OP-ED: Systemic racism

Prosecutors are also guilty — the APS ‘cheating’ scandal is but one example

Nationwide, we are grappling with systemic racism and the unequal treatment of black and brown people in our justice system. With 2.3 million people locked up in the United States, disproportionately people of color, mass incarceration is one of the most pressing civil rights issues of our generation. Indeed, while the killing and shooting of Black Americans by police officers make the headlines, our jails and prisons are being filled with people of color, their sentencing and imprisonment fueled by the same racism that has Americans demonstrating across this country. In Atlanta, the cradle of the civil rights movement and a mecca of black leadership, the move to adopt progressive policies on criminal justice and civil rights lags far behind that in other major cities.

The Atlanta Public Schools (APS) “cheating” scandal is a textbook example of overcriminalization and prosecutorial discretion gone amok, compounded by an unjust sentence of first-time offenders to serve years in prison. It is a glaring illustration of a scorched-earth prosecutorial mindset that has sparked a movement of reform-minded prosecutors nationwide — one which has yet to be embraced in Atlanta.

More than a decade after cheating was first alleged, the ghost of this scandal continues to haunt Atlanta. Rightfully so. This case has always been about so much more than cheating. It is about an approach to prosecution out of step with national reformist trends, and the human toll of prosecutors who stubbornly refuse to acknowledge the harm they have done in the past. It is well past time for prosecutors to acknowledge this harm and put the case behind us.

The controversy surrounding the APS prosecution became a central issue in the recent district attorney election in Fulton County. During the campaign, many within the community expressed their disgust with the prison sentences imposed on the APS educators, demanding that this injustice be addressed. A group of lawyers (we, the two writers of this article, among them), activists, and grassroots and civil rights organizations pushed each of the three candidates — Paul Howard, Fani Willis, and Christian Wise Smith — to adopt a number of positions critical to moving beyond the punitive approach to prosecution that has come to define Fulton County. Among these demands was an acknowledgement that the APS prosecution was an unjust abuse of discretion, and a commitment to mitigate the harm to the educators.

Both Howard and Willis refused. Smith, however, opted for a truly progressive platform, which included the explicit condemnation of the APS prosecution and the promise to do what he could to mitigate the ensuing harm. This position certainly helped Smith garner roughly 40,000 votes in the general election, which represents a huge segment of voters who rejected everything the APS prosecution represents. In the wake of the runoff election between Howard and Willis, Smith approached those two candidates to embrace his platform. Among his requests was that each agree to address the injustice of the APS case. Willis refused. Howard agreed and took steps to demonstrate his commitment to undo this injustice. For this he faced harsh criticism from the media and from Willis, who accused him of acting solely for political gain.

Howard and Willis share responsibility for the APS prosecutions, but while Howard expressed a willingness to revisit the APS sentences in response to legitimate community concerns, Willis has shown no inclination to do so. Although belatedly, Howard agreed to allow convicted APS teachers whose cases are pending appeal to avoid prison in exchange for dismissal of their appeals. Facing criticism that this decision was nefarious and politically motivated, Howard expressed his commitment to fighting to ensure that no more teachers would go to prison, as Atlanta finally puts this episode behind it.

When prosecutors abuse their discretion, unjustly decimating lives in the process, there is never an inappropriate time to correct that injustice. Undoubtedly, it took pressure from voters to inspire Howard’s decision. He certainly may have been influenced by his motivation to win re-election, but that does not make his decision unjust or unethical. We live in a society where prosecutors and politicians own a laundry list of injustices which they have helped engineer. They should never be discouraged from taking steps to undo an injustice, even if that decision is politically motivated. For better or for worse, they are elected officials. Community members should remain encouraged to demand they act consistent with justice at all times.

Whether Paul Howard keeps his assurance in his final months in office that he will push to put this case behind us will answer the question of whether his commitment to mitigating the harm caused by the APS prosecution was, as his critics warned, an unprincipled effort to garner votes during a heated election campaign. Should he fail to act now, it will appear that his critics accurately characterized his pre-election position as disingenuous. We hope that is not the case. We hope that Howard will stand by his pledge to correct the injustice of the APS sentences, and that he will be supported in this effort by Judge Baxter and Willis.

It was in 2013 that the Fulton County District Attorney’s office, under the leadership of Howard, charged 35 APS educators with violating the Racketeer Influenced and Corrupt Organizations Act (RICO), after evidence emerged that several educators corrected student answers on the Criterion-Referenced Competency Tests (CRCT). The alleged motive was to improve student scores to qualify for school funding under federal legislation passed in 2002 known as the No Child Left Behind Act.

Howard’s decision garnered national attention. While such cheating happens in school systems across the country, to bring criminal charges against teachers for it is extremely rare. In Atlanta, as in jurisdictions nationwide, cheating has always been understood to be a violation of policy, rather than a crime. Such actions were meant to be addressed through administrative proceedings before the Professional Standards Commission, not prosecuted in court. Not only did Howard seek to legally go after those named in the APS cheating scandal, but, even more shocking, he decided to prosecute educators using Georgia’s RICO statute, based on the federal law enacted in 1970 meant to prosecute members of the Mafia and other organized crime syndicates.

What accounts for this decision? The powerful documentary One Child Left Behind makes the credible case that Republican governor Sonny Perdue sought the state takeover of APS, and saw the cheating as an opportunity to wrest control from then-Superintendent Beverly Hall. Hall had improved test scores in APS schools, a feat some did not believe could be accomplished legitimately. The APS cheating investigation was conducted by the Georgia Bureau of Investigation (GBI) and special investigators selected and appointed by the governor’s office. But, alleging cheating by individual teachers would not be enough. A theory that connected Hall to criminal behavior would be necessary.

In order to criminalize this behavior, the educators were ultimately charged with relatively minor offenses — false statements, false swearing and writing, theft by taking, and influencing witnesses — based on allegations that they were not forthcoming during, or that they interfered with, the investigation. These allegations were then used as a basis to craft a theory that painted these educators as co-conspirators in a “racketeering” scheme. However, racketeering requires a criminal enterprise. So, in an unprecedented move, prosecutors dubbed APS the criminal enterprise to which these teachers all belonged. This novel, and incredibly expensive, approach to this prosecution transformed normally noncriminal transgressions into the longest trial in Georgia’s history.

RICO was used as a tool to pressure most of the educators to throw in the towel. With years of prison now hanging over their heads, and an understanding that they could never match what the state was willing to invest financially to defend themselves, most of those charged pled guilty in exchange for lenient sentences that involved no prison time. Twelve maintained their innocence and went to trial. Two of the educators served prison sentences and remain on parole, still suffering many years after this case began. Seven teachers continue to live with the threat of prison as they challenge the fairness of their trial and the legality of their convictions. All but one of the 35 educators indicted were black. Beverly Hall, who maintained her innocence, was too ill to see her day in court. She died of cancer shortly after the trial began.

Howard’s decision to use a RICO theory of liability to address cheating was akin to bringing a machine gun to a fistfight. RICO is widely regarded by criminal law experts as a theory of liability that threatens to ensnare guilty and innocent alike, and for its use as a prosecutorial bargaining tool to induce guilty pleas. When some educators insisted on having their day in court, prosecutors engineered an eight-month trial and sought lengthy prison sentences. The message was clear: Refusal to acquiesce to the will of the government warrants incarceration.

Judge Jerry Baxter of Fulton County Superior Court presided over the APS trial. The prosecution was led by Fani Willis, deputy district attorney, who was recently elected to become the next Fulton County district attorney, defeating Howard, a six-time incumbent. Due to her role in the prosecution of the APS educators, and her long term of service as a deputy under Howard, many fear that her role in the APS prosecution serves as a bellwether for what to expect from Willis’ administration — and not as an indicator of the much-needed progressive move forward on criminal justice and civil rights policies that we are now seeing in the rest of this country.

In One Child Left Behind, Willis claims that the APS case is the “worst case of black-on-black crime she has ever seen.” It is hard to imagine that Willis actually believes that. It is more likely an example of an unwillingness on her part to acknowledge her role in engineering a grave injustice, and a dishonest attempt to justify her actions by demonizing those who were most harmed by the prosecution’s abuse of its discretion.

Together, Howard and Willis orchestrated this prosecution. Eleven of the 12 educators who maintained their right to trial were convicted of RICO, while one educator was acquitted on all counts. However, of the 11 educators that were convicted, several were acquitted of all substantive charges upon which the broad conspiracy count was based, while inexplicably being only convicted of the overarching RICO charge. The charged APS educators forfeited their careers and lost their livelihoods. Many spent their life savings to preserve their right to a trial. The two who went to prison suffered terribly while locked away. For the other seven, while their cases are pending appeal, they must cope with the ever-present fear of incarceration.

After their convictions, Howard insisted that the 11 educators that were convicted admit guilt or go to prison. Despite not being a flight risk or danger to the community, they were sent to jail for 14 days pending their sentencing, presumably a final attempt to pressure them to admit guilt and justify their costly prosecution.

When they returned to court, Judge Baxter further hinted that the one way for these educators to avoid further incarceration was to concede to Howard’s demands. From the bench, Baxter said:


“I spent a lot of time since this verdict came in thinking about an appropriate sentence, and I think it probably would be appropriate, and it would mean going to jail. Not a lengthy, lengthy time, but going to jail …. And, you know I just see all the pain in this room. It is a tragedy for all of you. The defendants, your families. And you have been … punished a good bit so far, I mean, just based on what’s happening to your lives ever since this started going. And, you know, I thought I had a fair sentence. It’s not what Mr. Howard has, I think, informally worked out. But, anyway, somehow this morning it just came to me, you know, the only reason that I would send you to jail is for retribution …. And I just think the best thing for our community and this whole sordid mess is for Paul Howard to talk to each of you, and we enter … pleas, and we’ll all go on about our business and pray for these kids that got cheated.”

Howard then admonished the educators, “I believe that people who accept responsibility, that their sentences ought to be different from people who don’t.” This can only be viewed as attempt to pressure the 11 educators who were still maintaining their innocence into admitting guilt, despite having exercised their constitutional right to have a trial. Two ultimately acquiesced and avoided prison time. For the remaining nine, Howard convinced Judge Baxter to impose prison sentences.

These educators were never considered a danger to society as evidenced by their release back into the community pending and throughout trial where they continued living their lives as spouses, parents, and grandparents. As Judge Baxter acknowledged, the only reason to send them to prison was for retribution. But the retribution was not for the crimes for which they were convicted. It was for the accused having the audacity to maintain their innocence.

Indeed, Fani Willis has subsequently admitted that had these educators agreed to say they were guilty before trial, pre-trial diversion (such as community service) would have been appropriate. Everyone understood prison was never the appropriate resolution for these teachers. It was clearly used to try to pressure them to abandon their right to trial and appeal. This tactic ignored the possibility that they may be innocent.

The Sixth Amendment of the U.S. Constitution guarantees the right to a trial. This right is violated when an accused is punished with an excessive sentence for exercising it. Ultimately, the educators did what the Constitution entitled every citizen to do, only to be punished with significant prison sentences that are more fitting of defendants who are found guilty of violent or repeated offenses than of first-time, nonviolent offenders. Because these educators maintained their innocence, they were punished with stiff prison sentences, along with probationary periods to follow, in addition to community service and hefty fines. For the charged APS educators who gave up everything to have their day in court, the lengthy prison sentences represented cruel and unjust overkill.

It is not surprising that the Fulton County district attorney’s office has led the state in criminal prosecutions and incarcerations under the leadership of Howard and Willis, whose past practices, as exemplified by the APS case, have long been out of step with current trends throughout the country. Neither are examples of progressive prosecutors that balance the need for public safety with the community’s need for reducing the prison population and minimizing the multitude of harms caused by overcriminalization.

In Atlanta and elsewhere, there is growing and widespread recognition that overzealous, conviction-minded prosecutors have fueled mass incarceration and contributed to the failures of the criminal justice system by over-charging, over-prosecuting, and over-punishing. At a time when the nation is confronting the abuses of a racist and oppressive criminal justice system, we hope that Atlanta will reclaim its status as a beacon of civil rights and join the ranks of other major cities moving towards progressive criminal justice reform. It should start by addressing the injustice of the APS prosecution and sentences.

Jon Rapping. Photo credit: Julie Yarbrough
Jonathan Rapping is the director of the Criminal Justice Certificate Program at Atlanta’s John Marshall Law School, and the author of Gideon’s Promise: A Public Defender Movement to Transform Criminal Justice.


Sam Starks. Photo credit: Courtesy of the Cochran Firm
Sam Starks is a former public defender and criminal defense attorney and currently a senior attorney with the Cochran Firm Atlanta, where his practice includes representing victims of police brutality.