Fikes v. Alabama

Mr. Justice Frankfurter, whom Mr. Justice Brennan joins,

concurring.

In joining the Court’s opinion I should like to add a few words. A case like this is not easy for one who believes very strongly that adequate power should accompany the responsibility of the States for the enforcement of their criminal law. But the Due Process Clause of the Fourteenth Amendment has placed limitations upon the discretion, unbridled for all practical purposes, that belonged to the States prior to its adoption, and, more particularly, confines their freedom of action in devising criminal procedure. It is, I assume, common ground that if this record had disclosed an admission by the police of one truncheon blow on the head of petitioner a confession following such a blow would be inadmissible because of the Due Process Clause. For myself, I cannot see the difference, with respect to the “voluntariness” of a confession, between the subversion of freedom of the will through physical punishment and the sapping of the will appropriately to be inferred from the circumstances *199of this case — detention of the accused virtually incommunicado for a long period; failure to arraign him in that period; 1 horse-shedding of the accused at the intermittent pleasure of the police until confession was forthcoming. No single one of these circumstances alone would in my opinion justify a reversal. I cannot escape the conclusion, however, that in combination they bring the result below the Plimsoll line of “due process.”

A state court’s judgment of conviction must not be set aside by this Court where the practices of the prosecution, including the police as one of its agencies, do not offend what may fairly be deemed the civilized standards of the Anglo-American world.2 This record reveals a course of conduct that, however conscientiously pursued, clearly falls below those standards. Such conduct is not only not consonant with our professions about criminal justice, as against authoritarian methods that we denounce. It derives from an attitude that is mimical, if experience is any guide, to the most enduring interests of law.

Flouting of the requirement of prompt arraignment prevailing in most States is in and of itself not a denial of due process. Cf. McNabb v. United States, 318 U. S. 332. But it is to disregard experience not to recognize that the ordinary motive for such extended failure to arraign is not unrelated to the purpose of extracting confessions.

“Ours is the accusatorial as opposed to the inquisitorial system.” Watts v. Indiana, 338 U. S. 49, 54. An analysis of the particular phase of the judicial process involved in applying the Due Process Clause to state convictions secured on the basis of confessions has been attempted in my opinions in Malinski v. New York, 324 U. S. 401, 412; Haley v. Ohio, 332 U. S. 596, 601; Watts v. Indiana, supra.