With Equal Justice for All? The Inequality of Separate but Equal

By Carol Turoff

March 17, 2006

 Maricopa County Attorney General, Andrew Thomas Lady JusticeArizona prosecutor shows unwavering determination in challenging race-based courts.    

During his campaign for Maricopa County Attorney, Andrew Thomas drew a line in the sand.

In the greater Phoenix area, illegal immigration is a polarizing issue of immense proportions. His eye-catching, red and white, triangular campaign signs bellowed out, Stop Illegal Immigration. Opponents charged the office had no jurisdiction over the matter. But the pragmatic Thomas was resolute–and he triumphed, beating out five primary challengers and devastating his Democrat rival.

As elected prosecutor, the Harvard educated lawyer and author has kept his promises and then some. Thomas is taking the previously inconceivable step of bringing criminal charges against illegal entrants, as well as the coyotes or human smugglers who transport them. Indicting illegals as co-conspirators, since they pay their transporting agents an average of $2000 to secure their unlawful passage, is a concept that has met with praise from many quarters. Those espousing open borders and unchecked immigration policies are outraged. For most, however, Thomas’ policy provides rational legal remedies to a growing societal problem. The concept of border crossers paying others to enable them to break the law, does not engender victim-hood status.

In another bold move, County Attorney Andy Thomas has recently filed suit against the county court system in federal district court, alleging that separate proceedings held in Spanish or held solely for Native Americans are illegal. Thomas views such “race based courts” as unconstitutional, violating basic civil rights.

“Justice must always be colorblind.” says Thomas. “This is a principle which cannot be undermined and which I, for one, am willing to defend.”

Presiding Superior Court Judge Barbara Rodriguez Mundell, has defended the practice of holding special DUI courts. Terming the proceedings held in Spanish and for Native Americans “rehabilitation programs,” she says the federally funded courts are constitutional because they are not courts of record. Judge Mundell says the programs are designed to reduce accidents and DUI deaths by assisting these two minority groups through alcohol recovery and education.

The select courts supervise DUI probationers who have served prison time following felony convictions. To date, there is no supporting evidence that recidivism rates have lowered with those going through this customized process.

An analysis commissioned by County Attorney Thomas, found the special courts violate federal anti-discrimination statutes and the due process right of equal access to courts. The study was prepared by Washington DC lawyer and constitutional expert Michael Carvin.

Judge Mundell is on record stating she would give consideration to the creation of new courts for other races or groups if she concluded it would benefit society.

The establishment of such race-based courts is troubling in the face of unequal treatment of defendants. Statistics show that the average jail time served by those in race-based specialty courts was less than half the time served by defendants in the general population DUI courts.

The innovative Thomas charging policies are being observed with interest in other jurisdictions. And, his opposition to Arizona’s courts violating the “separate but equal” concept thrown out by the US Supreme Court in 1954, puts this first-term prosecutor in good company.

It was, after all, the renowned Brown vs. Board of Education case that determined segregation itself has a deleterious effect on the education of schoolchildren. Today, in the greater Phoenix area, that same model is being applied to the specialty courts which unreasonably segregate defendants based upon skin color.


Profile: Carol Turoff is a former two-term member of the Commission on Appellate Court Appointments. During her eight years on the commission, she participated in the selection of four of the five current Arizona Supreme Court Justices as well as 17 judges on both Division I and II of the Arizona Court of Appeals. Appointed by two governors, Turoff served with three chairing Supreme Court Justices.

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