Recidivism – Fair?

Kelly Burke, September 2022community, Georgia Laws, Liberty

Why is recidivist treatment a “thing” in Georgia law? Frustration has more to do with it than anything. Ostensibly racism was not intended in recidivism laws, but practically it was racist in application. NORPs don’t know what to do with somebody who won’t “follow the law.” First, what is a NORP? A normal, ordinary, regular person. Someone who only breaks the law by speeding a little bit. Someone who would be petrified if their picture were in the paper for a DUI. Everyone has a “black sheep” in the family, so NORPs know that crime happens in everyone’s family, but not to their immediate family. Second, who am I to even be discussing this issue of recidivism? I graduated from Georgia Tech, went to Mercer Law, and joined the bar in June 1984. I engaged in private practice until July 1992 when I became a magistrate judge, then was elected district attorney, and took office in January 1997. I left office in March 2010, to re-enter private practice. I retired from the practice of law on July 1, 202o. That is my life background. I’ve learned a lot over the years but more in the past two years about racial justice than I had learned cumulative up to then. Today I write about recidivism.

So, what is recidivism? It’s generally defined as a person who has previously been convicted of crime(s) and keeps on committing crimes. Why it matters is because in the 1990s during the nation’s “war on crime” the use of recidivist punishment meant that a person with several convictions received harsher punishment upon subsequent convictions. Georgia enacted several recidivist statutes, but the most cited and invoked is three strikes and you’re out. O.C.G.A. § 17-10-7 (c) – Three Strikes Rule. The rule is not mandatory, but discretionary by the District Attorney in its use. Are there racial overtones to the law? Sure. While the law is color-blind on recidivism, in application it is proportionately used against Black defendants more than white Defendants. If the DA files the appropriate paperwork, and the facts back up the prior convictions, the judge has no choice but to impose the maximum sentence for the crime committed by the defendant. Therefore I say that the most important judicial officer a community elects is the DA, not the judge. DA’s have a lot of power in how they charge someone and whether the DA seeks enhanced sentencing. Judges have little, if any, power to change a DA’s decision.

When I was DA, I often used the threat of seeking recidivist sentencing to get people to plea guilty and dispose of their case. It was simply a tool in the justice toolbox. If someone bucked me on my threat and went through with a jury trial, they had better win, or the maximum sentence was going to be imposed. At least early on in my prosecutorial career that was true. As I aged, I moderated and only used recidivist sentencing when someone was the proverbial “bad apple” and needed to be off the streets. However, for Jessie James Askew, Jr., my change of heart was a little too late.

While I have long since retired from being district attorney (Houston Judicial), one case still sticks in my mind where I misapplied recidivism sentencing. About 24 years ago, Jessie James Askew, Jr., committed an armed robbery with a friend of his. I was a young hot-shot new prosecutor (a legend in my own mind) and gave the two young armed robbers a chance for a plea. One took it. The other didn’t. That would be Jessie. No one was hurt in the armed robbery. The jury trial was easy. Jessie had some pissant (always seems like it should be hyphenated) felonies, including stealing his grandmother’s car I think, that qualified him for recidivist treatment. Jessie made me go through a jury trial when he was slam dunk guilty. He was young, arrogant, and cocky, a bad combination at that age (he was 23 I think). The jury did their job and found him guilty. Judge Nunn didn’t want to impose LWOP (Life Without Parole), but I refused to back down. Jessie got a horrible sentence, but it was totally legal, or so I thought.

Years later and time has since mellowed this hot shot prosecutor into a more reasonable old geezer. Before I left the DA’s office, I talked to the Parole Board, Judge Nunn, and even my DA appellate lawyers about reducing Jessie’s sentence, now that his co-defendant was a free man. I felt like Jessie had served enough time, but the sentence appears legal, though not just. I continue to offer assistance to Jessie’s legal team but so far to no avail. While it’s a one-man story, and while race didn’t play a part of it originally, the injustice of a black man spending half of his life in prison for a crime where no one was hurt when others have committed murder and done less time is not lost on me. He’s the ONLY inmate I feel like I was too hard on. I’m hopeful that his sentence can be rectified soon.

Did race play a part in my decision? No, it didn’t. I think even Jessie would tell you that. Jessie and I communicate about his case via email now, and while he appears to have really reformed his life, that’s not why I support his sentence being reduced. I was unduly harsh on Jessie as I was setting an example at the time for my newly established office, the police, and the community. Jessie happened to bear the brunt of it. How unusual is it for a DA to try to reduce the sentence of an inmate he convicted? Pretty unusual, I think. But I believe it is fairness to reduce the sentence.

Recidivist sentencing takes the discretion away from the judge and puts it in the hands of the DA. In most cases, it is simply a tool in the justice toolbox, but on occasion it is a sledgehammer when a feather would do. Real justice would allow for a review of Jessie’s, and any other similarly situated inmate, sentence to meet due process fairness standards. The current law is thus unfair and often racist in its actual application.

I received a letter from Jessie a few weeks ago . In Jessie's letter he thanked me for having a heart and for supporting his release. Jessie also asked me why I wouldn't support his release when his Attorney Mrs Elizabeth Lane contacted me ? I didn't understand what Jessie was asking me.. So I asked Jessie if he was saying that Elizabeth Lane contacted me. He said yes. I wrote Jessie back and informed him that Ms Lane NEVER CONTACTED ME ABOUT HIM!! I received letters from Jessie written by Elizabeth Lane  April 29 , 2010 and CLEAR as DAY MS Lane states "I have talked to both of the PROSECUTORS, Mr Burke and Mr Rockefeller about your Case and neither one of them wants to go on record or admit there was a plea. Mr Burke has now resigned"... PEOPLE I stepped down as Houston County District Attorney on March ,10 2010. 

What Ms. Lane said in her April 29, 2010 letter is untrue. She did not speak to me, as I had already been trying to get Jessie's sentence modified at that point. I told Jessie he should file a bar complaint as well as any habeas petitions he wants. 

I don't recall ever testifying in a federal habeas hearing, but it is possible I did. There is only one time I remember testifying in federal court and it might have been a habeas. I told the truth of course, and that prisoner got a new trial due to ineffective assistance of counsel. In a letter written to Jessie from Ms Lane date August 3,2010 . Ms Lane states "IVE THOUGHT ABOUT IT QUITE A BIT ,AND DON'T THINK THERE'S ANYTHING TO BE GAINED BY SUBPOENAING BURKE OR ROCKEFELLER. I HAVE NO EXPECTATIONS THAT EITHER WILL TELL THE TRUTH AFTER WITNESSING THEM BOTH TESTIFYING AT A FEDERAL HABEAS CORPUS HEARING". AGAIN Ms Lane has lied and deceived Jessie and his family. 

I was active District Attorney of Houston from 1997- March 10, 2010. From My understanding Ms Lane was hired by the Askew family sometime around 2003 and Jessie's State habeas corpus hearing wasn't held until May 2011!  Ms Lane never contacted me or my office about Jessie James Askew Jr. 

–Written by Mr Kelly R Burk in SUPPORT of Jessie James Askew Jr who has been incarcerated for over 2 DECADES and a half for a armed where  no one was HURT or KILLED. Yes it was a DUMB CRIME but people no one was hurt or KILLED....NO SHOTS FIRED AND ACCORDING TO THE CODEFENDANT FERNANDO JACKSON THE WEAPONS WERE NEVER LOADED !! FERNANDO JACKSON'S TESTIMONY WAS BELIEVABLE , THE JURY BELIEVED HIS WORD!!!!