I have been following, quietly, the prosecution (persecution?) of the Atlanta educators in the testing scandal. To find out more about the legal perspective, I asked my childhood friend Joseph Allen to guest blog. Joseph is a successful attorney, and (from what I remember from high school), one of the most intelligent people I know. Below are his comments. My heart and thoughts go out to the Atlanta educators, students, and families. I do not condone their actions, but by no means do I feel that they are receiving fair treatment.
The Atlanta Public Schools teachers and administrators convicted April 1 of racketeering and other charges related to systemic cheating on standardized tests are set to be sentenced today. The prosecution of these educators is perfectly legal, but is nevertheless a grave miscarriage of justice. This case represents the dangers of political influence over prosecutorial decision-making, the demonization of our heroic teachers who each day face the overwhelming pressure to improve test scores, and the inarguable disparity in treatment between these educators and other offenders. Absolutely, these teachers should have faced some sort of discipline. But in my view, this criminal case should never have been brought- it is a waste of taxpayer money that could have been spent elsewhere (for instance, on education). Here I share a few brief thoughts on the case:
Originally crafted to go after organized crime organizations such as the Mafia, RICO statutes are deliberately broadly written to cast a wide net. On their face, these laws can be applied to many different kinds of misconduct, as long as there is some sort of conspiracy (agreement) among individuals to break a law. If one assumes that the jury was presented with sufficient credible evidence that the Atlanta educators conspired to change test scores in order to achieve bonuses (ranging up to a few thousand dollars), convictions under RICO are facially plausible.
The flip side of this broadness is the vast amount of discretion and leverage RICO laws give the prosecution. Because virtually any “conspiracy,” no matter how isolated or harmless it is, can be prosecuted under RICO, prosecutors can decide when and where to apply it to defendants. In this case, the prosecutors stretched the meaning and intent of RICO past its limit. The laws were intended to go after difficult-to-convict gangsters, actual violent career criminals who hid behind their organization to obfuscate their involvement in particular crimes, NOT embattled teachers changing test scores. This is a case of a legitimate tool being used for illegitimate, possibly political, reasons.
Denial of Bond
Judge Jerry Baxter of Fulton County Superior Court ordered 11 of the 12 convicted educators to be held in jail without bond pending their sentencing. This may be the most strikingly unfair aspect of this case to date. White-collar offenders are almost always granted bond pending sentencing, along with conditions such as surrendering their passports. This is true even if they had been convicted of defrauding victims of millions of dollars. Violent, repeat criminals are also often granted bond. Given the Atlanta educators’ lack of criminal history, ties to the community, unlikelihood of them reoffending, and non-seriousness of the offenses, there is simply no way that the judge actually decided that they were a flight risk.
Judge Baxter’s decision to put the Atlanta educators in jail pending sentencing has a couple possible explanations. First, he might not intend to sentence them to confinement, and used the approximately two weeks in jail as a pseudo-sentence in place of a jail or prison term. Two, he is truly interested in severely punishing the educators, and is going out of his way to send a message. I hope the former is true, as any jail or prison term would be wholly inappropriate in this case.
The entire prosecution of the Atlanta educators, and the treatment by Judge Baxter, stands in vivid contrast to the lack of attention the criminal justice system pays to much more nefarious white-collar criminals, notably bankers and financial industry criminals. Much has been written about the lack of prosecutions of those responsible for the 2008 financial crisis. As noted above, RICO cases are easy to prove, and prosecutors could go after these offenders with the same zeal they did the Atlanta teachers.
Many times, banks and other financial firms avoid prosecution by paying a fine. This is frequently justified by prosecutors on the basis that those organizations are too big to fail, and a prosecution of individuals in the firms (or the firm itself) would cause damage to the economy as a whole. I would suggest that our schools are also too important to fail, and if prosecution of bankers shouldn’t be done, prosecution of teachers should likewise be avoided.
Judge Baxter has almost unfettered discretion to sentence the educators, from probation up to prison for 20 years. Hopefully he takes into account the normal sentencing mitigation factors, such as lack of criminal record, good character, etc. But hopefully the defense attorneys also present evidence during sentencing relating to the crushing pressure the Atlanta educators are under to improve test scores at any cost. It is not unreasonable to say they were coerced (under threat of firing or demotion) into unsavory actions. This is not a defense to the charges, but can and should be taken into account by Judge Baxter.
About the Author
Joseph D. Allen is an attorney in private practice in Baltimore, MD. He is unrelated to this blogger, except that they shared an excellent public school experience.