Kelley Williams-Bolar is no no longer in jail, but the Ohio Justice and Policy Center has taken up her appeal, with attorney and executive director David Singleton promising a three-front strategy: Litigation, a pardon application and of course media scrutiny. The newly elected Republican governor of Ohio, John Kasich, plagued by public criticism of his all-white cabinet, has developed an unexpected conscience and has directed his legal team to review the Williams-Bolar case.
Ms. Williams-Bolar was convicted of "tampering with records," a third degree felony under Ohio law. See Ohio Rev. Code Ann. 2913.42. The maximum term of imprisonment for each count is five years, and she was convicted of two and sentenced to the maximum for reach, her term of imprisonment suspended for all but ten days. Judge Cosgrove, who presided over her case, also submitted a letter recommending that a state teacher certification board allow her to continue to teach. The State Board of Education may refuse to issue, revoke, suspend or limit a teaching license if a person is convicted of any felony. See Ohio Revised Code Ann. 3319.31(B)(2)(a).
As a preliminary matter, I want to emphasize that this information has not been in any of the reports I have read; when discussing her convictions, these news accounts have avoided citation to the relevant statutes, but have referred to the charge, "tampering with records," and I was able to find the relevant citation with a Lexis search. For anyone so inclined, there is a free Lexis account, LexisOne, specifically designed for single practitioners, journalists, university students and others who cannot afford the attorney accounts. There are other resources available as well. This is intended only as a helpful suggestion that might improve legal reporting in the future.
This case has ignited a national debate over race, educational opportunity and the criminal justice system. Those are interesting issues, but I want to narrow in on prosecutorial discretion. So let’s start there. What is it?
We’ll use Ohio law on the subject, although there are federal constitutional principles that apply as well. The basic problem is, prosecutor’s enjoy quite a bit of discretion in their decision to charge people with crimes. The discretion is not unfettered, of course; they cannot prosecute someone because of their race, gender or other constitutionally suspect category. Where the legislature clearly intends for a more specific statute to apply instead of a more general statute, their discretion to charge the more general statute may be limited. But these are exceptions to the general rule. In general, there are few limits placed on a prosecutor’s charging decisions, and a defendant challenging those decisions faces a fairly high burden of proof. "[P]rosecutorial discretion as to what offense is charged when two statutes proscribe the same conduct is not unconstitutional unless exercised to discriminate against a particular class of defendants." State v McDonald, 31 Oh. St. 3d 47, 509 NE2d 57 (1987). So this is the general rule; selective prosecution is the exception to that rule. To support a claim of selective prosecution, a defendant bears the heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against her, she has been singled out for prosecution, and (2) that the government's discriminatory selection of her for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent her exercise of constitutional rights. See City of Pepper Pike v Dantzig, 2004 Ohio 2562; 2004 Ohio App. LEXIS 2276 (Ohio Court of Appeals, May 20, 2004). In order to be "similarly situated" to others who were not charged or who were charged with lesser offenses, the relevant conduct must be identical or at least nearly identical. State v LaMar, 95 Ohio St. 3d 181(2002). Showing disparate treatment is not enough; intentional or purposeful discrimination will not be presumed from a showing of differing treatment. A defendant must demonstrate actual discrimination due to invidious motives or bad faith. I will not say that this standard is impossible to meet, but it is damn near close.
Was there sufficient evidence to support a prima facie case here? Probably not. Ms. Williams-Bolar was not the only parent who had her children attending a school where they did not belong, but she was the only parent who refused to remove her children when confronted with evidence of a violation. Moreover, there is no evidence that any of the parents who were not prosecuted for falsifying records refused to own up to their falsification when presented with evidence. According to virtually every report I have read, the parents either successfully appealed the residency decision, paid the tuition or withdrew their children from the school district. They were not, in other words, similarly situated for purposes of a selective prosecution defense. Moreover, the timeline, which is available at the Akron News Now site, strongly suggests that she attempted to cover her tracks after being discovered in October of 2007. Whatever one thinks of this conduct, it distinguishes her from other parents. Moreover, there is no evidence that race factored into the decision to investigate or charge her, much less sufficient evidence to make out a prima facie case of selective prosecution. And even if showing disparate treatment was sufficient, which is to say, even if we eliminated the second prong of the selective prosecution test, there would not be enough evidence to second-guess the charging decision.
Does this mean that the prosecutor was right to charge a felony and refuse to plead down to a misdemeanor? Clearly, the judge did not agree with this decision, but she was not in a position to reduce the charges; ultimately, it was up to the prosecuting attorney, and she elected to proceed with the felony counts.
The role of prosecutors is unique. They enjoy a great deal of discretion, but they are politically accountable as well, and they are supposed to pursue justice, not simply felony convictions. What can we ultimately say about her conduct here? It was almost certainly legal, there is little doubt of that. But does this case really belong on a felony calendar? The jury convicted her on two counts, one related to residency falsification, the other related to falsification of income submitted on a free lunch application for the school lunch program (she did not include her own income, but apparently did include monthly child support payments). Whatever one thinks of that conduct, we can all agree that these are probably relatively pervasive violations. We know that the residency violations are; even the prosecutor admits that there were other parents who were caught doing the same, the difference in conduct was relatively minor. Once caught, they withdrew their children, updated the residency information or paid tuition. And of the parents who withdrew their children, it is unclear whether or not civil and administrative remedies were taken to obtain the tuition, at least from what I have read. It is at least theoretically possible that Ms. Williams-Bolar could have been ordered to pay significant restitution had she been convicted of a misdemeanor.
This may not have been a case of racial injustice, but I do feel for Ms. Williams-Bolar. It is not easy being poor or even middle class in the land where cash is king. Many people take short-cuts, and only a few are ever caught in the criminal justice matrix as a result. Does any of this really make you question whether she should be teaching children in the future? If the answer to that is no, and I hope that it is, this case should have been resolved with a misdemeanor.