County attorney challenges 'race based' DUI courts
Capitol Media Services
Oct. 22, 2008



By Howard Fischer

Tucson, Arizona | Published: 

PHOENIX A legal fight playing out this week in a federal appeals court could determine how much right Arizona judges have to fashion special probation programs geared to an individual's race or language.

Maricopa County Attorney Andrew Thomas wants a judge to declare special "race based" courts for handling the cases of some people convicted of drunk driving are illegal.

"Our judicial system should not be segregating defendants based on their race or their nationality," he said. "That is not only morally offensive but unconstitutional."

But Thomas has been unable to even make his legal arguments because U.S. District Judge Earl Carroll threw the case out, saying he has no standing to sue.

Thomas is hoping to get the 9th U.S. Circuit Court of Appeals to decide otherwise when it hears arguments Thursday.

While the case deals specifically with the practices in Maricopa County Superior Court, the outcome of the litigation could have broader implications, setting limits on what kinds of special programs Arizona judges can set up in efforts to help people successfully complete probation.

Maricopa County set up a special "DUI court" in 1998.

Technically, it is not a "court" where people are put on trial. Instead, presiding Judge Barbara Mundell said, it is a "therapeutic probation program" designed to monitor the activities of those already convicted.

It differs from standard probation because it is conducted in public sessions at the courthouse, with the judge acting as the probation officer and checking to see if the felons have completed various tasks like attending counseling and submitting to tests to ensure they are not drinking.

Those that don't cooperate can be sent back to jail for another 60 days.

In 2002, separate "courts" were set up for Native Americans and those who speak Spanish.

Mundell said the courts set up for the mainstream Anglo majority did not work as well to ensure minorities successfully completed their probation.

"The courtroom is really a theater," Mundell said, similar to a meeting of Alcoholics Anonymous.

"People in the audience need to know what's going on with the person that's before the judge so that they know why he got sanctioned or why he got praised," the judge explained, so they can adjust their own behavior accordingly. Mundell, who speaks Spanish, said the best way for that to occur is to conduct it in the language that everyone involved understands.

The Native American courts are conducted in English, Mundell said. But she said the counseling is in their native language and takes cultural factors into account that are designed to help them succeed.

"It's about public safety and making sure that people stay sober," she said. "We save lives and they don't drink and drive."

Thomas, however, said there is "no evidence" either program results in more people successfully completing probation. But even if there were, the county attorney said it is unconstitutional to have probation, which is part of the court system, set up along racial or language lines.

It's also discriminatory, he said.

Thomas said there is evidence those in the Spanish language DUI courts, "many of whom I suspect are illegal immigrants," receive less punishment when they don't comply with the terms. "Public safety is being endangered rather than enhanced by this program," he said.

Judge Carroll dismissed the case after finding Thomas had no standing to sue. He rejected Thomas' contention he had an interest because his prosecutors were "compelled to participate in unconstitutional separate DUI courts."