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Two former judges on convicted APS educators: Jail neither mandated nor appropriate

Thelma Wyatt Cummings Moore is a retired Fulton County Superior Court judge. Bettieanne Hart is a former Fulton County deputy district attorney and a former Superior Court judge in Augusta. Hart was on the legal team representing former APS Superintendent Beverly Hall who died before going on trial.

In this joint essay, the pair call for alternatives to jail time for the convicted Atlanta educators. At a rally Tuesday, hundreds of people in a Southeast Atlanta church voiced the same sentiment.

The AJC reported from the rally:

"I don’t know about you, but it was the handcuffs,” Atlanta City Councilman C.T. Martin said, conjuring up the sound of the metal cuffs being shut around the wrists of the just-convicted educators after a jury announced its verdict. Six men and six women convicted 11 of the 12 on trial and acquitted one, retired special education teacher Dessa Curb.

Shock has been one response to images of handcuffed teachers being taken to jail. Another has been outrage at the cheating and the damage to children who were promoted because of inflated test scores even though they could not do the work.

Here is the view of the two former judges.

By Thelma Wyatt Cummings Moore and Bettieanne Hart

Superior Court judges and district attorneys are vested by our Constitution with awesome decision-making authority and power. A judge’s power to sentence is constrained only by the dictates of the law that is violated.

In most sentences, there are options, including probation, intensive probation, community service, fines and, of course, confinement. Presentence reports are done to provide the judge with a sense of the person — prior offenses, character, community attachment, family support, age, education, other penalties resulting from their crime, and predictors of the defendant reoffending, all factors normally taken into consideration.

Recently, there has been a trend to limit the judge’s discretion in sentencing in the most egregious crimes which are perceived as threatening community safety — recidivist drug offenses, sex offenders, etc. which require mandatory sentences; but recently on the national front and in Georgia, policy makers have begun to question the wisdom of such mandatory sentences in light of the abuses which can occur if the judge is not allowed to consider the individual person and circumstances.

In fact, alternative sentencing has been studied and implemented in Georgia in light of the tremendous fiscal and human prices paid by society for imprisoning non-violent defendants.

In the Atlanta cheating trial, the 11 defendants have been convicted of charges the DA exercised his awesome discretion in bringing under the Georgia Racketeering Influenced Corrupt Organizations Act, as well as other felonies, punishable by more than one year and in the case of racketeering, up to 20 years.

There will be continuing debates on the wisdom of the district attorney’s charging decision. Contrary to public pronouncements from the bench, Superior Court Judge Jerry Baxter’s oath makes it his responsibility to sentence based on the facts of the case, the presentence reports on the defendants, and their perceived threat to community safety.

The right to a trial by jury is inviolate under our Constitution. While the plea bargaining process has become commonplace in our courts as a prosecutorial tool to expedite the case processing procedure, and handle the tremendous criminal caseload, it is neither mentioned in the Constitution nor mandated by state law.

To impose a more punitive sentence because the educators put their faith in the jury system and asserted their constitutional right to jury trial would be an enormous abuse of the broad discretion placed in the judiciary. While it is the judge who has the ultimate decision-making authority, the district attorney, the state’s prosecutor, holds the power to shape the process.

Solely vested with the power to determine whether or not to bring charges, what charges to bring, what plea bargain to offer, and what sentence recommendations to make, the stage for sentencing is set by the prosecutor.

Having chosen to prosecute the educators for felonies, including racketeering, the charge created for organized crime, mobsters, and gang activity, Fulton District Attorney Paul Howard can now only make recommendations within the sentencing prescribed for the convictions. The judge is not required to accept them.

However, as the people’s elected official, Howard should perceive better than anyone the degree to which this complex prosecution has impacted the lives of all people in this community, not just the students, but the Atlanta community as a whole, the Atlanta Public Schools, thousands of teachers and employees, thousands of students who did benefit from the higher standards and millions of non-taxpayer generated dollars, the city and chamber charged with recruiting businesses to a city now labelled with the biggest cheating scandal in the country.

Howard chose to allow the 21 educators who admitted to changing answers to plead to misdemeanors, in exchange for their testimony against their supervisors and return to their homes, find other employment and resume their lives.

Except for one defendant, the higher tier of supervisors within the senior cabinet, those who set policy for performances and bonuses and report directly to the superintendent were deemed “unindicted co-conspirators” and not prosecuted.

Two accused administrators, including the superintendent have died. The 12 defendants who refused to plead to felonies exercised their constitutional right to a jury trial.

Some 40 other states have had cheating scandals according to the United States Government Accountability Office. None has resulted in criminal charges and, especially not racketeering charges, as Paul Howard chose to prosecute.

The district attorney needs to consider these facts in his sentencing recommendation as well as the non-judicial sentences which the convictions of these educators impose upon them -- loss of professional licenses which make it impossible for them to return to their chosen professions; financial loss as a result of their inability to work for more than five years; forfeiture of the lifelong pensions for which they have worked; and the detriment to their families and communities of their loss of service and talent as a result of the stigma which these prosecutions have imposed.

While it may be counterintuitive to Howard’s prosecutorial instincts to recommend minimum sentences, the discretion vested in him by the Constitution and the trust placed in him by his constituency cry out for his statesmanship. He should make a humane recommendation that helps to heal this community and restore the lives of these educators.

Moreover, Judge Baxter should exercise his tremendous discretion in imposing sentences which reflect that any conspiracy involves our entire educational system in the high-stakes testing arena. These educators did not create the system in which schools have been corrupted across this nation by making standardized tests the chief measure of school, teacher and student performance.

Certainly, incarceration is neither mandated nor appropriate in this case.

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About the Author

Maureen Downey has written editorials and opinion pieces about local, state and federal education policy since the 1990s.