The Atlanta Cheating “Scandal” is also a Legal Scandal

An Atlanta jury has spoken and 11 former employees of the Atlanta school system are headed for prison after it was found that they had engaged in changing standardized test scores in order to give the false impression that Atlanta city schoolchildren were doing better, academically speaking, than was the case. The headlines from around the country almost are identical: “Former Atlanta Educators Convicted in Cheating Scandal.”

According to the New York Times:

In 2009, The Atlanta Journal-Constitution started publishing a series of articles that sowed suspicion about the veracity of the test scores, and Gov. Sonny Perdue ultimately ordered an investigation. Amazon Prime (One Year... Check Amazon for Pricing.

The inquiry, which was completed in 2011, led to findings that were startling and unsparing: Investigators concluded that cheating had occurred in at least 44 schools and that the district had been troubled by “organized and systemic misconduct.” Nearly 180 employees, including 38 principals, were accused of wrongdoing as part of an effort to inflate test scores and misrepresent the achievement of Atlanta’s students and schools.

In one perspective, perhaps we should cheer the prosecution of people who falsify data (as long as they are not “climate scientists” protected by Algorean politicians) and I doubt there will be any shortfall of condemnation coming from all quarters, from Right to Left. We can argue about the current emphasis upon standardized testing and how it is used in both government and private schools, and I am going to let other people do the arguing. Instead, I wish to look at the actual charges themselves and comment on what the prosecutors did to get the results they wanted.

The first point I need to make is that none of the people charged were convicted of cheating. In fact, they were not even convicted of breaking any state statutes, at least statutes that applied directly to the actions they were alleged to have done. To be blunt, they were not convicted of falsifying test results or engaging in actions that illegally changed test results.

Instead, they were convicted of racketeering under the Georgia Racketeering and Corrupt Organizations Act (RICO), which is modeled after the federal RICO statutes, and all RICO “crimes” are fictitious. To put it another way, none of the 11 defendants in Atlanta found guilty were convicted of anything they actually did.

No one will read anything like what I just have written in any newspaper or in any news story, as I am sure that journalists will fall into lock-step when writing about how the heroic District Attorney for Fulton County, Paul Howard, pursued justice against “educators” who dared to give false information regarding performances of Atlanta public school students. What the press won’t say is that Howard used what only can be called a legal abomination to get the convictions.

First, what is RICO and why do I write about it in such terms of condemnation? In 2004, Candice E. Jackson and I published a paper on the federal RICO in The Independent Review in which we called for its repeal. We wrote:

…the “crimes” under the RICO statute are essentially fictitious, created to enable federal authorities to avoid the state courts in which accused “mobsters” traditionally had been prosecuted. Because reputed “mob” figures were being acquitted in state courts—often in the face of overwhelming evidence of guilt—the government created a new set of “derivative crimes,” a class of offenses that by definition are derived from other criminal acts.

The original RICO law that came from Richard Nixon’s first term as president was aimed at organized crime, or what commonly was called the mafia. Alleged mobsters were being tried – and acquitted – in state courts on charges such as murder and extortion, as juries refused to convict them, even when it seemed that evidence against the defendants overwhelmingly pointed to their guilt. However, the framers of RICO found a way to bring defendants into federal criminal courts despite the fact that the alleged misdeeds violated only state criminal statutes.

Jackson and I further write:

Under RICO, individuals who engage in what prosecutors allege to be extortion, illegal gambling operations, and the like are not charged with those specific crimes, but rather are accused of racketeering, which is a derivative catch-all term. Because RICO cases are tried in federal courts, U.S. attorneys do not have to prove to juries and judges that the accused engaged in the aforementioned crimes (which as a rule are violations of state criminal law); they must show only that it appears the defendants carried on those activities. Moreover, for a RICO conviction, the prosecutor must meet only the civil standard of “preponderance of the evidence,” not the higher standard of “guilt beyond a reasonable doubt” that historically has been required for criminal conviction.

Please note that “guilty beyond a reasonable doubt” is the official requirement for conviction under RICO, but that prosecutors do not have to prove “beyond a reasonable doubt” for the offenses that make up the “bundle” of actions rolled into the RICO charge. Thus, we really are looking at a de facto burden of “preponderance of the evidence” standard for criminal law. “Racketeering” itself is not a real action; it only is a “derivative” of other actions that the defendant allegedly conducted, which is why Jackson and I say that RICO “crimes” actually are fiction.

In the first few years after RICO was passed in 1970, federal prosecutors applied it only against actually “organized crime” figures. However, by 1980, U.S. attorneys realized that the language of the law enabled them to go after just about anyone, as it was easy to roll a number of alleged petty offenses into a draconian RICO charge that carried up to 20 years in prison. Thus, RICO became a tool used to dragoon people into pleading guilty, since it is not difficult to gain RICO convictions because the legal standards for convictions were very low.

The first prosecutor to really jump on the RICO bandwagon was Rudy Giuliani, who used the statute extensively to go after Wall Street figures such as Michael Milken, the financial entrepreneur who underwrote billions of dollars of low-grade, high-yield bonds to finance companies such as MCI and McCaw Cellular when traditional Wall Street sources of finance were unavailable to them. Milken became very wealthy, but, as Murray N. Rothbard has noted, he ran afoul of what Rothbard called the “old guard.”

Even though Milken had excellent lawyers, the RICO statute was so malleable that there was no way he could effectively defend himself, especially when Giuliani was able to break federal laws with impunity while going after Milken. Self-righteous journalistic outfits, from the New York Times to the Washington Post and other broadcast outlets, were the repositories of illegally-leaked information that Giuliani and his lieutenants regularly supplied to friendly journalists. That these entities – while prattling on about the need for Milken to “obey the law” – were enabling the commission of felonies seemed to be lost on everyone during the frenzy.

Of course, with federal prosecutors being able to look like supermen with all of their RICO convictions, state prosecutors hated missing out on the fun, so many of them convinced state legislatures to write similar RICO laws that prosecutors could use as hammers to pound the accused into guilty pleas. Howard took advantage of Georgia’s law to lay it on the accused school employees in Atlanta.

I have no doubt that many of the accused actually took part in falsifying exam results, and I suppose that some of them received bonuses for higher test scores while others, such as school principals, were able to look good, at least for a while. Furthermore, I suspect that there are actual Georgia statutes that deal with the actions taken in falsifying results and reporting them and I would have preferred that the defendants face charges based on those laws, not RICO.

Why do I say this? There is no way that anyone should be convicted on what are fictitious charges. The RICO statutes are legal shortcuts that exist not to protect people but rather to provide easier ways for prosecutors to collect more scalps. Jackson and I write:

Although the RICO Act adds nothing of value in terms of new prohibitions of truly criminal behavior, it adds powerful weapons to the prosecutors’ arsenal. Our criticism extends far beyond lodging a complaint that RICO is duplicative of other criminal prohibitions and unfair in its broad scope and discretionary application by prosecutors. RICO represents the worst the criminal justice system has to offer any citizen: the arbitrary wielding of the government’s awesome power to impose criminal sanctions. This outrageous law should be repealed at once.

To the critics who will claim I am defending acts of cheating and falsification, I answer that the accusations are nonsense. If these educators did the acts prosecutor allege they did, then let the prosecutors have to prove beyond a reasonable doubt that the accused committed such crimes instead of having to depend upon a law that makes every defendant a shooting duck.

Unfortunately, we are in an age in which due process of law no longer matters. People want results, period, and if the ancient Rights of the Accused that this country inherited from Great Britain must be trampled, so be it. Ironically, the Atlanta defendants were being accused of altering test scores to produce fictitious results in order to convince a demanding public that Atlanta schools were progressing, and they were roundly condemned.

However, prosecutors pretty much did the same thing in obtaining their convictions (and numerous guilty pleas from others who were charged). They used a law that never should have been passed in order to convict people of fictitious “crimes” in order to get the results to placate a demanding public. So, both groups apparently took shortcuts, but the difference is that Howard and his lieutenants will get to sleep in their own beds tonight.