Butler v. Crumlish

• Decision Date: 19 May 1964
• Docket Number: Civ. A. No. 35337.
• Citation: 229 F. Supp. 565
• Parties: William BUTLER and Russell Smith v. James C. CRUMLISH, Jr., Howard Leary and William Lennox.
• Court: U.S. District Court — Eastern District of Pennsylvania

229 F. Supp. 565

William BUTLER and Russell Smith v. James C. CRUMLISH, Jr., Howard Leary and William Lennox.

Civ. A. No. 35337.

United States District Court E. D. Pennsylvania.

May 19, 1964.

Herman I. Pollock, Bernard L. Segal, Philadelphia, Pa., Vincent J. Ziccardi, of Defender Assn. of Philadelphia, Philadelphia, Pa., for plaintiffs.

Matthew W. Bullock, Jr., Deputy City Sol., for defendants.

Charles J. Bogdanoff, Asst. Dist. Atty., for defendant Crumlish.

FREEDMAN, District Judge.

Plaintiffs were arrested on a number of charges, including rape, and are in custody in the Philadelphia Detention Center for want of bail. The police have ordered them brought into a so-called "line-up" or "stand-up"¹ at the Detention Center² for possible identification by victims of similar crimes. Plaintiffs have brought this suit under the Civil Rights Acts (42 U.S.C. § 1983; 28 U.S.C. § 1343) to enjoin the police from placing them in a "line-up", on the claim of infringement of their constitutional rights.

The matter is before me on the plaintiffs' application for a preliminary injunction.

It is the necessity of assuring their appearance at trial which unfortunately requires criminal defendants, who are presumed to be innocent, to be confined in prison while awaiting trial. This hardship has been alleviated by the practice of permitting the release of prisoners who give assurance of their appearance by the entry of bail. "This traditional right to freedom before conviction", the Supreme Court of the United States has said, "permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. * * * Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning." Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 3, 96 L.Ed. 3 (1951).³ The privilege of bail is recognized in both the Federal and Pennsylvania Constitutions, which specifically provide that "excessive bail shall not be required * * *".⁴ The Pennsylvania Constitution further specifies: "All prisoners shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or presumption great * * *".⁵

The differences that necessarily result from imprisonment while awaiting trial and freedom on bail cannot be made the foundation for any constitutional objection because of discrimination, for the distinction itself is constitutionally recognized. The prison authorities therefore may subject a criminal defendant who is imprisoned for want of bail to all those restraints which are an essential part of the management of a prison. Thus, pending trial, such a defendant may be imprisoned in a cell and must submit to the routine of the prison relating to his meals, his exercise and the many other activities of daily life. All these matters, however, are incidental elements in the organized caretaking of the general company of prisoners.

A new question is presented when those who have custody of a defendant awaiting trial seek to make him available for identification by victims of other crimes. Plaintiffs' counsel concede that the prison authorities could have a prisoner viewed while he is in his cell, just as a defendant who is free on bail may be observed as he enters or leaves his home or place of employment. The prison authorities obviously could arrange to have the prisoners observed as they exercise in the prison yard. A "line-up", however, is something of a different nature. The suspect is asked to speak and to walk about or a platform so that his voice and bearing as well as his appearance may be made known to the complainants. He is required to appear with other suspects, although the police insist that this is done in order to minimize the risk of mistaken identification. He is subjected to the glare of bright lights which blind him from seeing the complainants, although they may see him.

All this goes beyond mere observation. It makes the prisoner not simply an object of custodial care by the prison authorities, but rather an active participant in police investigation, a role which a free man is not required to assume. The confinement of the unbailed defendant while awaiting trial is a necessary retraint on his liberty, but it confers no authority on the police to take him into their dominion to investigate other possible offenses. The police are not the managers of the prison, and the circumstance that a number of defendants are confined in one place adds nothing to their authority over them. The rights of unconvicted criminal defendants were reviewed almost half a century ago by the late Judge Finletter in Commonwealth v. Brines.⁶ There the District Attorney of Philadelphia had applied for an order to bring a prisoner accused of murder from the county jail to the District Attorney's office so as to afford an opportunity for his identification on the very charge for which he was confined. Judge Finletter denied the application in words which bear repetition:

"By the terms of the commitment, he is to remain in the county prison to answer the charge of murder, not to answer the call of any and every person, official or other, who may wish to meet him or speak to him. * * *

"It seems to be forgotten that an accused is not a convict, and that it is only strong necessity that compels his detention before trial. It is a restraint of the liberty of his person which is unavoidable. It certainly should not be aggravated by the infliction of any unnecessary indignity.

"An accused, but unconvicted, prisoner is not to be bundled about the county at the beck and call of every policeman or prosecutor who may wish to see him. If he were at liberty, the District Attorney could no more `send for' him to call at his office than he could `send for' any other citizen, or than the latter could send for the District Attorney. His rights are not different because he is accused of a crime. He has not been convicted and h...