The 2017-18 confinement number signals a dramatic decline from 2016, when 37% of repeat offenders were incarcerated.

Dave Wilkinson, CEO and president of the Atlanta Police Foundation and chair of the AROC, suggests the drop came because of a lack of oversight of judges’ performance.

“I’d have people tell me a judge was tough on crime, and I’ll tell them, ‘How do you know?’” Wilkinson said.

Yet more incarcerations would seem out of step in this era of criminal justice reform aimed at reducing the prison population.

And is it fair to pin the problem of repeat offender recidivism solely on Fulton judges?

The Atlanta Repeat Offender Commission comprises senior officials from each of the law enforcement, judicial, legal and political entities serving Atlanta and Fulton.

Fulton Superior Court Chief Judge Robert McBurney, a commission member, said the AROC report seems to conflate repeat offenders with violent criminals.

Fulton County Superior Court Chief Judge Robert McBurney. (credit: Alyssa Pointer / Atlanta Journal-Constitution)

“There is a reason for the community to be concerned,” said McBurney, the Fulton judge who boasts the highest rate of confinement sentences for repeat offenders. “But it gets complicated when one tries to put a label on repeat offenders.”

Most were convicted of nonviolent crimes, the AROC study found. About half of all crimes committed by repeat offenders in Fulton from 2017-18 were drug-related, followed by larcenies — the type of offenses, reform advocates say, better served with treatment and rehabilitation. In 2017, 15% of repeat offender crimes were for violent offenses (homicide, assault, battery). That dropped to 7% in 2018.

“I don’t know if the numbers tell the whole story,” McBurney said. The confinement rate, he said, does not factor in time served, which is the amount of time a defendant spends in jail awaiting trial. That sentence was handed out in 37% of the cases.

“Many will land in court with 27 months in jail under their belt,” McBurney said. “To me, that would be a reasonable sentence” for a nonviolent crime.

The average time served on a fourth felony conviction is 95 days, according to the AROC report.

“A vast majority of citizens don’t understand how you can commit three felonies and still be walking the streets,” Wilkinson said.

“There’s absolutely zero transparency in the Fulton County judicial system,” he said. “There’s no way to tell what the sentencing tendencies of these judges are. They should have to defend their decisions, like any other public official.”

Atlanta Police Foundation President and CEO Dave Wilkinson. (Jason Getz / 2011 AJC file)

Wilkinson said the AROC’s findings are not incompatible with criminal justice reform.

“Everybody agrees with a second and even a third chance,” Wilkinson said. “Everybody agrees rehabilitation is a heck of a lot better than incarceration. What we’re talking about is protecting citizens of Atlanta from those individuals who’ve shown they’re not getting it. A lot of these guys have upward of 15 to 20 felonies.

“Eventually these folks have got to be held accountable,” he said.

‘Still Gonna Get Out’

The report singles out a few cases. Bobby Thornton, 56, had 10 prior felony convictions and was on probation when he was arrested and charged in a 2015 burglary. He was convicted and sentenced in January 2016 to 15 years of probation. He was arrested again in 2018 for entering an automobile and committing criminal damage to property. Sentence: Two years’ probation.

Later that year, Thornton was arrested, tried and convicted for aggravated assault with a deadly weapon. Fulton Superior Court Judge Kelly Lee Ellerbe sentenced him to time served, which was commuted to a sentence of four years of probation and entry to the Tall Pines Estates assisted living program.

“Three judges passed sentences on this felon who committed most of his crimes while on probation,” the report states. “The defendant was never sentenced to confinement despite a history of repeated violent offenses, each of which was a serious violation of his prior sentence(s).”

But court transcripts reveal the latest sentence, like so many others, was negotiated and recommended by the state. Thornton suffered from a mental illness, which Fulton Assistant District Attorney Jeff Mullis acknowledged at sentencing.

“If he is going to stay at this Tall Pine Estates, have assisted living where he is getting meals, I think Mr. Thornton will stay out of trouble and we won’t have any issues with him, particularly with him getting his medication,” said Mullis, according to court transcripts.

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Ellerbe, who sentenced 10 of 97 repeat offenders in 2017-18 to confinement — the lowest percentage of any Fulton judge with at least a dozen adjudications — defended her record.

“Studies show you lock them up, let them out, and they go back to their old tricks,” said Ellerbe, adding she tends to steer defendants, most of whom are mentally ill or drug addicted, to accountability courts. Created in 2012 by the Georgia General Assembly and championed by former Gov. Nathan Deal, the courts seek to divert nonviolent offenders from prison.

“You sentence them to five years, they’re still gonna get out and go straight back to their old behavior, still addicted,” Ellerbe said.

‘Hold Everybody Accountable’

Atlanta police spokesman Carlos Campos called the report “a good start.” But he said it lacks key data that would illustrate the scope of the problem.

“We need significantly more data around convicted felons being arrested with both guns and drugs, which is something our offices are encountering with more frequency,” Campos said. “We believe that data will create a truer picture of the depths of the repeat offender problem and the system’s inability to appropriately cope with it.”

Wilkinson said the 2017-18 report is just the beginning. The police foundation plans to publish Fulton judges’ sentencing records on a quarterly basis. They want the district attorney to provide a list, updated monthly, of all repeat offender felony arrests. And they have proposed a pilot program of enhanced electronic monitoring of the most severe repeat offenders, including the imposition of a 10 p.m. curfew and banishment from areas where the offender previously committed crimes.

Fulton County District Attorney Paul Howard during a press conference at the Fulton County Courthouse in March 2019. (ALYSSA POINTER/ALYSSA.POINTER@AJC.COM)

District Attorney Howard has maintained a contentious relationship with Fulton's judiciary. So it was surprising when the veteran prosecutor said he didn't agree with the report's conclusion that the county's judges are too squishy — an accusation he has leveled in the past.

“I’m trying to understand the point the report is trying to make,” Howard said.

He produced his own numbers that showed sentences by Fulton’s judges, while on the low end, were generally on par with their counterparts in Cobb, DeKalb, Gwinnett and Clayton counties.

“The study needs to be a lot more comprehensive,” Howard said.

Wilkinson, anticipating the criticism, said the commission is undeterred.

“We want to put the pressure on the system,” Wilkinson said. “Then hold everybody accountable. All of us are accountable, including the police and the district attorney.”