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Race-based DUI courts are not colorblind justice

By Rachel Alexander
web posted January 16, 2006

Almost 38 years after Martin Luther King, Jr. delivered his famous "I Have a Dream" speech, "separate but equal" still exists in Maricopa County, Arizona. Under the guise of multiculturalism, the Presiding Judge of the Maricopa County Superior Court, Barbara Mundell, has set up separate race-based courts for defendants convicted of aggravated DUI's. Defendants who speak Spanish are sent to their own Hispanic court, which is conducted by Judge Mundell in Spanish. Prosecutors, defense attorneys, probation officers, and members of the public must ask for headphones, if available, to have the proceedings translated into English. Very little is recorded, so it is impossible to determine afterwards with accuracy such things as the circumstances surrounding a decision to sentence a defendant to jail for violating probation.

Native Americans are segregated into their own court, and are required to show up together on one designated day each month. They are required to participate in sweat lodges and talking circles, regardless of whether their tribe historically participated in such activities. Some of the Native American and Hispanic DUI defendants have objected to the separate courts. All other DUI offenders, whether white, black, or other race or nationality, are assigned to standard DUI Court.

The local NAACP is outraged by this two-track system of justice. The Reverend Oscar Tillman, President of the Maricopa County NAACP, has joined Maricopa County Attorney Andrew Thomas in calling for a halt to race-based courts. As the Maricopa County Attorney, Thomas took an oath to uphold the Constitution. He cannot stand by and allow prosecutors, as well as defendants and victims, to participate in an unconstitutional court. Separate but equal courts violate the Equal Protection Clause of the U.S. Constitution, which states in part, "no state shall…deny to any person within its jurisdiction the equal protection of the laws." Unless the government can demonstrate a "compelling" interest for treating races or nationalities differently, racial segregation by government is held to a strict scrutiny test, which almost always means it will be struck down as unconstitutional. Discrimination by race also violates the 1964 Civil Rights Act.

Segregation by language, which can be subject to a lesser standard of scrutiny than segregation by race or nationality, is subject to strict scrutiny if it is clear that it is merely a pretext for separation by race or nationality. The Superior Court's literature describes the DUI Courts as catering to different "cultures," since regular DUI Court is for the "dominant class, white males." The Substance Abuse and Mental Health Services Administration, a division of the U.S. Department of Health and Human Services, is amiss in providing grants to these separate courts.

Judge Mundell refuses to disband the race-based courts, claiming there are no constitutional issues involved since DUI Court covers probation, not a defendant's initial trial. This is an incorrect interpretation of the law. Last year, the Supreme Court addressed the issue of separating prisoners by race in Johnson v. California. The court held that strict scrutiny applied there, as well as to the criminal justice system generally. Judge Mundell has provided no compelling reason why separate courts are necessary. Spanish-speaking DUI defendants are already provided interpreters throughout all aspects of the court system.

Good intentions do not trump the Constitution. Treating people differently for "cultural" reasons is not a compelling reason justifying discrimination. It is disturbing that Maricopa County Superior Court stereotypes all Native Americans and Hispanics with cultural alcohol problems.

The current naïve trend of emphasizing multiculturalism and diversity is a disguised re-appearance of the separate but equal segregation that Civil Rights leaders fought so hard in the 1950's and early 1960's to eradicate. The idea that non-Caucasians are in some way fundamentally different than Caucasians inevitably leads to feelings of superiority or inferiority. Instead of improving the lives of minorities in the U.S., emphasizing separateness by race and nationality has had the effect of hurting the integration of minorities into the American way of life, leading to a Balkanization of society. Separate treatment provides incentives for individuals to identify with allegedly oppressed groups rather than the nation as a whole. This results in competition among the various groups for their own portion of special treatment. It also creates resentment by Americans towards immigrants who enter the U.S., because those immigrants are encouraged not to assimilate.

Judge Mundell has stated that she would be happy to set up separate courts in other languages for African-Americans, Asians, and other ethnic groups if there were sufficient numbers to justify each court. This is not the answer; it is silly and would cost taxpayers an unnecessary amount of money. Racial segregation did not work in the past, and it will not work today.

The criminal justice system is the first place Americans should be assured of fair treatment. Martin Luther King, Jr. spoke in 1968 of his dream that his children would one day "live in a nation where they will not be judged by the color of their skin but by the content of their character." It is disturbing that Dr. King's speech addressed the precise situation today in Maricopa County Superior Court. Judging on the basis of skin color constitutes state-sponsored discrimination and must be ended.

Rachel Alexander is a Deputy County Attorney with the Maricopa County Attorney's Office. Alexander is the founder of Intellectual Conservative.

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