Caleb Was Right: Pretrial Decisions Determine Mostly Everything

Abstract

Caleb Foote taught his students many things, and he taught them well. His criminal procedure class was basically a political science course. He looked at the questions of whether and how to apply the criminal sanction from the viewpoint of interest-group politics; he was primarily concerned that everyone should understand that the Constitution was designed to protect unpopular minorities (in the Madisonian sense) from being crushed. To him, examples of unpopular minorities were vagrants (today called "the homeless"), poor people, people of color, political dissidents but most comprehensively, those finding themselves on the receiving end of the nasty business of criminal prosecution. Perhaps he was so concerned and committed to social justice for people accused of crimes because he himself had been the object of prosecution as a conscientious objector. Perhaps his passion came from his Quaker ideals. Perhaps he was just contrarian by nature. Whatever its source, Caleb's verve in analyzing how the criminal justice system was used to control unpopular people led to a focus on the earliest stages of prosecution because, as he once told me, "That's where the greatest number of people get thwacked." I suppose he was really thinking of a different verb, but he was polite, and I liked the comic-book sound of it. As one of the teaching assistants for his undergraduate course in criminal law and procedure, I had to lead the small seminar groups that discussed the concepts Caleb had presented in the class's large lectures. The clever undergraduates were convinced that problems of crime and justice could be solved if the police could arrest a lot of people but good judges would later sort out any problems. "No," Caleb directed his teaching assistants, "tell them that the problem is arrests themselves in other words, overcriminalization. Tell them that at the lower levels of crime seriousness, judges don't really care much about guilt or innocence, but about taking a swipe at these jerks who are committing anti-social acts-if not the act actually charged, then some other act recorded in a lengthy rap sheet and moving the caseload