by Simon Baatz
In the excitement attendant on the sentencing, everyone had forgotten about Bernard Grant, the nineteen-year-old convicted of the murder of Ralph Souders, the policeman guarding the A&P store on Morgan Street. But now the newspapers took up Grant's cause. Leopold and Loeb had escaped death, but Grant sat in Cook County jail awaiting his imminent execution. "Bernard Grant, of Chicago, is puzzled," the
Detroit Free Press explained, "and what's bewildering him is this: Bernard is nineteen years old, just the age of Nathan Leopold. But while Leopold escaped the gallows on account of his 'youth,' Bernard is to be hanged by the neck until he is dead. . . . Bernard thinks this isn't fair. Yet it is all plain enough if only you get the right angle. Bernard Grant is a poor boy. He was obliged to quit school at fourteen in order to help support his family. Consequently, he never was able to save enough money to hire a high-priced, emotional lawyer who makes a specialty of cheating the gallows. When he got into trouble, he had to take what counsel he could get. . . . The very fact that Grant thinks an injustice is being done to him shows how inexperienced and unsophisticated he is. Without money, without inf luence, without ability to entertain the crowd, without opportunity to get the alienists to talking, and writing yards and yards of deduction largely buncombe, it was silly of him to think he ever had a chance." According to the Cleveland Plain Dealer, a movement was afoot in Chicago to petition the governor of Illinois to commute Grant's death sentence to life in prison. "There are murmurs in Chicago. . . . Grant is without education, son of a day laborer. . . . There is a feeling that the execution of the capital sentence will be a proof of the double standard of law--one law for the poor and another law for the rich."8
Would Clarence Darrow exert himself on behalf of Bernard Grant? Grant was as deserving as Nathan Leopold and Richard Loeb--perhaps more so. Mary Grant, his mother, claimed that he had been wrongly identified and bitterly compared his fate with that of Leopold and Loeb: "My boy is innocent. He was home asleep when they say he killed the policeman. . . . They convicted my boy just the same. . . . What can we do? We were not able to hire alienists at $250 a day to say he is insane." Even the
Chicago Daily Tribune, the scourge of the criminal class, now urged clemency for Grant--"if he hangs while Loeb and Leopold live, the inequality of our process of justice will be gross"--while simultaneously admitting that life in prison for the murderer of a policeman would, as a general rule, be a regrettable outcome.9
Grant did eventually win a reprieve--the governor of Illinois, Len Small, postponed the execution until he could decide whether to commute the death sentence. Yet criticism of Caverly continued unabated. The more one examined the judge's rationale, the more illogical it seemed. Caverly had claimed, in his summation, that life in prison for Leopold and Loeb would be more of a punishment than death. That assertion was debatable, to say the least, but more to the point, was it certain that Leopold and Loeb would spend the remainder of their days in the penitentiary, or was it more probable that sooner or later their lawyers would petition the parole board for their release?
10
The general condemnation of Caverly stemmed in great part from a widespread apprehension that somehow, by one means or another, the two killers would obtain an early release. Caverly himself had fueled such speculation by foolishly omitting to say whether the two sentences-- life plus ninety-nine years--should run consecutively or concurrently. According to the Illinois criminal code, when a judge failed to state that two sentences were to be served consecutively, they would run concurrently, with the prisoner serving the longer of the two. "The law holds," declared Hinton Clabaugh, supervisor of pardons and paroles for Illinois, "that in case one sentence is longer than the other the longer one takes precedence. . . . Therefore it must be decided which is longer in the case of Leopold and Loeb--ninety-nine years or life. What can be longer than life?"
But if Nathan and Richard were serving life sentences, then, according to the statutes, they would both be eligible for parole after twenty years. They could, in addition, earn early release, at the discretion of the parole board, for good behavior. Either boy might be released from the penitentiary after just eleven years and three months! "I don't mean to say," Clabaugh concluded hastily, "that Leopold and Loeb will necessarily be out at the end of eleven years. . . . But I do say it is hard to see how their legal privileges can be denied them any more than to other convicts."
11
Eleven years! That would make a mockery of the law! Could they really win their freedom as early as 1935? They would then be just thirty years old; neither would yet have even reached middle age.
Would the parole board, at some point in the future, remit the sentences? No one, in 1924, could predict the decisions of the parole board. But even if the board held firm and resolved that both Leopold and Loeb should remain behind bars, there was always the possibility that executive action by the governor of Illinois might result in their early release. The governor had the power either to grant a pardon or to commute the sentences. In response to inquiries from several journalists, a spokesman for the governor's office stated the constitutional right of the executive to pardon the prisoners--"the governor . . . would be legally permitted to pardon Leopold and Loeb"--but hastened to add that Len Small had no thought of committing political suicide by releasing the two convicts.
12
Despite such reassurances the editorials continued their drumbeat against early release. The example of Harry Thaw was proof that even the most cynical and callous killer could eventually win his freedom. Thaw had spent several years in an asylum after his murder of Stanford White, but through the persistence of his lawyers he had won his release. Might not Leopold and Loeb do the same? The public demanded capital punishment for such crimes, the
St. Louis GlobeDemocrat explained, precisely because a life sentence rarely meant permanent confinement. "There would be much more public satisfaction with the verdict if 'life imprisonment' meant imprisonment for life. . . . But in American practice it is rare that criminals under such a sentence of imprisonment are confined until the grave releases them. . . . We believe it is seldom, indeed, that 'life imprisonment' involves confinement for more than twenty years, and it is highly improbable that these men will be compelled to serve longer than that."13
Nathan Leopold and Richard Loeb would be able to buy favorable treatment in the penitentiary, and their lawyers would doubtless appeal their imprisonment and win their freedom. "In prison," the
Atlanta Journal predicted, "the money behind Loeb and Leopold will lead to special favors for them. They will receive visitors, will publish their distorted views to the world, and will in every way attempt to feed fat the notoriety and public attention they have received these last few months." The judge had recommended life without the possibility of parole for the two defendants, but who could guarantee their perpetual punishment? The public memory of the killing would gradually fade away, and the defense attorneys would work diligently behind the scenes in favor of an early release. "Time alone will fix the merit of the life sentence passed upon Loeb and Leopold," the Memphis Commercial Appeal concluded warily. "If these boys are confined in the penitentiary the rest of their natural lives the ends of justice may be served, but if they are later pardoned those who do it will assault justice and disgrace their office."14
A handful of editorials pointed out that Caverly, by relying on precedent in reaching his decision, had exercised judicial restraint and resisted popular pressure. "A careful reading of the judge's opinion," the
Birmingham Age-Herald said, "shows that he kept entirely within the law of Illinois in his decision." It was an admirable demonstration of judicial fortitude, said the Charleston Gazette: "The verdict is in, and we hope that the recommendations of the man who was called upon to reach a momentous decision will be accepted with equanimity. . . . Justice Caverly acted with an eye to justice to all concerned and . . . his verdict was the result of the evidence submitted to him and the facts as he conceived
them."15
But such opinions, praising Caverly for his independence from public opinion, counted for little when set against the tsunami of criticism that otherwise crashed down on him. The decision had been wrong on many counts, the editorials claimed, and it had been most pernicious in its effect on the public's perception of the legal system.
Caverly's inattention to detail--why had he not ordered the sentences to run consecutively?--had allowed the awful possibility that two notorious murderers might yet walk the streets of Chicago. Such a result would strip the law of its dignity and reveal justice as a pretense. According to the Louisville
Courier-Journal, "The Judge's refusal to subject these two fiends to the just penalty of the law will intensify general contempt for those whose duty it is to enforce the law and whose weakness in refusing to do their duty has done so much to bring the law itself into contempt. As long as our judges and juries as a rule are actuated by such tenderness to murderers as that of Judge Caverly . . . murders will multiply."16
And if the penalty was no more than a few years in the penitentiary, then there would surely no longer be any deterrent to murder. The murder rate in Cook County was already alarmingly high, warned the
Chicago Daily Tribune, and Caverly's decision would accelerate the trend upward. "The Franks case decision already has resulted in the commutation of penalties which, without it, would have been exacted without criticism and which accord fully with the law. . . . Murder has been made a less hazardous crime than ever and it was already one of the least hazardous. . . . The taking of life has become almost a commonplace. This represents a state of morals alarming to any one who considers the elements of civilized society. It is a condition which cannot be ignored safely and most certainly calls for a restoration rather than a further weakening of the safeguards civilization has had to create and maintain for the security of human life."17
Robert Crowe, in his closing speech in court, had cautioned Caverly that any sentence less than hanging would be an inducement to others to imitate Nathan Leopold and Richard Loeb; and already, it seemed, Crowe's prediction had found confirmation in the vicious murder of Bessie Gaensslen, an elderly woman living alone in an apartment on the West Side of Chicago. Anna Valanis, eighteen years old, had confessed to the crime: she, along with three other teenagers, had broken into the woman's apartment looking for money. Bessie Gaennslen had fought back courageously but, predictably, her attackers had overwhelmed her. One of the four had knocked her to the ground; a second had jumped on top of her, holding down her arms to prevent her from struggling. Anna's brother, Anthony, nineteen years old, had strangled the victim with the telephone wire as his confederates looked on.
18
The four teenagers were now in police custody, but they had no fear of the scaffold--they would ask the judge to appoint Clarence Darrow as their attorney; and Darrow would surely save them from execution. "We'll have the court appoint Mr. Darrow to defend us," Anna Valanis confided to the reporters. "We know our stuff; if we cannot hire a lawyer the judge must furnish us one and we want Darrow."
19
Why, indeed, should anyone now fear capital punishment? It remained on the books, of course, but in practice it was ineffectual. The sentencing of Leopold and Loeb had created a precedent that would be impossible to overcome, and no prosecutor could any longer have confidence that he would win the death penalty in Illinois. Caverly's decision had lessened the deterrent to murder.
Yet not everyone was sure that Caverly had been wrong. Lawyers and jurists, reluctant to criticize publicly one of the most prominent judges in Illinois, were more cautious in their opinions. Louis Marshall, a leading member of the Chicago bar and a senior partner in Guggenheimer, Untermyer, & Marshall, believed that Caverly had presided over the courtroom with decorum and had reached a creditable result. "The proceeding adopted by Judge Caverly was proper," Marshall commented to a reporter from the
Boston Daily Globe. "The policy of our laws is not vengeance but protection of society from similar offences." John McIntyre, a judge on the Court of General Sessions, believed that "the judgment is a wise disposition on the part of the court." One of his colleagues on the Court of General Sessions, Cornelius Collins, stated that "Judge Caverly was in a better position to judge than any other person and that to him the judgment imposed was a solemn duty."20
Religious sentiment was divided equally between praise and condemnation. Caverly's decision, predicted Simon Long, the pastor of Wicker Park Lutheran Church, "will do more to make Bolshevists than anything that has happened in a long time. I fear its results upon society. It emphasizes the fact that only the poor may be hanged." Martin Luther Thomas, a representative of Deerfield Presbyterian Church, agreed that Caverly had fomented resentment against the wealthy in permitting "these men [to] escape the sword of justice because of their money and inf luence." But John Thompson, a minister of First Methodist Episcopal Church, disagreed, saying that the life sentence was the consequence of "a well-balanced, finely judicial decision." Johnston Myers, a spokesman for Immanuel Baptist Church, expressed satisfaction with the result if, of course, "there is to be no pardon and the boys will be treated like ordinary prisoners."21
Jewish opinion had been conspicuously absent throughout the hearing. No representative of the city's Jewish cultural institutions had yet allowed himself to be quoted in the newspapers; no rabbi had made any comment on the murder or its aftermath. The killers were scions of two of Chicago's most prominent Jewish families--it was, no doubt, better to remain silent than to blunder inadvertently into a controversy that might harm the Jewish community still further. Only now, after sentence had been pronounced, did the
Jewish Daily News express its circumspect belief that the crime was a consequence of the materialistic age. "The fault lies in our entire aspect of life. . . . The insistence that all that counts is money, the piling up of wealth, the production of things that can be sold in the open market, the self-sufficiency of man that he owes no responsibility but to himself, the virtual dethronement of God--all these are responsible for what is transpiring. . . . Judge Caverly has not just pronounced sentence upon the ill-starred youths. He has rendered a verdict against our present age. The truth is--and it must be faced--that our civilization is bankrupt."22
Psychiatrists and child guidance experts were unanimous in praising the judge. Caverly had ignored the psychiatric testimony in reaching his decision, yet prominent members of the medical community viewed the verdict as a victory for science and as an advance for the treatment of the mentally ill. Edward S. Cowles, a neurologist and director of the National Association for the Advancement of Scientific Healing, said, "Judge Caverly has made a great forward step, and this affair should call attention to the need of more careful study of the child's mind and personality." A. A. Brill, the author of
Fundamental Conceptions of Psychoanalysis, believed, from reading the newspaper accounts, that "there is no possibility of curing these youths. . . . I approve of Judge Caverly's effort to make sure they will never go free. But they are sick and the whole basis of our civilization is to take care of the sick, not to kill them." Max Schlapp, a professor of neuropathology at the New York Postgraduate Medical School, contradicted Brill--"it is probable that they could be cured"--yet agreed that Caverly's decision had been correct.23
The medical experts who had participated in the courtroom hearing--White, Glueck, Healy, Krohn, Church, and the rest--all refrained from commenting on the judge's decision. The psychiatrists for the defense had expected that their participation in the case would lead to reform of the legal process, but their advocacy for change found few echoes outside the medical journals. A writer for the
San Francisco Chronicle took up White's suggestion that psychiatric testimony be given in an impartial manner, and the editor of the Washington Evening Star deplored the tainted psychiatric evidence--"neither the defense nor the prosecution should be permitted to becloud the issue and confine the minds of jurymen by offerin
g expert opinions which are shaped by the source of the fees"--but such comments were few and far between.24
William Alanson White, the most prominent expert witness for the defense, was also the most vulnerable. White had built his public persona through his ability to take the middle ground between the psychiatric community, represented by the membership of such organizations as the American Psychiatric Association, and a general readership curious to learn about the new science of Freudian psychiatry. During the 1920s, White, more than any other American psychiatrist, was responsible for bringing psychiatry before a popular audience.
But his public career rested on his professional accomplishments, which depended in turn on his stewardship of St. Elizabeths Hospital. The Department of the Interior had formal jurisdiction over St. Elizabeths, and both the United States Senate and the House of Representatives had the authority to investigate conditions there. For some members of the House, White made an inviting target. He had been closely identified with Clarence Darrow's defense of Nathan Leopold and Richard Loeb, and, in the public mind at least, he was at least partially responsible for enabling the prisoners to evade justice. Rumors of an investigation into White's management of St. Elizabeths circulated through Washington during 1925. Not until April 1926, however, when Thomas Lindsay Blanton, a representative from Texas, charged that army veterans suffered from intolerable living conditions at St. Elizabeths, did Congress resolve to empower the comptroller general to investigate the administration of the hospital.
25
His report appeared in December 1926. It was harshly critical of White's administration. There was a lack of recreational facilities for the patients, there was serious overcrowding on the wards, and there were inadequate safety measures in case of fire. White had transformed the hospital into a center of psychiatric research, yet the stated purpose of St. Elizabeths, the report noted, was to treat the mentally ill. Strictly speaking, White had exceeded his mandate as hospital superintendent by enlarging the role of the hospital; Congress had never intended it as a site for medical research. Finally, and most seriously, there was scant regard for the constitutional rights of the patients--they had no access to disinterested legal or financial assistance.