Eleven former educators in the Atlanta Public School District were convicted of racketeering today, a charge with a maximum penalty of 20 years in prison. The criminal enterprise that earned them this hard time? Fudging test scores to earn bonuses, or perhaps simply keep their jobs. It sounds like an April Fool’s joke (you know, if your sense of humor sucks), but it is not.
The charges were brought under Georgia’s edition of the Racketeer Influenced and Corrupt Organizations statute, more commonly known as “RICO.” RICO was passed in 1970 as a tool for going after mafia leadership, whose actions were often insulated behind many layers of foot soldiers (“button men,” as they say). It allows prosecutors to “stitch together crimes going back many years, from extortion and loan sharking to murder, in a single case.”
But why apply RICO here? Excerpts from the indictment make it clear that the DA hoped to take down the top leadership of the Atlanta Public Schools, Beverly Hall (named Superintendent of the Year in 2009, the year before controversy began to swirl). But despite reports of a sink-or-swim culture that put pressure on educators to fake testing success, but Hall was not tried because she was being treated for breast cancer at the time; she died on March 2nd. (Based on the charges for which she was indicted, she could’ve gotten up to 45 years in prison.)
I don’t really understand the vindictive attitude toward Hall who, after all, was put in a position to compete with other states for vital federal education funding thanks to testing-heavy federal education initiatives No Child Left Behind and Race to the Top. In fact, the allegation from the indictment that “[t]he refusal of Beverly Hall and her top administrators to accept anything other than satisfying targets created an environment where achieving the desired end result was more important than the students’ education” seems perfectly aligned with the expectations that federal programs have promoted. And the more ambiguous accusation that she created a “culture of fear” sounds to me many workplaces with tough bosses (anyone ever see The Apprentice?).
But the RICO convictions of teachers and administrators are even more concerning. Here’s how this happens:
- The government decides to investigate. And in this case, that’s a big decision: they’ve been working on this case for four years, and its scope is unprecedented for a cheating scandal. Two governors decided to pursue it aggressively. This worries me when the people they’re going after (or at least Hall and all the 11 people who were convicted today) are Black, and working in low-income neighborhoods.
- The district attorney decides to bring charges, decides who to charge, and decides which charges to bring. No one – not the governor, not judges, not defense attorneys, and certainly not defendants – has the right to question any of these decisions. In this case, the DA decided to bring RICO charges, as well as a variety of others.
- The DA also decides what kind of plea bargain to offer, and to whom. Defendants who are willing to testify against others are frequently offered generous plea deals; in this case 21 of the 35 indicted agreed to deals and received only probation.
“But wait,” you’re probably thinking, “probation?!?! But the 21 who plead guilty cheated, too! I thought we cared a lot about the cheating!”
You’re right. It’s screwed up. No matter how much you don’t want to plead guilty as a defendant, when the prosecutor says “plead and turn state’s witness to get probation or force a trial and roll the dice on 20 years,” it’s actually surprising that only 21/35 took the deal. And that’s no accident. Prosecutors lobby for more crimes on the books and longer sentences for precisely this reason. And when the government says something like “if you don’t plead guilty I’m going to throw the book at you,” and then you don’t plead guilty, guess what happens?
The Supreme Court is well aware that prosecutors use the prospect of extremely long sentences to pressure defendants into pleading guilty, and that sentences received at trial (a rarity, these days) are much higher than those doled out for the same crime when the defendant pleads guilty. Although this hardly meshes well with our sense of proportionality or equality under the law, there’s a vague notion tossed around that (a) saving the time/cost/energy of a trial, or (b) turning state’s witness mitigates the culpability of the underlying offense.
It’s not yet clear what the sentences will be for those 11 defendants who were found guilty of racketeering, but comparing anything in the neighborhood of 20 years with probation doesn’t comport well with my sense of justice.