Mar. 5, 1995 Wall St. Journal

Rule of Law:
Crime and Creative Punishment
By Judy Farah

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.