The Clarence Darrow Letters

Mr. Wm. C. Ewing,

c/o Mass. Council for the

Abolition of the Death Penalty,

4 Park street,

Boston, Mass.

My dear Mr. Ewing:

Your letter in reference to capital punishment was duly received. I somehow feel the urge to write you further about it. I think you are absolutely wrong on prohibition, if you believe in prohibition. In the first place, the old time chaplains and people of that ilk who hunted around prisons, were always interested to say that all the inmates were there on account of drink. The truth, as I believe, is that it has always been less than one in a hundred and probably one in a thousand would be much nearer correct. I have been defending people charged with murder for a good many years. I have never yet found a case where the homicide was due to drink. I found one case where I hesitated some time between making that defense and self-defense, but decided on the latter. The way the chaplains have made up the figures, is to ask a man if he drank. Pretty nearly all of them did drink as they likewise ate, and then inmates of prisons know what please chaplains so they give the answer wanted. Likewise they all want alibis and whiskey always furnishes an excellent one.

I would say that certain things go with most homicides, in fact, with most of the things we call crime, although I do not like the use of the word. There is no such thing in the

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world. I would say ignorance, lack of opportunity, no early training, no trade or calling and the fact that a criminal career commences in early youth. Most men who go to prison also drink. However, half of them are subnormal. When several things go together it is seldom possible to say which one is the cause or whether any one is the cause. Cause and effect are not easy to locate in human activity. The most that can be said is that certain conditions affect it. Almost all people who go to prison are poor and always have been poor. If a man begins a course of crime when young, if he has no education, if he is subnormal, if he has no trade and if he drinks, what was the cause of the killing? Nobody can tell. There are such things as promimate cause and remote cause. But, drinking cannot be a cause excepting in the case of drunkenness or a long course of overdrinking which weakens the structure. This can come much more easily from over-eating and perhaps from over-working, or from any one of perhaps a thousand things. I know perfectly well that men have committed homicides while drunk who would never have committed them while sober. These things are also in the realm of uncertainty because if a man drinks and intends to rob or kill, the chances are he will drink before he performs the act. You can hardly imagine a man who would do it without bracing up on coffee, whiskey or something else. But this does not demonstrate any casual connection.

Of course, I am very bit terly opposed to prohibition. This is not at all because I care for liquor, for I do not care

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for it. You could probably put all of the liquor I ever have drank in a ten gallon container, but I am opposed to it because I am opposed to interference of people with individual conduct. I would not be opposed to arresting a man if he was drunk, or possibly arresting him, if, through drunkenness or shiftlessness, he did not support his family. But, to say that I, who seldom drink, cannot take a glass of wine or whiskey because some "damn" fool abuses it, is to me indefensible.

I think you can understand my position because you evidently do not like meddlers. Freedom is a hard thing to preserve. In order to have enough you must have too much. Nobody can draw the line in matters where Government should begin or individual freedom leave off. They are purely imaginary and subject to ebb and flow. We do not know that some people have a more scientific idea of the function of the state than others, but we know you can divide men into two classes: One which is always trying to more and more control the conduct of its fellows, and the other class which is always trying to get more freedom. I belong to the latter class and would/not be a prohibitionist even if I thought liquor caused a good deal of homicide, because I think that a large decree of liberty is necessary to any sort of human enjoyment. But then I do not like prohibitionists. Of course, there are exceptions everywhere. I have seen some "damn" good fellows who were prohibitionists. Of course, there are not many. Mencken defined a prohibitionist as a man you wouldn't want to take a drink with if he drank. I have found that out

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in my life that the fellows who believe in prohibition believe in Sunday laws; they would believe in burning heretics; they believe in making the use of tobacco criminal; they set themselves up as authorities on morals and conduct and they have not the slightest tolerance for anyone who differs with them.

Any liberal minded man who deals with a prohibitionist is playing with fire. It is hard enough to preserve liberty as it is, and we do not preserve it. Look at Boston where you cannot go to a theatre on Sunday; you cannot have games and sports where admissions are charged; you cannot buy books that are fit to read; you cannot do much of anything unless it appeals to a lot of old maids and blue-nosed emotionless men. I do not like it and I believe you ought to think it over. You will never find anybody who will lay down any scientific rule as to where the individual's rights might be stopped. The single-taxer would probably think he could, but then he thinks he can lay down rules for everything. I have laid one down to my own satisfaction.

The theory of criminal statutes is that men may be sent to prison for doing something that is morally wrong, and which they knew was morally wrong. Now, of course, there is no way to tell what morals mean excepting custom and habit. Morals are based upon folk-ways. But anything that is done, where one-fourth or even one-tenth of the population adhere to that sort of conduct without any feeling of guilt is not a proper subject for a penal statute.

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I would guess that much more than half the people of the United States take a drink without the slightest feeling of moral guilt. There are a few of such men who believe in prohibition, but they are absolutely inconsistent with any sane idea of the function of a criminal statute. To say that everybody who takes a drink and believes in it, should be sent to jail, would shock most men unless they were utterly lost to any sane ideas of human freedom. Of course, it could be carried into eating as well as drinking. I am not at all sure there is any standpoint from which drinking is wrong. Some people think it produces poverty. I do not. Poor people would not have any more money if they did not drink. There may be a few exceptions to the rule, but not many. The person who drinks excessively would waste his money some other way. The amount of money spent in drink would never in any way compare with the money spent on automobiles, gasoline, tobacco, silks and satins, extravagant houses and foolish luxuries. Of course, enough could be produced and more to take care of everybody with comfort and a large decree of luxury, if only the question of distribution were solved. Taking a drink from a man simply means lessening his relaxation and his power of release from the drudgery of everyday life without in any way bettering his condition.

However, I do not mean to preach an intemperance sermon to you, but I feel called upon to talk a little about it. You say that the homicides in the United States have increased since 1900. How do you know this? I do not pretend to know. I used to be a hound for gathering statistics. I pay no attention to them in

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Illinois; they are not worth anything.

Let me make a few suggestions for you to think of. There are no reliable statistics on homicide anywhere in the United States. You may write to Washington, but you will find none. You may get English statistics and Canadian statistics, but not American statistics. Of course, some sort of statistics might be gathered by writing to the various states. Only a certain portion of them keep any and these are very imperfectly kept. True, in the last ten or fifteen years an effort has been made to keep criminal statistics. If the statistics show that homicide has increased since 1900, it could doubtless more than be accounted for by the greater care in gathering statistics. To my mind there is not a question but what it could.

But, that is not the only way to account for it. What is homicide, anyway? Homicide does not necessarily imply any evil intent. It means the unlawful killing of a human being with or without malice. Killing by gross carelessness or disregard of human rights like shooting off a gun in a crowded street. In all tables of statistics for the past few years there are a large number of automobile accidents included. I saw a while ago that twenty-five thousand people were killed from automobile accidents in the United States last year. This is more or less correct. So far beyond the homicides in number that there cannot be any comparison. But where an automobile accident caused a death and the accident is due to gross carelessness or to disregard of rights of others, which amounts to about the same thing, these are included

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in homicides. They are included everywhere in the United States so far as I have any knowledge of the subject, which is considerable. Automobiles have increased to an alarming extent of late. There were none to speak of in 1900. Do these people who parade their "fool" statistics ever stop to analyze them? I shall send you in a few days a careful analysis that I have made of the figures of the Criminal Commission in Chicago where there are reported as much as six times as many murders as really take place, and you will see from my article, which is a reprint from Harper's Magazine, that there is no answer to it and cannot be any. The newspapers and preachers, and other respectable people, never try to find out causes. They want to sell papers and sermons. The unsuspecting public gets into a white heat of anger so that somebody will be punished. It is pure sadism.

There are an infinite number of causes that enter into homicide. For instance, the growth of Ku Klux Klamism has produced a good many by intensifying religious differences. Prohibition has been the cause of many of them. The jails in many places are filled with violaters of the prohibition law, none of them for murders as between different gangs of bootleggers. They will increase as long as there is prohibition. At least I don't want people to stop bootlegging. Liberty is worth fighting for. Strikes and lock-outs cause them. The cheapening of the value of life by the great war undoubtedly causes many, and a surprising number by returned soldiers. But, the psychology was not confined to returned soldiers; it affected all classes. In this country

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the mixture of races and creeds has been a prolific cause of homicide. Our figures have been compared with England but of course the people who talk about it, as a rule, know nothing about England. As nearly as I can get at it, there have been for the last few years one hundred and fifty murders reported in England and Wales, with about thirty-five convictions carrying the death penalty. Of these thirty-five, twenty were reprieved so the executions were about fifteen where this country probably has had three or four hundred, with a population of two and one-half times as great.

If examples would do anything, nobody would kill any more. English courts probably have trials quicker, but that does not mean justice, neither does it mean a deterrent. Nobody would dare say a word about a criminal case in England, in any way reflecting upon any person connected or allowed to be connected with it until after the trial. Papers/ We tray all the cases and convict all of the defendants within a week of the time the thing has happened, and it is almost impossible to get a fair trial in this country.

Another thing is that newer countries produce more violations of law than older countries. A violation of law simply means getting out of the old rut, which is violating a custom, and the ruts are not as deep in newer countries as in older ones. Someone may call your attention to Canada. This is no exception. Take out the large cities and the mining districts and the manufacturing centers in Canada and America and the results will be the same. Canada has few large cities and a fairly homeogenous population.

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I do not like the idea of our fellows accepting the "fool" statements that are made by the sadists. People get punished quickly enough.

You suggest to me that if everybody knew that every crime would be punished wouldn't they stop? Probably they would, but if everybody gave up committing them, they would likewise stop. Nobody knows that every crime would be punished. In the first place, they don''t know what the word means. Everybody who robs or kills prepared an escape and generally succeed in making it. That is true the world over and always will be true. Only the timid can be kept from it by fear of punishment and the people who commit crimes are not timid. I use the word crime because other people use it. That word never should be used. Crime is only a violation of custom and habit that has become the subject of a penal statute, and that is all there is about it. For instance, we have statutes against cheating, but there is not a newspaper in the world that does not carry lying advertisements and not a merchant who does not cheat. Advertisers write for the purpose of imposing upon "damn" fools and making them buy something they do not want and cannot pay for. Over-reaching is business. Selling real estate and services,--all sorts of things are alike. But, only the poor get hooked under such statutes.

I have never had as much sympathy as I might with many of the books against capital punishment. They have taken a religious attitude which is of no value. I would do as you do, I would

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use it where I could get any results, but a man cannot submit to it in his own thinking, at least.

The tendency is to make penalties worse instead of better. There are some such things in your book, good as it is. People argue there would be more convictions if we got rid of the death penalty. Probably there would but penalties are too hard anyhow, and prisons are too horrible. This is much more important than capital punishment because there are tens of thousands in prison where there is one who is executed. And, anyway, to a sane person a long term of imprisonment is worse that death. It does not shock we sensitive people so much, but it is really worse. I have an idea that if you had a choice to die from some natural cause or to go to prison, you would want to die. If you knew you were liable to go to prison for a long term of years, when you went to bed, you would hope you would not wake up. That does not mean that a person would hasten to land himself in the frying pan.

I hope you will excuse the length of this letter. Perhaps it will not be of any value to you, but I think it may possibly give you a little different slant on some things. With kind regards, I am

Very truly yours,

P.S. I note on re-reading your
letter that you refer for
statistics to Dr. Haufman
of the Babson Institute and
the Prudential. I wish you would
have them send me copies. I still
think I can explain them if I see
them.

CSD