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Over-criminalization and the Atlanta Cheating Scandal

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The idea that the Atlanta educators who distorted standardized test results should be brought up on racketeering charges is absurd:

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.

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