Use of gangster law to prosecute Atlanta educators sparks legal, moral debate

April 16, 2015 10:51 AM PT

Reporting from Washington — Congress passed the Racketeer Influenced and Corrupt Organizations Act, commonly known as RICO, in 1970 out of a concern over rising mob infiltration of unions and corporations.

It was aimed at jailing gangsters behind killings that were plaguing New York and New Jersey, and at seizing corrupt companies or criminal enterprises.

When eight Atlanta educators were convicted under a state RICO statute of manipulating their pupils’ test scores and sentenced to prison Tuesday, many were surprised that the law had been stretched so far. Over the last half-century, the definition of a criminal enterprise has come to include Atlanta public schools. And “racketeers” could be teachers and school administrators.

But it did not surprise veteran observers of RICO laws like Atlanta law professor Morgan Cloud, who watched the federal statute clobber the mob in the 1980s and then move on to such unexpected targets as the Roman Catholic Church, Major League Baseball, antiabortion activists, the Los Angeles Police Department and Wall Street financier Michael Milken.

“Almost any form in which humans can carry on human activity can be a criminal enterprise,” Cloud said. “It can be a group of guys who meet on the corner.”

Prosecutors like RICO laws because they carry tough penalties and make it easier to get at top officials or leaders who previously often escaped conviction. Before the laws existed, prosecutors found it more difficult to convict the person who ordered a slaying than the one who actually pulled the trigger.

Now, a person involved in a criminal enterprise commits at least two of a long list of crimes, is part of a pattern of racketeering activity, and can be sentenced to up to 20 years, and the ill-gotten gains of the enterprise can be seized. Certain individuals can also sue under RICO laws.

The Atlanta case was the first academic misconduct trial in the nation in which elementary school teachers were convicted of violating a RICO act.

A state investigation had found that as early as 2005, educators gave answers to students or erased and changed answers on tests after they were turned in. Evidence of cheating was found in 44 schools, with nearly 180 educators involved.

The case became a signpost for the pressure placed on teachers and administrators by the heavy emphasis on standardized testing. Teachers whose students performed well received bonuses, while those who failed to meet targets were threatened with demotion.

In 2013, 35 educators were indicted on charges that also included making false statements and theft. Some pleaded guilty to lesser charges.

But Tuesday, after a sometimes raucous six-month trial, three school administrators were sentenced to seven years in prison and five other educators to terms of one to two years, in some cases double what prosecutors had recommended.

Veteran Atlanta criminal defense lawyers expressed concern this week that a law intended for gangsters had been used to prosecute educators.

The state RICO statute, modeled after the federal law, was used by prosecutors “as a large club designed to get people’s attention and to beat people over the head with it if they didn’t succumb to the prosecution’s plea offers,” said defense attorney Steve Sadow.

Sadow said that state parole guidelines are set very high for RICO, meaning that those sentenced to seven years would probably serve five or more.

Sadow said the severity of the sentences had triggered a legal and moral debate in Atlanta.

“The defense attorney in me says they may be legally justifiable, but morally it’s too severe for the criminal conduct,” he said. “The citizen in me says the harm from the criminal acts is long-term suffering by the students. One might argue some of these teachers got off light.”

“I think it’s overkill,” said Bruce H. Morris of the Finestone & Morris law firm in Atlanta. “RICO was originally designed for organized crime — folks who band together through a group effort. It was nowhere intended from the outset to go after a legitimate entity through which people violated the law.

“In this particular case you have teachers at different schools on different days at different times not knowing that other teachers were making corrections on these tests.”

When one of the defense lawyers in the trial objected to the harsh sentences this week, Judge Jerry W. Baxter reacted strongly, saying that students who needed extra help were the educators’ victims.

“I think there were hundreds and thousands of kids who were lost in the schools,” Baxter retorted. “That’s what gets lost. Everyone’s crying, but this is not a victimless crime that occurred in this city.”

After the federal RICO law was passed in 1970, prosecutors were at first slow to take advantage of the unproven weapon, even against gangsters. Frank “Funzi” Tieri, who headed the Genovese crime family, was the first Mafia boss convicted under it, in 1981. But in the 1980s, as courts upheld convictions for a wider array of crimes, it became widespread.

In 1989 financier Michael Milken, one of the creators of the junk bond market that fueled some of the financial excesses of the 1980s, was indicted on 98 counts of racketeering and fraud. But with lengthy RICO sentences looming, Milken was persuaded to plead guilty to securities fraud and served less than two years in prison.

Asked whether calling the Atlanta Public Schools a criminal enterprise is a stretch of the law, Cloud, who teaches at Emory University School of Law, said: “Anyone who has worked professionally in this [legal] field for very long could not have been surprised. I was not surprised in the least. It’s sufficiently egregious, and this clearly fit within the way the RICO statute has been applied since 1970.”

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Special correspondent Jenny Jarvie in Atlanta contributed to this report.