By J. Michael Kavanaugh Metropolitan Court Judge
The special report on DWI in New Mexico published as a 28 page insert in the Sunday Journal of May 5 might have been a more complete project if it had been 30 pages instead. While some parts of the report were well done and quite inspirational, other parts took on the feel of an unfair, incomplete, lengthy diatribe which misrepresented the issues and failed to give credit where credit is due.
The stories of lives lost and hearts broken are compelling insights into the human tragedy that this terrible act of irresponsibility causes. In this respect the report could have been thousands of pages long and still only scratched the surface of suffering victims endure.
Victims have a right to feel pain, anger, frustration and any other emotion that besets them when their lives have been shattered by such a senseless act. Victims don't have to be fair. Newspapers, however, should hold themselves to a different standard.
Progress in the fight against DWI in New Mexico has been made over the last 10 years and the people in our government who share in the responsibility for addressing this scourge on our society deserve more than the finger of blame pointed at them. For the Journal to suggest that the courts, the Legislature, and law enforcement are complacent when it comes to DWI enforcement is simply to ignore the energy and commitment that these people bring to their duties.
The courts, judges in particular, are criticized for every failure or perceived failure of the "system" to deliver swift and sure punishment. Judges are criticized for not being partial to the victims, to the prosecutors and to the law enforcement officers in DWI cases.
Although it may be understandable that the general public has this misunderstanding of the legal system of our country it is inexcusable that a newspaper would suggest that judges have a duty to be partial to those parties. If a judge takes the bench with the intention to find someone guilty and to punish them as quickly as possible, I say that judge has no business being a judge.
Being impartial does not mean that we are taking the side of the accused either. Our system of justice requires that the burden for proving a criminal case rests solely with the state. It would be unethical for a judge to take sides in the process. When judges hold the state to that burden and the state fails to meet that burden, then the dismissal of that case represents judicial duty at it most challenging.
Judges do not dismiss cases lightly. We dismiss cases whenever, in our judgment, the state has failed to meet its burden or when the procedure is defective in a significant way. Some people call those defective processes technicalities. Our Constitution requires that the processes be correct and stringently enforced. This requirement is a major example of the greatness of the Constitution.
There is no presumption of guilt in our country. Some of our critics fervently believe that judges who uphold the presumption of innocence are somehow in collusion with the defendants and their defense attorneys. Ethical judges apply the Constitution on each and every matter before them without exception and without regard to external criticism.
Much hyperbole about conviction rates is included in the report. In my opinion judges have no business setting targets for numbers of convictions in their courtrooms. While the problems that lead to dismissals are important and should be addressed by those responsible, judges are required to make decisions on a case by case basis and should not allow conviction rate pressures to affect their decisions.
Judges who allow that pressure to get to them have allowed interest group political pressure to infect their judicial impartiality. That's wrong.
In 1992, 274 people died as a result of alcohol-related crashes. The last four were Nadine and Bob Milford's family. In 2001, 201 people were killed as a result of alcohol related crashes. That's 201 people too many but New Mexico has gone from being the worst state in the nation to number 46 in that category.
In the first three months of 2002 13 fewer people have died than the same period last year, according to the New Mexico Traffic Safety Bureau. Since 1992 the population of our state has gone up well over 100,000. Although we should never be satisfied until no one dies these numbers do show improvement.
Most disappointing in the report was the failure of the Journal to give any recognition to the Bernalillo County Metropolitan DWI/Drug Court program for the good work that is being done toward reducing DWI recidivism and promoting public safety. It is simply not fair to criticize the court without at the same time acknowledging the positive things the court is doing in response to this serious community problem.
Our DWI/Drug Court Program has been recognized as the leading drug court of its type in the nation. In 2000 the United States Department of Justice, in conjunction with the National Association of Drug Court Professionals named our program the first and only DUI/Drug Court Mentor Court in the country. In that capacity we have hosted over 100 different drug court teams providing training and mentorship as they plan and develop their programs.
Judge Marie Baca and I both serve as judicial faculty of the National Drug Court Institute and Mark Pickle and Jim Stoker of our team are both considered to be national experts. I serve on the board of directors of NADCP and have been invited to speak to communities interested in DUI/Drug Courts from Alaska to Florida and several other states in between.
I have been appointed by the board of directors to chair a subcommittee charged with the responsibility of developing a national strategy for DUI/Drug Courts, Nadine Milford and I have been invited to make a presentation to 3000 people at the national conference in Washington, D.C., in June.
Metro Court's DWI/Drug Court has graduated 323 individuals over the past 5 years and only 10 percent have been rearrested for DWI. That compares with recidivism rates of between 25 and 40 percent for those who have not graduated from our program. Drug court works. It is working in Albuquerque.
There are many complex reasons why New Mexico's DWI problem is as bad as it is. Ultimately it is a lack of personal responsibility on the part of the driver who gets behind the wheel of a vehicle to drive while impaired. There is no single solution to the problem. A comprehensive approach will work best to make our streets safer. Those who are working toward that end should be encouraged with positive reinforcement. Metro Court's DWI/Drug Court is doing its best to make offenders accountable for their actions, bringing about a behavioral change that ends repeat offenses, stops the abuse of alcohol and protects the public while recognizing the victims of DWI.
Our drug court is changing lives for the better. But don't take my word for it, ask Nadine Milford what she thinks about drug court.
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