any language other than English to pupils who had not passed the eighth grade. The State’s purpose in enacting the law was to promote civic cohesiveness by encouraging the learning of English and to combat the ‘baneful effect’ of permitting foreigners to near and educate their children in the language of the parents’ native land. The Court recognized these purposes, and it acknowledged the State’s power to prescribe the school curriculum, but it held that these were not adequate to support the restriction upon the liberty of teacher and pupil. The challenged statute it held, unconstitutionally interfered with the right of the individual, guaranteed by the Due Process Clause, to engage in any of the common occupations of life and to acquire useful knowledge.
Today’s problem is capable of resolution in the narrower terms of the First Amendment’s prohibition of laws respecting an establishment of religion or prohibiting the free exercise thereof. There is and can be no doubt that the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma. The State’s undoubted right to prescribe the curriculum for its public schools does not carry with it the right to prohibit, on pain of criminal penalty, the teaching of a scientific theory or doctrine where that prohibition is based upon reasons that violate the First Amendment. In the present case, there can be no doubt that Arkansas has sought to prevent its teachers from discussing the theory of evolution because it is contrary to the belief of some that the Book of Genesis must be the exclusive source of doctrine as to the origin of man. No suggestion has been made that Arkansas’ law may be justified by considerations of state policy other than the religious views of some of its citizens.Its antecedent, Tennessee’s ‘monkey law,’ candidly stated its purpose: to make it unlawful ‘to teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals.’ Perhaps the sensational publicity attendant upon the Scopes trial induced Arkansas to adopt less explicit language. It eliminated Tennessee’s reference to ‘the story of the Divine Creation of man’ as taught in the Bible, but there is no doubt that the motivation for the law was the same: to suppress the teaching of a theory which, it was thought, ‘denied’ the divine creation of man.
Arkansas’ law cannot be defended as an act of religious neutrality. Arkansas did not seek to excise from the curricula of its schools and universities all discussion of the origin of man. The law’s effort was confined to an attempt to blot out a particular theory because of its supposed conflict with the Biblical account, literally read. Plainly, the law is contrary to the mandate of the First, and in violation of the Fourteenth, Amendment to the Constitution.
In defense of murderers Leopold and Loeb, attorney Clarence Darrow thwarted a nation’s call for vengeance
By Simon Baatz (and adapted/edited here by RAL)
SMITHSONIAN MAGAZINE |
The Defendants Nathan Leopold (left) and his lover Richard Loeb confessed that they had kidnapped and murdered Bobby Franks solely for the thrill of the experience. (Underwood & Underwood/ Corbis)
Nathan Leopold was in a bad mood. That evening, on November 10, 1923, he had agreed to drive with his friend and lover, Richard Loeb, from Chicago to the University of Michigan—a journey of six hours—to burglarize Loeb’s former fraternity, Zeta Beta Tau. But they had managed to steal only $80 in loose change, a few watches, some penknives and a typewriter. It had been a big effort for very little reward and now, on the journey back to Chicago, Leopold was querulous and argumentative. He complained bitterly that their relationship was too one-sided: he always joined Loeb in his escapades, yet Loeb held him at arm’s length.
Eventually Loeb managed to quiet Leopold’s complaints with reassurances of his affection and loyalty. And as they continued to drive along the country roads in the direction of Chicago, Loeb started to talk about his idea to carry out the perfect crime. They had committed several burglaries together, and they had set fires on a couple of occasions, but none of their misdeeds had been reported in the newspapers. Loeb wanted to commit a crime that would set all of Chicago talking. What could be more sensational than the kidnapping and murder of a child? If they demanded a ransom from the parents, so much the better. It would be a difficult and complex task to obtain the ransom without being caught. To kidnap a child would be an act of daring—and no one, Loeb proclaimed, would ever know who had accomplished it.
Leopold and Loeb had met in the summer of 1920. Leopold was a brilliant student who matriculated at the University of Chicago at the age of 15. He also earned distinction as an amateur ornithologist, publishing two papers in The Auk, the leading ornithological journal in the United States. His family was wealthy and well connected. His father was an astute businessman who had inherited a shipping company and had made a second fortune in aluminum can and paper box manufacturing. In 1924, Leopold, 19, was studying law at the University of Chicago; everyone expected that his career would be one of distinction and honor.
Richard Loeb, 18, also came from a wealthy family. His father, the vice president of Sears, Roebuck & Company, possessed an estimated fortune of $10 million. The third son in a family of four boys, Loeb had distinguished himself early, graduating from University High School at the age of 14 and matriculating later the same year at the University of Chicago. His experience as a student at the university, however, was not a happy one. Loeb’s classmates were several years older and he earned only mediocre grades. At the end of his sophomore year, he transferred to the University of Michigan, where he remained a lackluster student who spent more time playing cards and reading dime novels than sitting in the classroom. And he became an alcoholic during his years at Ann Arbor. Nevertheless he managed to graduate from Michigan, and in 1924 he was back in Chicago, taking graduate courses in history at the university.
Leopold had no objection to Loeb’s plan to kidnap a child. They spent long hours together that winter, discussing the crime and planning its details. They decided upon a $10,000 ransom, but how would they obtain it? After much debate they came up with a plan they thought foolproof: they would direct the victim’s father to throw a packet containing the money from the train that traveled south of Chicago along the elevated tracks west of Lake Michigan. They would be waiting below in a car; as soon as the ransom hit the ground, they would scoop it up and make good their escape.
On the afternoon of May 21, 1924, Leopold and Loeb drove their rental car slowly around the streets of the South Side of Chicago, looking for a possible victim. At 5 o’clock, after driving around Kenwood for two hours, they were ready to abandon the kidnapping for another day. But as Leopold drove north along Ellis Avenue, Loeb, sitting in the rear passenger seat, suddenly saw his cousin, Bobby Franks, walking south on the opposite side of the road. Bobby’s father, Loeb knew, was a wealthy businessman who would be able to pay the ransom. He tapped Leopold on the shoulder to indicate they had found their victim.
Leopold turned the car in a circle, driving slowly down Ellis Avenue, gradually pulling alongside Bobby.
“Hey, Bob,” Loeb shouted from the rear window. The boy turned slightly to see the Willys-Knight stop by the curb. Loeb leaned forward, into the front passenger seat, to open the front door.
“Hello, Bob. I’ll give you a ride.”
The boy shook his head—he was almost home.
“No, I can walk.”
“Come on in the car; I want to talk to you about the tennis racket you had yesterday. I want to get one for my brother.”
Bobby had moved closer now. He was standing by the side of the car. Loeb looked at him through the open window. Bobby was so close….Loeb could have grabbed him and pulled him inside, but he continued talking, hoping to persuade the boy to climb into the front seat.
Bobby stepped onto the running board. The front passenger door was open, inviting the boy inside…and then suddenly Bobby slid himself into the front seat, next to Leopold.
Loeb gestured toward his companion, “You know Leopold, don’t you?”
Bobby glanced sideways and shook his head—he did not recognize him.
“No.”
“You don’t mind [us] taking you around the block?”
“Certainly not.” Bobby turned around in the seat to face Loeb; he smiled at his cousin with an open, innocent grin, ready to banter about his success in yesterday’s tennis game.
The car slowly accelerated down Ellis Avenue. As it passed 49th Street, Loeb felt on the car seat beside him for the chisel. Where had it gone? There it was! They had taped up the blade so that the blunt end—the handle—could be used as a club. Loeb felt it in his hand. He grasped it more firmly.
At 50th Street, Leopold turned the car left. As it made the turn, Bobby looked away from Loeb and glanced toward the front of the car.
Loeb reached over the seat. He grabbed the boy from behind with his left hand, covering Bobby’s mouth to stop him from crying out. He brought the chisel down hard—it smashed into the back of the boy’s skull. Once again he pounded the chisel into the skull with as much force as possible—but the boy was still conscious. Bobby had now twisted halfway around in the seat, facing back to Loeb, desperately raising his arms as though to protect himself from the blows. Loeb smashed the chisel down two more times into Bobby’s forehead, but still he struggled for his life.
The fourth blow had gashed a large hole in the boy’s forehead. Blood from the wound was everywhere, spreading across the seat, splashed onto Leopold’s trousers, spilling onto the floor.
It was inexplicable, Loeb thought, that Bobby was still conscious. Surely those four blows would have knocked him out?
Loeb reached down and pulled Bobby suddenly upwards, over the front seat into the back of the car. He jammed a rag down the boy’s throat, stuffing it down as hard as possible. He tore off a large strip of adhesive tape and taped the mouth shut. Finally! The boy’s moaning and crying had stopped. Loeb relaxed his grip. Bobby slid off his lap and lay crumpled at his feet.
Leopold and Loeb had expected to carry out the perfect crime. But as they disposed of the body—in a culvert at a remote spot several miles south of Chicago—a pair of eyeglasses fell from Leopold’s jacket onto the muddy ground. Upon returning to the city, Leopold dropped the ransom letter into a post box; it would arrive at the Franks house at 8 o’clock the next morning. The following day, a passerby spotted the body and notified the police. The Franks family confirmed the identity of the victim as that of 14-year-old Bobby. The perfect crime had unraveled and now there was no longer any thought, on the part of Leopold and Loeb, of attempting to collect the ransom.
By tracing Leopold’s ownership of the eyeglasses, the state’s attorney, Robert Crowe, was able to determine that Leopold and Loeb were the leading suspects.
Ten days after the murder, on May 31, both boys confessed and demonstrated to the state’s attorney how they had killed Bobby Franks.
Crowe boasted to the press that it would be “the most complete case ever presented to a grand or petit jury” and that the defendants would certainly hang. Leopold and Loeb had confessed and shown the police crucial evidence—the typewriter used for the ransom letter—that linked them to the crime.
The trial, Crowe quickly realized, would be a sensation. Nathan Leopold admitted they had murdered Bobby solely for the thrill of the experience. (“A thirst for knowledge is highly commendable, no matter what extreme pain or injury it may inflict upon others,” Leopold had told a newspaper reporter. “A 6-year-old-boy is justified in pulling the wings from a fly, if by so doing he learns that without wings the fly is helpless.”) The defendants’ wealth, their intellectual ability, the high regard within Chicago for their families and the capricious nature of the homicide—everything combined to make the crime one of the most intriguing murders in the history of Cook County.
But while Crowe could count on the support of an outraged public, he faced a daunting adversary in the courtroom. The families of the confessed murderers had hired Clarence Darrow as defense attorney. By 1894, Darrow had achieved notoriety within Cook County as a clever speaker, an astute lawyer and a champion of the weak and defenseless. One year later, he would become the most famous lawyer in the country, when he successfully defended Socialist labor leader Eugene Debs against conspiracy charges that grew out of a strike against the Pullman Palace Car Company. Crowe could attest firsthand to Darrow’s skills. In 1923, Darrow had humiliated him in the corruption trial of Fred Lundin, a prominent Republican politician.
Darrow’s opposition to capital punishment found its greatest source of inspiration in the new scientific disciplines of the early 20th century. “Science and evolution teach us that man is an animal, a little higher than the other orders of animals; that he is governed by the same natural laws that govern the rest of the universe,” he wrote in the magazine Everyman in 1915.
Endocrinology—the study of the glandular system—was another emerging science that seemed to deny the existence of individual responsibility. Several recent scientific studies had demonstrated that an excess or deficiency of certain hormones produced mental and physical alterations in the afflicted person. Mental illness was closely correlated with physical symptoms that were a consequence of glandular action. Crime, Darrow believed, was a medical problem. The courts, guided by psychiatry, should abandon punishment as futile and in its place should determine the proper course of medical treatment for the prisoner.
Nine years earlier, in an otherwise obscure case, Darrow had pleaded Russell Pethick guilty of the murder of a 27-year-old housewife and her infant son but had asked the court to mitigate the punishment on account of the defendant’s mental illness. Now he would attempt the same strategy in the defense of Nathan Leopold and Richard Loeb. His clients were guilty of murdering Bobby Franks, he told Caverly. Nevertheless he wished the judge to consider three mitigating factors in determining their punishment: their age, their guilty plea and their mental condition.
It was a brilliant maneuver. By pleading them guilty, Darrow avoided a trial by jury. Caverly would now preside over a hearing to determine punishment—a punishment that might range from the death penalty to a minimum of 14 years in prison. Clearly it was preferable for Darrow to argue his case before a single judge than before 12 jurors susceptible to public opinion and Crowe’s inflammatory rhetoric.
Darrow had turned the case on its head. He no longer needed to argue insanity in order to save Leopold and Loeb from the gallows. He now needed only to persuade the judge that they were mentally ill—a medical condition, not at all equivalent or comparable to insanity—to obtain a reduction in their sentence. And Darrow needed only a reduction from death by hanging to life in prison to win his case.
And so, during July and August 1924, the psychiatrists presented their evidence. William Alanson White, the president of the American Psychiatric Association, told the court that both Leopold and Loeb had experienced trauma at an early age at the hands of their governesses. Loeb had grown up under a disciplinary regimen so exacting that, in order to escape punishment, he had had no other recourse but to lie to his governess, and so, in White’s account at least, he had been set on a path of criminality. “He considered himself the master criminal mind of the century,” White testified, “controlling a large band of criminals, whom he directed; even at times he thought of himself as being so sick as to be confined to bed, but so brilliant and capable of mind…[that] the underworld came to him and sought his advice and asked for his direction.” Leopold also had been traumatized, having been sexually intimate with his governess at an early age.
Crowe had also recruited prominent psychiatrists for the prosecution. They included Hugh Patrick, president of the American Neurological Association; William Krohn and Harold Singer, authors of Insanity and the Law: A Treatise on Forensic Psychiatry; and Archibald Church, professor of mental diseases and medical jurisprudence at Northwestern University. All four testified that neither Leopold nor Loeb displayed any sign of mental derangement. They had examined both prisoners in the office of the state’s attorney shortly after their arrest. “There was no defect of vision,” Krohn testified, “no defect of hearing, no evidence of any defect of any of the sense paths or sense activities. There was no defect of the nerves leading from the brain as evidenced by gait or station or tremors.”
Each set of psychiatrists—one for the state, the other for the defense—contradicted the other. Few observers noticed that each side spoke for a different branch of psychiatry and was, therefore, separately justified in reaching its verdict.
At 9:30 on the morning of September 10, 1924, Caverly prepared to sentence the prisoners. The final day of the hearing was to be broadcast live over station WGN, and throughout the city, groups of Chicagoans clustered around radio sets to listen. The metropolis had paused in its morning bustle to hear the verdict.
Caverly’s statement was brief. In determining punishment, he gave no weight to the guilty plea. The psychiatric evidence also could not be considered in mitigation. Nathan Leopold and Richard Loeb had been 19 and 18 years old, respectively, at the time of the murder. Did their youth mitigate the punishment? Caverly decided he would hold back from imposing the extreme penalty on account of the age of the defendants. He sentenced each defendant to 99 years for the kidnapping and life in prison for the murder. “The court believes,” Caverly stated, “that it is within his province to decline to impose the sentence of death on persons who are not of full age. This determination appears to be in accordance with the progress of criminal law all over the world and with the dictates of enlightened humanity.”
The verdict was a victory for the defense, a defeat for the state. The guards allowed Leopold and Loeb to shake Darrow’s hand before escorting the prisoners back to their cells. Two dozen reporters crowded around the defense table to hear Darrow’s response to the verdict and, even in his moment of victory, Darrow was careful not to seem too triumphal: “Well, it’s just what we asked for but…it’s pretty tough.” He pushed back a lock of hair that had fallen over his forehead, “It was more of a punishment than death would have been.”
As for Nathan Leopold and Richard Loeb, their fates would take divergent paths. In 1936, inside Stateville Prison, James Day, a prisoner serving a sentence for grand larceny, stabbed Loeb in the shower room and despite the best efforts of the prison doctors, Loeb, then 30 years old, died of his wounds shortly afterward.
Leopold served 33 years in prison until he won parole in 1958. At the parole hearing, he was asked whether he realized that every media outlet in the country would want an interview with him. Already there was a rumor that Ed Murrow, the CBS correspondent, wanted him to appear on his television show “See It Now.” “I don’t want any part of lecturing, television or radio, or trading on the notoriety,” Leopold replied. The confessed murderer who had once deemed himself a superman stated, “All I want, if I am so lucky as to ever see freedom again, is to try to become a humble little person.”
Upon his release, Leopold moved to Puerto Rico, where he lived in relative obscurity, studying for a degree in social work at the University of Puerto Rico, writing a monograph on the birds of the island, and, in 1961, marrying Trudi Garcia de Quevedo, the expatriate widow of a Baltimore physician. During the 1960s, Leopold was finally able to travel to Chicago. He returned to the city often, to see old friends, to tour the South Side neighborhood near the university and to place flowers on the graves of his mother and father and two brothers.
