Saturday, May 14, 2005


Every Saturday morning on Albuquerque's KKOB, Stuart Stein, an estate planning and probate attorney, has an hour-long program on that subject. The show is very interesting and the host is pleasant and has a good sense of humor. Today he referred to the estate tax and the uncertainty of how long the exemptions will continue (apparently Congress is doing this by the decade and watching the results). That reminded me of the death tax (which is out of our reach, for sure).

The headline here assumes the question, but let us state the proposal this way: "ELIMINATE THE ESTATE TAX NOW." We contend that the estate tax is not fair, if the deceased has paid taxes on the money and property she wants to leave to some survivor (church people, nephews, family members). Has the capital gains tax been paid on the property; and if not, then it can be paid at death without an estate tax. Has the income tax been paid on the money in the bank; and if not, then it can be paid at death without an estate tax. Beyond that, why tax the wealth again, that is, make death a taxable event?

The eighty year old multimillionaire who earns $10 million a year should be encouraged to continue earning (producing), if that is what she wants to do with her life. The more production, the more goods for the world to share; and if the production is of useful things that make life better, so much the better. The fifty year old multimillionaire who earns millions a year should be encouraged to continue producing. Why should she be discouraged by the thought that she can work all her life and build up wealth, but then she cannot leave it to people or animals of her choice? Why should she be forced to pay for planning (no disrespect meant to any attorney) to avoid this tax which will be imposed upon her death? This tax is counterproductive, as well as unfair.

Many today say we should eliminate the death tax, but they do not go further and say that the tax should be eliminated only on that part of the estate which has already been taxed. This distinction is important. Many of those who oppose the elimination of the tax point out that the deceased's estate has been sheltered from income taxes. Advocates of elimination of the death tax should insist that they are for the elimination of the tax on only that portion of the estate which has already been taxed.

We are not talking here about taxes on real and personal property based on value. If the rich woman leaves a large ranch and mansion to her nephews or widower, it will continue to be subject to ad valorem taxes.

There is nothing new or novel in this post; it is elementary. However, as President Nixon said, "Let us stop shouting so that we can hear each other." Let us drop the labels and discuss the issues.

Thursday, May 12, 2005


The report of the arrest this week of a Los Lunas man for DWI (20 arrests; 7 convictions) has triggered outrage. KKOB radio Tuesday devoted over an hour to a discussion of a proposal by the host that the penalty for fourth offense DWI be mandatory life imprisonment. He suggested a mandatory sentence, so we do not have to worry about the Judge, ". . . it takes the idiot Judge out of the equation."

Who would be in the equation under such a proposal? First, the police officer who makes a traffic stop of a suspect. Does he make the arrest, knowing that Joe Sixpack will get life in prison? Next, the District Attorney. Does he prosecute Joe Sixpack for DWI, knowing that the punishment is mandatory life in prison? Next is the jury. Do twelve citizens unanimously agree to send Joe Sixpack to the New Mexico State Penitentiary for the remainder of his life?

One caller said do it on the third offense, do not wait for the fourth. The host said words to the effect, "I can go with that." One caller said take him (not clear whether he meant Rodarte, the accused, or anyone convicted of four DWI's) — take him out to the West mesa and shoot him. The host considered that proposal frivolous.

Rachel Conner, the State DWI Czar, on KKOB earlier, put her finger on the problem. She said, "It is very difficult to change their behavior." She was calm and rational, and right. The public is frustrated, and demanding "tougher laws."

A partial, but substantial solution, would be to provide the resources to the Courts for technology options in sentencing for DWI. Give the Judges the power (eliminate the mandatory provisions from all sentencing), and the resources, and we may expect that the Judges will do the right thing.

In the case of punishment for simple DWI, start with conditions of release (bail). One arrested for DWI and released on bail could be required to wear an ankle bracelet that would detect the blood alcohol content and report it to the computer. If the Judge sets a condition that the accused abstain pending trial, that could be enforced by the bracelet and computer monitoring. $5.00 to $10.00 per day should do the job. No need to place an ignition interlock, nor a "boot" on the automobile — put a bracelet on the alleged offender.

If the accused is convicted, she may be placed on a bracelet and home "tag" and allowed to have booze at home, but not be permitted outside the home with a prohibited blood alcohol content. We are looking at less than $10.00 per day, and ultimately less as use is expanded. The Judge may decide to prohibit some offenders from consuming alcohol. That is practical, with the alcohol bracelet. This technology is now in use and available. Give the Judges the resources, and the discretion, and we may expect a great improvement in the administration of this part of the criminal justice system.