Tribute to Fred E. Inbau.

• Author: Allen, Ronald J.
• Position: Includes four testimonials

NOTE FROM THE EDITORS

The Journal of Criminal Law and Criminology is proud to dedicate this issue to Professor Fred E. Inbau, who passed away on May 28, 1998. Professor Inbau's influence on criminal law was tremendous, but his influence on the Journal of Criminal Law and Criminology was even more significant. He was the Journal's Editor-in-Chief for many years, and contributed a significant number of articles and editorials to the Journal. Several of these articles are reprinted here,(1) along with a few thoughts from those scholars who knew him best, and a review of his excellent book, Criminal Interrogations and Confessions.

Professor Inbau was unafraid to traverse roads not taken by many of his colleagues. In many ways, his views of forensics, criminology, and police practice were ahead of their time. He was most outspoken in his criticism of the Supreme Court's decision in Miranda v. Arizona. This term, the Supreme Court will revisit the Miranda holding and the 1968 Congressional attempt to override that holding(2) in United States v. Dickerson, a controversial case in which the Fourth Circuit held that section 3501 supercedes the Miranda holding.(3) Professor Inbau's perspective on this turn of events will be sorely missed.

We hope you will find that revisiting Professor Inbau's work intellectually stimulates you as much as it did us while putting this issue together. He will be greatly missed by the Journal of Criminal Law and Criminology, but the imprint he left on the Journal will not be forgotten.

(1) In order to preserve the integrity of the original articles, the footnotes deliberately have not been updated to reflect currently-accepted Bluebook formatting.

(2) See 18 U.S.C. 3501 (1999).

(3) See United States v. Dickerson, 166 F.3d 667, 672 (4th Cir. 1999), cert. granted, 120 S. Ct. 578 (1999).

TRIBUTE TO FRED INBAU

RONALD J. ALLEN

I was in Italy when I received the news of Fred's death, and I learned a few days later that I had been asked to pay homage to his scholarly contributions. Lacking the natural eloquence of many of my colleagues and the other speakers today, I fear that I come to you armed only with the simple truth rather than art. Yet perhaps circumstances conspire to make a virtue out of vice, for the simple truth best describes and reflects the contributions of this simple, direct, and insightful scholar. Let me give you a partial list of some of the simple truths that capture his career. He saw before anyone else the risks attendant upon the Supreme Court being captured by a narrow ideology uninformed by a deep knowledge of the reality of law enforcement and its implications and that focused excessively on the rights of the accused to the exclusion of all other costs and benefits in the complex social structure comprising the criminal justice system. He predicted the explosion in crime rates that came to pass, although it came to pass for many reasons in addition to that of the Court's work product. He predicted the social unrest that would result from a declining sense of personal security generated by dramatic increases in criminality, and that it would be destructive of the legitimacy of any branch of government to fail to take appropriate action. And he predicted that constitutional adjudication more personally willful than respectful of traditional modes of constitutional decision making could not survive, that either the Court would have to abandon the implications of its decisions in what has come to be known as the procedural revolution, or else it would be forced from the field by opposing political forces more driven by that innate common sense typically so instrumental to American political decision making but sorely lacking in the Supreme Court's constitutional criminal procedure decisions in the 1960s.

I could literally spend hours giving example after example of the power and significance of these insights, and how current law in large measure reflects them. I will limit myself to just one, Fred's favorite. In his introductory remarks in his casebook preceding Miranda v. Arizona, he predicted the case's demise, yet he nonetheless presented it to the students because it represented the then existing law of the land. I note that the more recent editors of his casebook have eliminated these introductory remarks, which I fear demonstrates the truism that the sins of the disciples should not be visited on the master, for, in one of the great ironies in the field, he has been proven largely, although to be sure indirectly, right.

Fred knew that neither the actual holding of Miranda nor the implications of its astonishing rhetoric could long survive, and that its intellectual foundations would not bear the weight of any extensions. Fred is often thought to have been proven wrong by the failure of the Court to explicitly overrule Miranda, but in fact, it is Fred, not his high powered intellectual opponents, such as Yale Kamisar of the University of Michigan, who has actually won the day. Not, by the way, that Fred would ever think in terms of winning or losing; he never personalized any of his professional life, so far as I can tell, but I digress. Let me finish with Miranda first. Immediately following the case, the Supreme Court under the immense political pressure that Fred anticipated would arise, began its retreat--pressure whose bedrock, by the way, was common sense, a quality Fred possessed in great abundance and in indirect proportion to his academic opponents. In any event, the Court refused to extend the case retroactively; it held it created only prophylactic rules, not constitutional commands; the rules could be flexibly administered; waiver could occur simply and directly without the need of a well defined script; the rule did not apply at all to on the scene questioning or when a serious question of public safety was at stake. And so on. The Court never even came close to taking the next logical step quite evident in Miranda itself and urged on it by its academic supporters of forbidding all confessions resulting from police interrogation. We have now reached the point, in fact, where the police have largely stopped objecting to Miranda. They have adapted to it, and the Court has adapted its rules to the police. It undoubtedly still comes with a price, but the price is bearable, and its overruling might possibly be worse than the disease.

Now, let me tell you another great irony, one that again shows the depth of insight possessed by this simple, direct man. Fred once agreed with me that he doubted Miranda should be explicitly overruled. He, like me, feared that it would be taken as a symbol by the police that, so to speak, all bets were off, and a return to the days of the third degree was acceptable. Well, you might be wondering, for all the good sense of that concern, where is the irony? It lies here. Fred has often been vilified by his opponents in the academy as though he were in favor of anything that forced words out of a suspect's mouth. The truth of the matter is that Fred was one of a handful of individuals most responsible for the civilizing and professionalization of the police. Unlike his single minded critics who see only the costs imposed by the police and who value only abstract intellectualization, which by the way is why they have become largely irrelevant and Fred's views more and more transcendent, Fred saw the whole picture, and he saw it as it really was, not how some theory predicted it should be. When he first looked at the system in the earliest years of his career--and here is the irony--what he saw was police forces out of control, and he undertook to civilize them. You have heard of his contributions to the science of forensics, but his contributions far exceeded those. Whenever he instructed the police, and remember, that was all the time, he harped on one point over and over again--you cannot do anything that would make an innocent person confess. Violence and threats of violence were simply out of the question. Cruelty designed to break the will, whether physical or mental, could not be employed. Could the police exploit the weaknesses of suspects, if doing so would lead to the solving of serious crime? Yes, of course, he would reply, this is not a game we are playing. People are actually hurting other people, and we must do whatever we can within the bounds of civilization to maintain peace and security.

Some have rebuked Fred for raising lies and deception to constitutional status. But never if there was a risk of generating an erroneous confession, fiend when you step back from the all too often and ratiocinations of Law Professor Land and the New York Times, for that matter, which is to be preferred, taking advantage of the thankfully often present weaknesses of those accused of serious crimes in a way that will not lead to wrongful convictions or freeing, without punishment, those who commit such acts? When discussing such a question, I can almost hear Fred say:

Yes, I am sure that it is bad thing to deceive anyone, but maybe some things are worse. Take Brewer v. Williams as an example. Pamela Powers was abducted in Des Moines, Iowa, by Robert Williams. A day or so later, Williams turned himself in to the police in Davenport, Iowa, approximately a three hour drive from Des Moines. As Williams was being driven by the police back to Des Moines, a snow storm started up. The police had some hopes that Pamela was still alive, and were fairly certain that she was somewhere between Des Moines and Davenport. In the hope of finding her before she died, one of the officers transporting Williams, knowing that he some peculiar religious beliefs, asked Williams to reflect...