Reassessing the Individualization Mandate in Capital Sentencing: Darrow's Defense of Leopold and Loeb

84 Pages Posted: 3 Oct 2007

See all articles by Scott Howe

Scott Howe

Chapman University, The Dale E. Fowler School of Law

Abstract

This article begins by recounting the story of Clarence Darrow's defense of Leopold and Loeb in 1924. The account is based heavily on a recently republished trial transcript. The Leopold and Loeb trial captured world-wide attention and, even today, continues to engender interest and controversy. It was apparently the first instance of an elaborate psychological defense offered in mitigation to avoid the death penalty for defendants who conceded their guilt of a horrendous murder. Darrow's summation in the case is also considered one of the most spectacular examples in history of legal advocacy.

After describing Darrow's extrordinary defense at length, the article uses the story as a springboard for examining the Eighth Amendment function of the capital sentencing trial in the modern era. The Supreme Court has mandated a sentencing trial as a prerequisite to a death sentence, no matter how aggravated the capital crime. However, the Court has never provided a persuasive Eighth Amendment explanation for this requirement. The article explores whether such a rationale exists.

Keywords: Capital punishment, capital sentencing, death penalty, cruel and unusual

Suggested Citation

Howe, Scott, Reassessing the Individualization Mandate in Capital Sentencing: Darrow's Defense of Leopold and Loeb. Iowa Law Review, Vol. 79, No. 5, 1994. Available at SSRN: https://ssrn.com/abstract=1018503

Scott Howe (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States

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