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From the Summer, 1997
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Is <title>Murder & the Modern Conscience by James Hitchcock

Murder & the Modern Conscience

A Case Study of Two Murders, the Trials, and the Question of Moral Responsibility

by James Hitchcock

Early one summer morning in 1860 an English nurse woke to discover that her charge, the infant Francis Savill Kent, was missing from his crib. An increasingly frantic search of the spacious grounds of Road Hill House finally revealed the boy’s body in an unused outhouse. His throat was cut, but apparently he had died by suffocation.

The local Wiltshire police anticipated the Keystone Cops in their ineptitude, managing to get themselves locked in the kitchen one night while they were supposed to be keeping watch. They scattered suspicions in all directions, including toward the nurse and the victim’s father.

The detective division of Scotland Yard was still new, and the Yard’s most accomplished sleuth, Jonathan Whicher, was assigned to the case. He concluded that the murder had been committed by sixteen-year-old Constance Kent, Francis’s half-sister, and she was duly arraigned. However, the evidence against her was flimsy, local opinion was outraged that she should be suspected, and she was soon freed. Whicher shortly thereafter resigned from the police force.

Another Murder

On a spring morning in 1924 a laborer on his way to work saw a pair of human legs protruding from a culvert on waste ground on the south side of Chicago. Eventually the body was identified as that of 14-year-old Bobby Franks. He too had died of suffocation, although he also had been bludgeoned.

Police suspicions again scattered in all directions, including especially toward two of Bobby Franks’s teachers. However, a pair of eyeglasses found at the scene eventually led to Richard Loeb and Nathan Leopold, neighbors of the Franks family. When caught in several lies, the pair gave up and confessed to the crime.

The Road Hill House murder also was solved by a confession. After the murder Constance Kent traveled on the Continent for a time, then returned to England and took up residence in an Anglican convent. While being prepared for Confirmation she told her spiritual director that she indeed had committed the murder. She went before a magistrate and pleaded guilty and, without trial, was sentenced to death, which was then commuted to life in prison.

Constance’s spiritual director was Father Arthur Douglas Wagner, a leading “ritualist” in the Church of England. There was storm of public protest over his action, on the grounds that he had first led an emotionally vulnerable girl into the Catholic practice of confession, then violated his obligation of secrecy. But Wagner was careful to state that Constance’s revelation to him was made outside the confessional and that she had authorized him to speak on her behalf. His role in the case is credited with ultimately helping to gain acceptance of the practice of confession within the Anglican Communion.

Defending the Crimes

Despite their own confessions Loeb and Leopold were at the center of what has aptly been called “the trial of the century.” Their lawyer, the famous Clarence Darrow, advised them to plead guilty, his sole aim being to allow them to escape the death penalty. He did not have them plead insanity, because that would have required a jury trial, and instead concentrated on persuading the judge, through a parade of psychiatrists, that the defendants had “diminished responsibility” because of certain experiences in their own past. The judge apparently accepted the claim, and sentenced them to life in prison.

When Constance Kent killed her half-brother she was four years younger than Loeb and Leopold were when they committed their murder. Although her family was well off, she had minimal formal education compared with the Chicagoans’ brilliant record at major universities, and she certainly knew much less of the world than they did. Nonetheless she accepted full responsibility for her action. Although it would later be revealed that there were indeed pathological conditions in the Kent household, no one at the time suggested that these were mitigating factors.

By contrast, although Loeb and Leopold prided themselves on having tasted all that life had to offer, including at least four criminal transgressions prior to the murder, Darrow’s strategy was to portray them as mere “boys.” One of his chosen psychiatrists, William Alanson White, lamented in a private letter that vicious prosecutors were harassing two young men whose crime was that they “stumble and fall when they try to pass the threshold that separates childhood from manhood.” (White at one point proposed that the Franks, Loeb, and Leopold families jointly endow, in memory of their “lost” sons, an institute for the study of adolescent disorders, and could not understand why the Franks family seemed uninterested in his idea.)

The argument that their past lives somehow diminished their responsibility for the crime came down merely to the fact that Loeb’s mother had died when he was an adolescent and that Leopold had been under the control of allegedly strict governesses. The defendants snickered throughout the trial and gave jaunty interviews to reporters they thought might be sympathetic to their plight.

Remorse

The governor of Millbank Prison, where Constance Kent was incarcerated, later wrote his memoirs, describing her as a wraith-like creature who would suddenly disappear if any visitor seemed to know who she was and might seek to talk with her. After twenty years she was released and disappeared from public view.

Richard Loeb was killed by a fellow prisoner in 1936, but he and Leopold, who were incarcerated together only during the last four years of Loeb’s life, were anything but self-effacing in prison. Reporters continued to show interest in them, and they became prominent in all kinds of prison activities. They also seemed to have mysterious influence, on one occasion escaping punishment even though they were caught drinking alcohol in their cells.

It was four years after Leopold and Loeb entered the penal system of the state of Illinois that Constance Kent at last chose to unveil the mystery of Road Hill House.

An English author, John Rhode, had written a study of the case, and one day in 1929 his publisher received an anonymous letter, postmarked in Sydney, Australia, by a person claiming to have knowledge of the circumstances of the murder. The contents of the letter suggested that the author was Constance Kent herself.

The author offered no excuses for the murder but sought mainly to correct certain misconceptions about other people in the case. Constance’s mother had been ill for some years prior to her death and was regarded by some people as mentally deranged, which the writer vigorously denied. After her death Samuel Kent married the children’s governess, and Constance bitterly resented the fact that the new Mrs. Kent regularly disparaged the former Mrs. Kent. Constance was driven to kill her half-brother out of hatred for her stepmother; she had no animosity towards the small victim himself. The writer described Constance as utterly remorseful over her deed, which she had come to realize was unspeakably wicked.

To the end of their lives Loeb and Leopold are not known to have ever expressed remorse for their own crime. In his memoirs Leopold stated that Loeb, whom he claimed had actually killed Bobby Franks, was incapable of remorse. But his description of his own mental state was also curiously evasive on the question, leaving the impression that the murder was to him simply an inexplicable episode of long ago that had unfortunately blighted the rest of his life.

Their Later Years

Many years after the mysterious letter from Sydney, Bernard Williams, the definitive student of the Road Hill House murder, traced, in his book Cruelly Murdered, the later history of Constance Kent. After prison she had gone to Australia to be with her brother and his family, and in due course had become a nurse. For decades she tended the sick in a variety of situations and came to be regarded as a heroically self-sacrificing individual, living under a false name, with few people knowing her true identity. In 1944 she celebrated her 100th birthday, receiving greetings from King George VI and a personal visit from the Anglican archbishop of Sydney. She died later that year and, if she paid attention to such things, had the incredible experience of remembering events that stretched from the Charge of the Light Brigade to within two months of D day.

Many people have heard that Nathan Leopold in later years was also a heroic figure. He was finally paroled in 1957 because he volunteered as a “guinea pig” in malaria experiments, and after parole went to work in a rural hospital in Puerto Rico, where some people compared him to Albert Schweitzer. He died in Puerto Rico in 1971.

But, according to the definitive study of the Loeb-Leopold case, Hal Higdon’s The Crime of the Century, what people “know” about Leopold’s later life is not altogether true.

He was a volunteer subject of malaria experiments, but so were 400 other convicts, none of whom received the kind of publicity he did. In fact the doctors who conducted the experiment found him so uncooperative that they refused to support his application for parole. He did do useful work in Puerto Rico, but he also boasted to friends that he routinely violated the terms of his parole, spending much time in bars and brothels and even carrying a gun. He never ceased resenting what he regarded as the stupid and inferior people who had dominated his years of punishment.

Moral Conversion

Constance Kent’s is one of the great stories of moral conversion, a story she chose never to tell publicly or in her own name. She merely allowed the rest of her entire life—six decades—to serve as atonement for the evil deed she had once committed, an atonement that she probably thought could never be sufficient.

Richard Loeb almost certainly died defiant and unrepentant. Nathan Leopold was at best fitfully regretful, and even his regret cannot be separated from his relentless, and ultimately successful, effort to manipulate the judicial system for his own benefit.

The adult Constance Kent never even hinted that the emotional scars in her family (her father habitually had affairs with servants and treated her mother abominably) in any way excused her actions, even as Clarence Darrow grasped at every straw in his clients’ lives that in any way could be stretched to justify the murder of Bobby Franks.

Many things happened in the world between 1861 and 1924, among which was the defiant rejection of the Christian conscience. If at their worst the Victorians were unable to see that a starving child was justified in stealing a loaf of bread, they also did not make heroes out of villains and were deeply shocked by deeds like the Road Hill House murder. (Public support of Constance Kent in the beginning was due to the conviction that a young girl was obviously incapable of such a vicious deed.) She was examined by a doctor and declared sane, and at her trial Judge Willes wept as, the notorious black cap on his head, he passed the sentence of death.

A Modern Twist

So much did the moral universe change in the decades after the Road Hill House murder that, when a leading criminal historian came to write about the case in the 1940s, she could not accept Constance’s confession. According to Iseult Bridges’s book, Saint with Red Hands, Constance was the victim of emotional manipulation by Arthur Wagner, her motive in confessing being to protect the real murderer, her father. (As Bernard Williams points out, by the time of her confession her father was no longer a suspect.) Bridges found the entire Christian concept of redemption unfathomable except as pathology—the story of Christ’s passion made Constance also want to suffer innocently.

The Loeb-Leopold trial was perhaps the first legal case in which psychiatric evidence was used not to argue insanity, a plea Darrow cunningly avoided, but “diminished responsibility.” Darrow said his motive in taking the case was his absolute abhorrence of capital punishment for any reason. Although he did not say so explicitly, he must have thought that if Loeb and Leopold did not deserve death, no one did.

But, like some other critics of capital punishment, many of his arguments logically went not only against the death penalty but also against any punishment at all, a plea that not even Darrow dared to make. He and his hired therapists habitually referred to Loeb and Leopold as “boys,” talked about the inevitable perplexities and uncertainties of youth growing up, and savagely attacked the prosecutors as sadists whose sole motive was a lust for blood. The defendants, while not denying their crime, tried to place the judicial system itself on trial, casting themselves in the role of victims both of society and of malevolent officers of the law.

Excusing Sin

In the ensuing decades innumerable criminals have been excused on the grounds of poverty and ignorance, but at the beginning of the modern era of criminology Darrow did not even have those excuses—his clients were wealthy, and both had compiled brilliant records at major universities. The claim that somehow they were not full moral agents was a wholly gratuitous one, although it apparently convinced the judge. Like Judge Willes in the Kent case, Judge John V. Caverly was in tears by the time Darrow completed his peroration.

The crimes were also gratuitous. Constance Kent recognized that part of the evil of her deed was that she had no grievance against her half-brother, and did not even dislike him. Her action was breathtaking in its cold-blooded calculation, a violent act perpetrated on one person in order to harm another. It was, she declared in her letter of 1929, “vile and unnatural.” Her stated motive for sending the letter, almost seventy years after the crime, was not in any way self-justification but precisely to explain her true motives and to deny that alleged mistreatment at the hands of her father and stepmother had anything to do with it.

Loeb and Leopold in effect boasted that their crime was even less motivated. They barely knew Bobby Franks and chose him as their victim only because he happened along at the right moment. Self-described disciples of Friedrich Nietzsche (although they apparently knew of his philosophy only from Jack London’s The Sea Wolf), they wanted to prove themselves supermen who could commit the ultimate transgressive act without conscience or remorse.

There have been many casual murders in history—in war, during robberies, as part of feuds—but there are no historical instances, prior to 1924, of the purely gratuitous act, of the kind described by Fyodor Dostoevsky in Crime and Punishment and actually carried out by Leopold and Loeb. Although casual murders are more common now than they have perhaps ever been, gratuitous murder to make a philosophical point is still rare.

Although the Franks family was of Jewish background, at the time of the murder they were Christian Scientists. Bobby’s father Jacob issued a public statement blaming Loeb and Leopold’s atheism for their action. Atheists understandably bristle at the claim that they are without morals, but in this case it was true—Loeb and Leopold themselves saw their rejection of God, of any transcendent spiritual reality, as inescapably leading to the conclusion that any deed is justifiable, the only sin is failure, and “inferior” public officials should not be allowed to have authority over “superior” criminals.

But most atheists are not murderers, and there is more involved in the moral revolution of the twentieth century than Dostoevsky’s “if God does not exist, all things are permitted.”

Are We Moral Agents?

Unable to face the stark evil of the crime, even Loeb and Leopold’s prosecutors ignored the murderers’ confessed motives and argued that they had done it for the ransom money, which they needed to pay gambling debts, an unconsciously ironic claim that even the rich are sometimes poor and in need of help. The prosecutors made this claim apparently because they did not think that public opinion (and perhaps not even their own opinions) could comprehend the purely gratuitous nature of the crime. If ever a crime opened a window into the unadulterated mystery of evil, it was the murder of Bobby Franks, and it is not surprising that most people averted their gaze.

By contrast, although Constance Kent’s crime was considerably less gratuitous, she and her fellow Victorians had no difficulty seeing, not only in murder but also in innumerable other kinds of human transgressions, not the struggles of desperate people, not uncontrollable impulses, not even coldly self-interested calculation, but a love of evil for its own sake, an awareness of evil that runs down through the centuries from the Epistle to the Romans through Augustine’s robbing a pear tree, and becomes a pervasive aspect of every culture influenced by the theology of John Calvin.

Judge Caverly was a devout Catholic, and it was an unnoticed irony that his faith did not apparently lead him to a recognition of the great mystery of redemption acted out on the hill whose name resembled his own. His Catholicism was not all that separated him from Calvin, for the judge apparently could not bring himself to believe that it was possible to commit an act purely for the sake of doing evil. He never explained his reason for accepting Darrow’s arguments, but unwittingly he became one of the founders of modern criminology, which at its worst simply denies that human beings are moral agents at all.

Loss of Conscience & Redemption

In religious circles, if not in secular ones, the word conscience is now thrown about with abandon, but its users rarely notice how it has come to mean almost the opposite of what it once did.

Constance Kent possessed a Christian conscience in the classic sense—it ate away at her soul until she was moved to repent of her sins. Loeb and Leopold in effect boasted that they had no consciences. They were engaged in a visible experiment in the eradication of conscience, and in their own case they succeeded.

But, if the murderers had no consciences, the community around them unwittingly allowed its own conscience to be subverted during their trial, as a pious Catholic judge and many of the general public tacitly accepted the new doctrine that human beings need not be held accountable for their actions, that the very atrocity of their deeds proves that they cannot be culpable.

“Conscience” is now a favorite word among liberal Christians, but it is used not in the classic sense of a faculty that relentlessly calls the individual to account, but in precisely the opposite sense—the faculty that constantly flashes a green light, constantly reassuring the individual that what he wants to do is morally right for him. More often than not, “conscience” is now not a voice encouraging right conduct but the power excusing wrong conduct, so that one’s sins actually become the basis of one’s self-righteousness.

Iseult Bridges’s view of the doctrine of redemption as pathological contained an insight of great importance, which she herself probably did not understand, for it is the possibility of redemption that alone makes it endurable for the individual to live with a genuine Christian conscience.

Constance Kent gained the strength to confront her own wicked deed as she prepared to let the Holy Spirit enter her heart, assured that, although her sins were as scarlet, they could still be forgiven, and her long years of patient, self-effacing atonement were proof that a miracle had occurred.

Nathan Leopold, however much he may have tried, never got beyond being a manipulator of the penal system and the press, even his acts of self-sacrifice being calculated for effect. Concepts like sin and forgiveness were utterly foreign to him, and probably he could not have confronted the horror of his guilt precisely because he knew that, having once done so, tranquillity would never again be given back to him.


James Hitchcock is Professor of History at St. Louis University in St. Louis. He and his wife Helen have four daughters. His most recent book is the two-volume work, The Supreme Court and Religion in American Life (Princeton University Press, 2004). He is a senior editor of Touchstone.

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