Wall Street Journal Article

Rule of Law:
Crime and Creative Punishment
By Judy Farah

03/15/1995
The Wall Street Journal
Page A15
(Copyright (c) 1995, Dow Jones & Co., Inc.)

Judge Howard Broadman of
California's Tulare County Superior Court thinks there is something radically
wrong with the current judicial system, and he is willing to test the
boundaries of sentencing procedures to change it. For his efforts, he has
been appealed, applauded, criticized and shot at. He gave a beer-thief
probation on condition that he wear a T-shirt proclaiming his crime. He
ordered illiterates to learn to read. A man convicted of hitting a woman was
told to donate his car to the local battered women's shelter. In his
best-known case, Darlene Johnson, a pregnant mother of four, was convicted of
beating two of her daughters with a belt and electrical cord. Judge Broadman
asked her if she would be willing to be implanted with the contraceptive
Norplant as a condition of probation. He said he had a duty to protect her
"un-conceived" children. To avoid prison, Johnson agreed to the unusual
sentencing suggestion. But then she violated probation by using cocaine and
was ordered to prison anyway. The Norplant issue became moot, but not before
it secured Judge Broadman's controversial reputation. He was soon featured on
"60 Minutes" and in "People" magazine."  I think my decisions are mainline,"
Judge Broadman says. "Generally, I think I put some issues out for the public
to discuss. I made decisions that I thought were right, but people grabbed
them and debated them." Judge Broadman has again been in the news in
California, this time over the case of Levert Hooks, convicted of raping two
teen-age girls after being released from prison for a previous sexual
assault. In January the judge considered withholding AIDS treatment from
Hooks, who is HIV-positive, because it would cost taxpayers approximately
$100,000 a year. The judge thought the money could be better spent for
rehabilitation and drug counseling."  In this case I have a perpetrator of a
heinous and despicable crime who has no hope or chance of ever leaving
prison, yet hundreds of thousands of dollars are going to be spent on his
medical care for the purpose to extend his dying. I think this is a
misallocation of resources," Judge Broadman said at sentencing. He asked:
"Should we be spending our resources to lengthen his dying or should we be
using the resources on someone else?" He eventually gave Hooks a traditional
sentence -- 50 years in prison with medical treatment.  But there are times,
Judge Broadman said, when the applicable punishment under the Penal Code is
insufficient. "The current system is broken, no question. Is it right for a
judge to sit back and do the same sentencing? I think not. That's the
definition of insanity."  Judge Broadman's actions have helped reopen the
debate over whether a judge's role is to follow and apply the law strictly,
or test its strengths and boundaries at a time when criminals are testing our
capacity for tolerance. These days it seems the public not only wants tougher
and harsher penalties but also innovative punishment that fits the crime.
Remember the widespread support for the caning of American Michael Fay in
Singapore for vandalism?  But just how far should a judge go? Although most of
the public seemed to be behind Judge Broadman in the Norplant case, critics
say he may be paving the way for an even bigger offense than the ones
committed by the criminals he sentences -- the intrusion of government into
individual rights. The American Civil Liberties Union of Northern California
filed a protest against him in the Norplant case in 1991. The ACLU claimed
his attempt to control Johnson's reproductive rights violated her right to
privacy and did nothing to aid in her rehabilitation. The ACLU also monitored
the Hooks case."  There's a role for creative sentencing, [but] we need to
think of the humanity and individuality of the offender and fashion the
conditions that will truly benefit the individual," says ACLU staff attorney
Margaret Crosby. "We need to rehabilitate, not violate their constitutional
rights."  Judge Broadman does not believe he is violating anyone's rights.
Anytime someone is sent to prison, he says, his rights are denied. He
suggests he is scrutinized more closely because he is a conservative
Republican.  When so-called liberal judges make innovative rulings, he says --
citing the Miranda warnings and the exclusionary rule as examples -- they are
lauded. When he tried to prevent Darlene Johnson from having any more
children to beat, a foe of the decision fired several shots at him, missing
the judge's head by inches.  This center of controversy sits in a courthouse in
Visalia, a low-income farming community of 75,000 people far from any big
city. By all accounts, Judge Broadman is a hard-working judge who studies the
law and dutifully applies it whether he is handling a burglary or murder
case.  Tulare County Deputy District Attorney Chris Gray Deischl, who
prosecuted Hooks, says Judge Broadman goes to great lengths to make hard
legal decisions. "In the vast majority of cases he does traditional
sentencing. Some judges feel it's their job to just interpret and uphold the
law. Some judges feel they should never test the boundaries. He's an
idealist. He's bold enough to do that," Ms. Deischl says.  Attorney Charles
Rothbaum defended both Johnson and Hooks before Judge Broadman. He concedes
that Judge Broadman offered his clients breaks in sentencing that he would
not have gotten from other judges. But, Mr. Rothbaum wonders, if a judge
invades one person's rights, even those of the most heinous criminal, is he
setting a precedent for invading the rights of all of us?"  We all know the
kind of bad things that people do that get arrested. The court is really
witness to one long continuum of man's inhumanity to man," Mr. Rothbaum says.
"But does that mean that our courts and our governments and our policies are
to stoop to the same level of inhumanity as the worst of its citizens -- the
worst of its citizens who end up being defendants in criminal cases?"  "He is
courageous," says Tulare County Public Defender Neal Pereira. "He tries to be
a creative judge. He tries to make a difference. He doesn't always do it. He
gets himself into controversial positions. But to him, and a lot of people,
the system clearly isn't working. As a judge, you have great power to affect
people's lives. And you have to work within the framework of the law. At
least he's trying. Other judges would not."---Ms. Farah is a criminal justice
reporter in Sacramento, Calif.