by Scott Lemieux via TheWeek.com
During a sentencing hearing on Tuesday, Fulton County Superior Court Judge Jerry Baxter announced that the crime under consideration was “the sickest thing that’s ever happened in this town.” Given that Atlanta, the town in question, has seen crimes including racist and anti-semitic lynchings, the serial murder of children, and a terrorist bombing at the Olympics, the bar is rather high. So what was the particularly heinous and perverse crime that had been committed?
School administrators and teachers fudged the results of standardized tests.
It seems safe to say that Judge Baxter lost his perspective. And the prosecutors who brought racketeering charges against the educators did, too. As a result, eight teachers and administrators were given jail sentences of at least a year. Three administrators were given 21-year sentences with seven served in prison, far more than the one to three years that prosecutors were seeking.
This result is a classic example of how excessive sentences and abuse of prosecutorial discretion have resulted in what amounts to a mass incarceration disaster in the U.S.
To say that the racketeering charges are breaking a butterfly on a wheel is not to condone the actions of these teachers and administrators. Whatever one thinks about high-stakes standardized tests, they had a professional duty to administer them with integrity, and their actions are fireable offenses. But their behavior does not justify prosecution under statutes intended to be used against organized crime.
My view that the loss of livelihood was sufficient punishment is far from idiosyncratic. As Dana Goldstein has demonstrated in an essential piece for The Marshall Project, it is extraordinarily unusual for criminal charges of anything like this severity to be brought in such cases, even though “adult tampering with student testing is depressingly widespread.” To provide some context, non-token jail terms have generally been reserved for teachers who are sexual predators.
The legal context of the testing should also serve to mitigate the offense. In theory, standardized testing can be a useful tool in evaluating teachers and schools, but the regime established by the No Child Left Behind Act does not use it well. The statute sets up very rigid standards derived from single high-stakes tests. The unrealistic performance targets ensure that even competent teachers run the risk of being branded failures and getting sacked, while decent schools are in danger of being declared failures and closed.
Given the structure created by NCLB, widespread cheating by desperate educators was inevitable. That doesn’t excuse their actions, but it’s also a factor that should be taken into account when determining whether a group of educators should be singled out for extraordinary punishment.
One potential defense of the prosecutors and the judge in this case is that the teachers and administrators who are being sent to prison have only themselves to blame, since they refused to cop a plea. The educators who did so were given parole, and before sentencing Judge Baxter urged convicted defendants to take a deal that would have involved shorter sentences served only on weekends. “We didn’t start out with the goal of putting educators in jail,” asserted District Attorney Paul Howard.
This is still a lousy justification for the state’s behavior, one that reveals another major problem with the American criminal justice system. Prosecutors with almost unlimited discretion can use threats of absurdly disproportionate maximum sentences to essentially punish the accused for exercising their rights to a fair trial. The defendants may have been unwise not to take a deal (and waive their right to appeal) before sentencing, but if Judge Baxter thought the terms of the deal were fair, nothing was stopping him from imposing that sentence himself.
People should be punished for their actions, not for refusing to take pleas. And the effect of this justice through plea bargain is for people who commit similar offenses to be given different punishments for wholly arbitrary reasons.
Admittedly, I would have less sympathy for guilty defendants who refused to take deals if the underlying offenses were, say, serious violent crimes the state had no choice but to prosecute. But this simply was not one of those cases. Getting the criminal law involved was unnecessary and served no legitimate purpose.
At both the federal and state level, American government tries to solve too many problems with the criminal law. In this case, the appropriate sanction for professional misconduct should be a loss of job (or perhaps a suspension or other employment-related remedy). The prosecutors were right the first time: None of these people belong in jail.