by Simon Baatz
“This determination appears to be in accordance with the progress of criminal law all over the world and with the dictates of enlightened humanity. More than that, it seems to be in accordance with the precedents hitherto observed in this state. The records of Illinois show only two cases of minors who were put to death by legal process—to which number the court does not feel inclined to make an addition.
“Life imprisonment may not, at the moment, strike the public imagination as forcibly as would death by hanging but to the offenders, particularly of the type they are, the prolonged suffering of years of confinement may well be the severer form of retribution and expiation.
“The court feels it proper to add a final word concerning the effect of the parole law upon the punishment of these defendants. In the case of such atrocious crimes it is entirely within the discretion of the department of public welfare never to admit these defendants to parole. To such a policy the court urges them strictly to adhere. If this course is persevered in the punishment of these defendants will both satisfy the ends of justice and safeguard the interests of society.
“In number 33623, indictment for murder, the sentence of the Court is that you, Nathan F. Leopold, Jr., be confined in the penitentiary at Joliet for the term of your natural life….
“In 33623, indictment for murder, the sentence of the Court is that you, Richard Loeb, be confined in the penitentiary at Joliet for the term of your natural life….
“In 33624, kidnaping for ransom, it is the sentence of the Court that you, Nathan F. Leopold, Jr., be confined in the penitentiary at Joliet for the term of ninety-nine years.
“In 33624, kidnaping for ransom, the sentence of the Court is that you, Richard Loeb, be confined in the penitentiary at Joliet for the term of ninety-nine years.
“The Sheriff may retire with the prisoners.”27
THE VERDICT—NINETY-NINE YEARS for kidnapping, life for the murder—was a victory for the defense, a defeat for the state. The guards allowed Nathan and Richard to shake Darrow’s hand before escorting the prisoners back to the cells. Two dozen reporters crowded around the defense table to hear Darrow’s response to the verdict, but 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.”28
He gave a characteristic shrug of his shoulders, a shrug of relief that he could now focus on the cause for which he had argued so long. “I have always hated capital punishment. This decision…caps my career as a criminal lawyer and starts my path in another direction…. I shall begin now to plan a definite campaign against capital punishment in Illinois. Perhaps I may be able to take up the matter with the legislature immediately.”29
Nathan Leopold Sr. had already left the courtroom—he was too overcome to talk to the journalists—but Jacob Loeb remained behind to say a few words. “We have been spared the death penalty; but what have these families to look forward to?…Here are two families whose names here stood for everything that was good and reputable in the community. Now what have they to look forward to? Their unfortunate boys, aged 19 years, must spend the rest of their lives in prison. What is there in the future but grief and sorrow, darkness and despair?”
Robert Crowe was furious at the judge’s decision; how could the death penalty ever again be imposed if these two malicious killers had escaped with a prison term? True, Caverly had asked that Leopold and Loeb never win parole, but it was at least possible that they would eventually be released. It was a bitterly disappointing verdict, and in his statement to the press, Crowe made sure everyone knew whom to blame. “When the state’s attorney arrested the defendants he solved what was then a mystery. And by the thoroughness of his preparation of the case, the state’s attorney forced the defendants to plead guilty, presented a mountain of evidence to the court and made his arguments.
“The state’s attorney’s duty was fully performed. He is in no measure responsible for the decision of the court. The responsibility for that decision rests with the judge alone.”30
Later that day, Jacob Franks also spoke to the reporters. He was pleased that it was finally over. There was now no possibility that the defense would appeal the sentence. “There can be no hearing in regard to their sanity,” Franks said; “there can be no appeal, there can be no more torture by seeing this thing spread over the front pages of the newspapers. It will be easier for Mrs. Franks and for me to be relieved of the terrible strain of all this publicity.”31
NEITHER NATHAN NOR RICHARD HAD ever expressed remorse for the killing, and neither thought now to use their final interview with the press to admit contrition. Nathan, back in his cell in the county jail, was his customary imperious self; he called to the sheriff, Peter Hoffman, with one final request.
“Go out,” he commanded, “and order us a big meal. Get us two steaks”—he held out his thumb and forefinger—“that thick!”
“Yes, and be sure,” Richard chimed in, “they are smothered in onions. And bring every side dish you can find. This may be our last good meal.”
“And,” Nathan added, “bring chocolate éclairs for dessert.”
At eight o’clock that evening, Nathan was fast asleep on his bunk. Richard sat smoking a cigarette, sitting on the edge of his bed, an unfinished novel lying beside him, watching through the bars of his cell as the guards patrolled the corridor. Detectives from police headquarters stood in the main lobby of the Cook County jail while uniformed police, in addition to the jailers, kept watch on the hallways and corridors.
Tomorrow they would leave on a dangerous journey to the Joliet penitentiary.
Feelings about the verdict ran deep in Chicago. It was a provocation that two pampered rich boys had gotten away with murder—every Chicagoan had hoped to see Leopold and Loeb swinging from the end of a rope. It seemed a travesty, an affront, that Bobby Franks was in his grave yet Leopold and Loeb were very much alive, eating chocolate éclairs and bantering with the journalists.
That evening Robert Crowe issued another statement. It was a provocative, inflammatory statement that said more about the boys’ relationship than anyone had ever before publicly revealed; Crowe now gave substance to the rumor that Leopold and Loeb were homosexuals.
“In malice, premeditation, and deliberation the crime of these defendants is unequaled in the criminal history of the state. It is an atrocious and cold blooded murder…executed after months of planning and careful deliberation…. The evidence indicated acts of perversion between Leopold and Loeb extending over a long period of time. The evidence indicated that Loeb had committed other crimes…major crimes of a serious nature. Both defendants were known to have associates of a loose and immoral character, and Loeb had a venereal disease at 15.
“Both had the reputation of being immoral…degenerates of the worst type…. The evidence shows that both defendants are atheists and followers of the Nietzschean doctrines…that they are above the law, both the law of God and the law of man…. The murder and kidnaping for ransom of 14 year old Robert Franks struck terror to the heart of every father and mother throughout the community…. It is unfortunate for the welfare of the community that they were not sentenced to death.”32
Crowe might have waited until Leopold and Loeb were safely locked up in Joliet Prison before releasing his statement. Now he had magnified the prisoners’ villainy and greatly increased the danger to their lives on the car journey from Chicago to the penitentiary. Would someone take Crowe’s words as a license to kill? Would there be an ambush on the road to Joliet?
FEARS OF AN ATTACK PROVED exaggerated; no one ambushed the motorcade. But there was almost a nasty accident on the road; as the three-car convoy proceeded along the highway, the brakes on the lead car, a black Cadillac sedan, suddenly locked. Leopold and Loeb, traveling in the second car, a Packard limousine, at fifty miles an hour, received an unpleasant jolting—their
driver swerved to avoid the Cadillac, veered off the roadway, and ended up on the adjacent tracks of the Chicago, Joliet and Elgin Railroad. They suffered only minor bruises, and after the sheriffs had pushed the Packard back onto the road, the motorcade proceeded once again to the penitentiary.33
As they approached the prison, they could see the high sandstone walls of the penitentiary illuminated in the headlights of the cars. A huge crowd waited by the large gates to greet the two celebrities; as the cars approached, a roar of recognition rose up from the mob. Sheriffs and prison guards battled to clear a path through the prison gates, and within seconds Nathan Leopold and Richard Loeb were inside Joliet Prison.
27. LEOPOLD AND LOEB ENTER JOLIET PRISON.
The lock in the center door clanked as the key was turned to shut out the world. The prison, first opened in 1858, was a forbidding place at the best of times; now, in the twilight, the massive stone walls behind them and the steel-barred gates in front conspired to give the penitentiary a menacing, threatening atmosphere. Richard stumbled on a paving stone, but caught himself, as he stepped toward the first steel gate; Nathan looked around and noticed the prison guards staring silently down at them from a second-floor gallery, their rifles, cradled in their arms, pointing skyward.34
The warden, John L. Whitman, received the confinement papers from the Cook County sheriff, who turned to leave for the ride back to Chicago. It was already eight-thirty in the evening; there was no time tonight to go through the customary procedures—photographs, medical history, paperwork; those could wait for the morning. Three guards escorted the prisoners across the jail yard, past the shadowy form of the bakery on the left, and down a gravel path to the isolation block for new arrivals. The prisoners had ten minutes for a shower in the bathhouse and then a new set of clothes: Richard had discarded his golf sweater and gray flannel trousers and Nathan had removed his suit jacket and trousers; now the guards provided both prisoners with the standard prison uniform of blue denim jacket and pants.35
Both boys lay on straw mattresses in their cells—Nathan at the east end of the block; Richard, as far distant as possible, in a cell at the other end of the corridor. In the darkness, staring at the ceiling, not thinking to go asleep, but just running over the day’s events, they could hear the murmur of the guards’ voices in the corridor, beyond the cell bars.
Very soon both Nathan and Richard were fast asleep; they spent their first night in Joliet peacefully.
17 THE AFTERMATH
I was asked in Pottsville whether L & L would ever get out. I replied that the law of Ill. permitted a pardon or parole after twenty years:—Whether they would ever get out no one could say.1
Clarence Darrow, December 1924
C—sort of hates to admit that he is NOT rather well-off, after all the world supposing that he reaped such a reward from the L-&-L case ooo, ooo, lalala-lalala-LA! while, in truth, for that he received LESS than for anything that took so much time and tissue out of him and his life.2
Ruby Darrow, n.d. (1925)
LIFE IN PRISON! CAVERLY’S DECISION, according to the editor of the Newark Evening News, was a travesty of justice. It would surely confirm the popular prejudice that even in a court of law, the rich could purchase the result they desired. “There is one law for those who can command unlimited resources and the highest legal talent, another for the poor devil who must take his chance with the best he can afford…. The machinery of justice in Illinois has once more operated to an end that comes close to accounting for the murder-ridden criminal record of Chicago.”3
It was a theme endlessly repeated in newspaper editorials: money had subverted justice; wealth had done away with the principle that all were equal before the law. The crime had been atrocious, one that conspicuously deserved the death penalty, yet the defendants had escaped the scaffold solely because they had had the wherewithal to purchase the guile and ingenuity of Clarence Darrow. “In the criminal history of the country there is nowhere recorded a more cold-blooded, a more sinister and cruel murder than that of young Franks,” the San Francisco Bulletin declared. “It was done with extreme cunning by youths—one 19 years of age, the other 18—of exceptional education, intelligence and careful breeding. In the face of these facts Judge Caverly has given to Leopold and Loeb an ‘easy sentence.’…Judge Caverly’s verdict…will tend to a lowered confidence in our machinery of justice…. It is to be feared that it will augment a growing sense that there is one law for the obscure and another for the socially powerful.” The editor of the Kansas City Post warned that anarchists and other malcontents would point to the judge’s decision as evidence of a divided society: “The theory that there is one set of laws for the rich and another for the friendless poor has received substantial support as a civil propaganda gnawing at the very vitals of national confidence and pride.”4
But did the wealth of the defendants in fact have any influence on the decision? Caverly had based the sentence on only one criterion—the youth of Leopold and Loeb—and in his conclusion he had explicitly disregarded the psychiatric evidence. In this light, therefore, the efforts of Clarence Darrow and the testimony of the medical experts had been of no account and had no effect on Caverly’s determinations. “What the lawyers did or said for the defense went for nothing,” wrote the editor of the New York Times. “Judge Caverly simply ignored it. Had the youthful murderers been poor and friendless they would have escaped capital punishment precisely as Leopold and Loeb have escaped it. The Judge has effectually stopped the mouths of those who might have been inclined to complain that in Illinois there is one law for the poor and another for the rich.”5
But was this not, nevertheless, an arbitrary decision? What was it about the youth of Leopold and Loeb that entitled them to escape hanging? There was no clause in the Illinois statutes that excused murderers younger than twenty-one from the death penalty. On what grounds did Caverly use their age as a reason to save Leopold and Loeb from the scaffold? Did Caverly believe that because they were nineteen and eighteen years old, respectively, their judgment was therefore necessarily inchoate and immature? Was their sense of responsibility necessarily diminished because they were still teenagers? Neither Leopold nor Loeb had shown any signs of immaturity in his academic career; moreover, the planning of the murder had demonstrated calculation and determination, qualities difficult to reconcile with immaturity. “It is narrow legalism to excuse Loeb and Leopold on the score of their youth,” the St. Paul Dispatch argued. “In a formal sense they certainly do comply with the definition. They are, in years, youths and they did enter a plea of guilty. Yet, in any real sense they are not youths, their crime was not an outburst of youthful irresponsibility, and if they had not committed this crime no one would have judged them intellectually ‘immature.’”6
At what point had Caverly arrived at his decision? He had known the age of each defendant at the beginning of the hearing. Had he determined, at that moment, that they were too young to hang? Surely not! “It is repugnant to all our concepts of law and justice,” wrote the editor of the New York Sun, “to suppose that a Judge, knowing that the law provided for capital punishment in certain cases, would take his seat to try these cases, predetermined not to inflict capital punishment.” Yet it seemed equally unlikely that Caverly would suddenly decide, during the hearing, that the youth of Leopold and Loeb precluded the death penalty. It was a puzzle made even more inscrutable by the defendants’ behavior in the courtroom, continued the Sun. “During the trial Loeb and Leopold did not conduct themselves in a manner suggestive of youth. Neither indicated the least repentance for the shocking crime to which they had pleaded guilty…. Not once, we are sure, did either of the murderers impress anybody—except perhaps Judge Caverly—with his youth…. And yet it must have been during that period that the Judge, who had begun the trial knowing the ages of the defendants and knowing that capital punishment still existed in Illinois, decided within himself that…these murderers were too young to be hanged.”7
And if
murderers below the age of twenty-one should not be executed, should not all such murderers be spared? Why some and not others? Many youths had received the death sentence in Cook County for lesser crimes; many were now sitting in the Cook County jail awaiting execution. Should not those cases now be reviewed?
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 influence, 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