Capital punishment: an account of clarrence darrows closing argument.

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            Theory of punishment has been among the most controversial philosophical discourses of all time that has brought forth many explanations on the issue of justification of punishment and its moral application. Penologists, sociologists and philosophers have fundamentally differed on this controversial topic on ways to approach the question. Among the type of punishment that has been subject of argument is capital punishment, some of the philosophical questions in light of this subject are; Is capital punishment morally or ethically justifiable? What justifies taking the life of another as punishment? This topic has brought two main schools of thoughts with theories being either in support or against capital punishment.

            One of the most passionate, emotional appealing and intellectual philosophical arguments was presented by Clarence Darrows in defense for Nathan Leopold and Richard Loeb murder trail in 1924. His closing argument is one of the most eloquent and intellectually sound arguments challenging the justification of capital punishment as recourse for crime (Linder, 1997). This paper is a review of Clarence Darrow’s closing argument in an attempt to discuss the issue of capital punishment; the paper will also highlight Immanuel Kant, John Stuart-Mill and Jeremy Bentham’s philosophy as relates to the closing argument of Clarence Darrow in an attempt to answer the question posed by Darrows is capital punishment a justified penalty for young Loeb and Leopold or other murder victims?

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            Nathan Leopold and Richards case is a good example of a case that lays a platform for the discussion of capital punishment from a critical philosophical approach. According to the facts, both Richard and Nathan were young men with influential backgrounds and what at the time would have been termed as an eloquent upbringing but due to the counterproductive nature of their upbringing turned to criminal minded attitude. For young Nathaniel Nietzsche’s philosophy and doctrine of will to power and ‘overman’ concept [superman] which he observed and practices as a way of life led him to perform this atrocious acts in the pursuit of the Nietzsche’s belief (Linder, 1997).

            According to Nietzsche, religion, good and evil and moral questions are dogmatic beliefs that inhibit man ability to transcend to the truth about life and thus advocated for free human spirits devoid from moral and religious confines. On the other hand Richard Loeb a young rich kid was obsessed with detective stories and thus dreamt of carrying out a perfect crime. Clarence attributes this behavior as a young mans rebellion from the strict and unique upbringing which targeted perfection and was at the time thought to be the best strategy for excellence.  Together, the two young men conspired and murdered a young man in pursuit of their twisted beliefs and faith and were it not for what as termed as an act of providence their crime would have gone unnoticed (Linder, 1997).

            The brilliant approach pursued by Clarence can philosophically be summed up as a question of whether capital punishment is justified or not. Firstly, the choice of doing away with the jury according to Clarence as to get rid of public influence and wanted judgment to be based on critical reflection whether death penalty was justified as he said “where responsibility is divided by twelve, it is easy to say ‘away with him’; but, your honor, if these boys are to hang, you must do it–…it must be by your cool, premeditated act, without a chance to shift responsibility.” In addition, he challenged he based his argument on the fact that both boys had a disturbed childhood that fundamentally contributed to their actions and thus held the opinion that given their upbringing and the misfortune it was their fate which drove them to commit that crime (Linder, 1997).

            Thirdly and more importantly, Clarence argument passionately attacked the death penalty as an atrocious act saying that “it roots back to the beast and the jungle” which had no me in a civilized society, in his plea; he argued that carrying out the capital punishment is an act that reduces the state to the level of the two convicts. He argued that the state should be more humane, kinder and rule against capital punishment and instead proposed that life imprisonment was a severe a punishment for the committed crimes.  He defended life imprisonment as a chance to give the two young men to reflect upon their crime and may be attest and own up to the crime committed (Linder, 1997).

Therefore, Clarence argument mainly revolves around the question whether death penalty is a justifiable recourse that is both legally and morally justifiable and in attempts to answer this argument it is important and vital to look at the purpose of punishment. Nathan and Richard ha planned and conspired to commit the most severe of all crimes known to humanity and they showed no remorse for it. Given that they are of sane mind, the issue of age in my opinion is of no consequence given that they knew the repercussions and intensity of their actions. However, the main quest the main question is what would be a justifiable mode of punishment. To answer this question it is important to look at purposes of punishment as given by other philosophers

In response to Clarence Darrow’s view, John Stuart Mill a who believed punishment is meant to prevent future crime would have differed since he advocated for the death penalty, in his speech “in favor of capital punishment” he stipulated that in a case where a culprit has committed a crime with no remorse and the justice system has shown without a shadow of doubt that the act was committed by the culprit then capital punishment is the most appropriate measure as it sets precedence and deters others who might have the same notion (John Stuart-Mill speech, 1868).

Therefore, given the atrocious premeditated act done by Leopold and Loeb with the intention to commit a perfect crime he stipulated that the effectiveness of a punitive measure relies on its ability to intimidate and hence preventing future atrocities and crimes and deterring evil doers from performing criminal acts. For instance, his reaction to the argument that death penalty increases human suffering, he recounts that “And we may imagine somebody asking how we can teach people not to inflict suffering by ourselves inflicting it? But to this I should answer–all of us would answer–that to deter by suffering from inflicting suffering is not only possible, but the very purpose of penal justice.” (John Stuart-Mill speech, 1868).

Immanuel Kant who advocated for retributive approach postulated that punishment must be a response to guilt, he goes further to point out that the amount or measure of punishment should be based on the severity of crime committed he pointed out that punishment is justifiable if it is a response to guilt and “The evil that a wrongdoer inflicts is the measure of how severely s/he should be punished.” The Kantian approach thus argues for capital punishment for culprits who committed murder since it advocates for the draconian principle ‘an eye for an eye.’ (Stairs, n.d.). Therefore, the response from Kant to Clarence argument against capital punishment would also be negative given his retributive approach and support for the draconian ‘eye for an eye’ mode of punishment that Clarence viewed as outdated and beastly.

However, Bentham who is regarded as further of the utilitarian principles would have supported Clarence’s view of life imprisonment as severe and justifiable punishment for the crimes mentioned. He held that capital punishment is inefficient in the deterrence purpose to the extent that it possesses harmful qualities in that it leads to furtherance of crime. Institutional punishment should ultimately lead to future pleasures by deterring crime through exertion of legal pain; in contrast, capital punishment practice by justice department leads to furtherance of pain since its application is perceived as excessive hence causes more pain than pleasure for the greatest number (Draper, 2002). This is in line with the ruling of the case as the judge in his statement held that “possible benefits to criminology that might come from future study of them persuaded him that life in prison, not death, was the better punishment.” (Linder, 1997).

Looking at the different views of the philosophers it is my opinion that death is not justifiable in light of the mentioned purposes of punishment. Firstly, from the utilitarian approach adopted by Stuart-Mill and Bentham- the principle holds that an action punishment can be justified if the harm it prevents is greater than the pain imposed on the evil doer through punishing him/her. Looking at the death sentence, one of the fundamental flaws of is that if undertaken mistakenly, it cannot be reversed, corrected or compensated satisfactorily. In addition one of the purposes of punishment is rehabilitation, i.e. one of the purposes of law is to rehabilitate criminal and make them better person who can harmoniously live among other people in the society. Death penalty fails miserable since it does not give the culprits second chances. A good example is that in the same case Leopold’s life in jail and outside was a constructive one and contributed positively in society for the remaining of his life.

And to answer Kantian’s retributive approach we must ask ourselves if legal punishment can practically be retributive, for instance if a murder tortured his/her victims before murdering them should the same be done to him/her? The infliction of legal pain should be an act of punishment and not of revenge a perception that can be drawn from Kantian approach to punishment. Retribution fails in that not all penalties can be reciprocated for example rape, torture etc and in addition not all forms of punishment can commensurate the crime committed. Therefore from this argument we can conclude that repaying murder by murder is also not justifiable as this would reduce punitive measures to revengeful acts.

Capital punishment is thus not a morally and legally justifiable mode of punishment and thus in my view Clarence passionate appeal that drew tears even to the Judge indeed served the purpose for Nathan and Richard and for the world’s justice systems.


Draper, Tony. An introduction to Jeremy Bentham theory of punishment. (2002) Accessed 16th April 2008 from University college London

Linder, Douglas. The Leopold and Loeb trial: a brief account. (1997). Accessed 7th May 2008 from

Mill, Stuart, John. Speech In Favor of Capital Punishment. ( Speech presented April 21st 1868 in parliament) Accessed 16th April 2008 from

Stairs, Allen. Kant on capital Punishment. (n.d.) Accessed 16th April 2008 from


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