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.
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 he is presumed to be innocent.'
The constitutional authority for the State to distinguish between criminal defendants by freeing those who supply bail pending trial and confining those who do not, furnishes no justification for any additional inequality of treatment beyond that which is inherent in the confinement itself. When a bailed defendant is suspected of another crime the police invite him to come to the police station. If he appears, a much more informal 'line-up', the so-called 'divisional line-up', is held. If he refuses to appear, the police can do nothing beyond intensifying their efforts to obtain sufficient evidence to constitute probable cause for his arrest on the new charge.
True the police assert that most such defendants voluntarily appear when asked to do so, out of an eagerness to remove the suspicion of guilt of another offense. But the comparison between those who are free on bail and those in prison for want of bail means nothing unless it is applied to those in each class who refuse to cooperate. The man who is at liberty may say no to the police; the man in prison for want of bail cannot.
The compulsory 'line-up' of the unbailed defendant thus amounts to a material distinction between those who enter bail and those -- equally presumed to be innocent -- who do not. It is, moreover, unrelated to the purpose for which an unbailed defendant is confined -- to insure his appearance at trial. Nor may a court disregard the practical effects of its judgment and ignore the common knowledge that the system of bail, based as it is on financial ability, is weighted heavily against the poor. This is especially true in the great urban areas where populations are highly mobile and family roots do not reach deep. The friend or relative who formerly tendered the security of a freeholder has been largely supplanted by the professional bondsman. He must be paid a premium in all cases, and he often requires cash or similar security before agreeing to guarantee the appearance at trial of a defendant who is personally unknown to him. The theoretical equality of the right to bail when all are not financially equal thus has become in reality a deep and wounding social inequality, increasingly oppressive to the poor and the vagrant.
It brings to mind Anatole France's ironic epigram that the law in its majestic impartiality forbids the rich and poor alike the sleep under bridges.
It is clear, therefore, that there is substantial merit in the plaintiffs' claim that their involuntary 'line-up' would constitute an invidious discrimination depriving them of the equal protection of the laws guaranteed by the Fourteenth Amendment. At this stage of the case a preliminary injunction should issue to preserve the status quo pending final hearing if otherwise the plaintiffs would suffer irreparable harm. Irreparable harm is clearly threatened, for the police have made it plain that they will promptly place the plaintiffs in a 'line-up', and the refusal of a preliminary injunction would render their case moot. I am not unmindful that a preliminary injunction would, for all practical purposes, put an end to police 'line-ups' until the final decision in this case. For the testimony makes it abundantly clear that the 'line-up' procedure cannot be conducted successfully on a voluntary basis; and this is confirmed by the insistence of the police that they will proceed with a 'line-up' of these non-consenting plaintiffs. The supposed inconvenience to the police in the detection of crime does not, however, justify the denial of a substantially meritorious claim of constitutional right pending trial. Moreover, a preliminary injunction will still leave available to the police opportunities for observation of suspects by complainants which are broader than in the case of those who are free on bail.
The view I have taken of the equal protection claim under the Fourteenth Amendment makes it unnecessary to consider the plaintiffs' other constitutional claims.
A preliminary injunction therefore will be entered. Plaintiffs may submit a form of decree on notice to defendants.