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March 1, 2006
A Test of Ethnic Courts for Drunken Drivers
By RANDAL C. ARCHIBOLD
Attacking what he called racial and ethnic segregation, the Phoenix district attorney filed a federal lawsuit yesterday against Arizona court programs set up to provide treatment for Spanish-speaking and Indian drunken-driving offenders.

Andrew P. Thomas, the Maricopa County attorney, whose office serves the fourth-most-populous county in the nation, said the "race-based courts" violated the Constitution and federal laws barring discrimination on the basis of race or ethnicity.

The programs are not technically courts. They are probation programs that steer people to therapy and other treatment in an effort to combat alcohol addiction, though a judge may impose jail or other sanctions for people who violate the terms.

Maricopa County has three such programs, a general D.U.I. court and others for Spanish speakers and Indians, which were established several years ago. The presiding judge, Barbara Rodriguez Mundell, has defended them as important to overcome participants' language and cultural difficulties.

Calls to Judge Mundell were referred to the courts' lawyer, Stan Claus, who declined to comment, citing a policy against speaking on pending litigation.

Experts said the Spanish and Indian courts are among the few such programs in the nation. The general D.U.I. court programs were established a decade ago and now number 86 nationwide, according to the National Drug Court Institute.

The challenge to them comes in the heated atmosphere of a state where immigration and Indian rights have been fiercely debated.

The Arizona Republic newspaper, in an editorial in January responding to Mr. Thomas's threats of a lawsuit, accused Mr. Thomas of merely seeking "attention-getting headlines."

But Mr. Thomas, a Republican, said he acted out of an obligation to uphold the Constitution. He said the Spanish-language and Indian courts had resulted in disparate treatment among offenders, with defendants in the special courts receiving lighter penalties for violating probation.

For example, Mr. Thomas said, a study by his office showed average jail sentences for probation violations in the general D.U.I. court were more than double those in the Spanish-language one.

Mr. Thomas said he was unmoved by the court's assertion that people in the special courts were less likely to drink and drive again.

"Let's say they were successful in reducing the recidivism rate," Mr. Thomas said in an interview. "The notion that racial discrimination in sentencing is acceptable as long as we reduce the crime rate is morally offensive."

The Spanish-language court was established in 2002 and the Indian one in 2003. Mr. Thomas, who was elected in November 2004, said he became aware of them only last year and then immediately began working on a case against them. Prosecutors in his office attend hearings in the courts and, in the case of probation violators, make sentencing recommendations.

In his lawsuit, Mr. Thomas asserts that "both segregated courts are premised on the assumption that certain races or ethnicities require a distinct cultural approach to their problems and participants are thus forced to participate in activities that the court believes are appropriate for their race or ethnic group."

Both courts are financed in part with grants from the federal government, a fact that legal experts said might make Mr. Thomas's case difficult.

They said that federal courts had generally upheld the use of Spanish and other languages in judicial proceedings and that simply referring people to a program conducted in their native language or cognizant of their culture might not constitute discriminatory treatment.

Mr. Thomas said he would stand his ground.

"We have racially segregated proceedings in the criminal justice system," he said, "and that is very troubling because even at the height of Jim Crow the segregated Southern governments did not establish separate courts based on race, and yet that is what is occurring here."