Judge Stirs Debate With Ordering of Birth Control : Courts: A mother of four agrees to have a contraceptive implant in pleading guilty to child abuse. Critics call it unconstitutional.

In his five years on the bench, Tulare County Superior Court Judge Howard R. Broadman has raised eyebrows by ordering convicts to learn to read, donate their cars to charity or wear T-shirts proclaiming their guilt.

But none of his earlier alternative sentencing experiments prepared him for the controversy generated when he asked Darlene Johnson, a pregnant, unmarried 27-year-old mother of four, to accept a new, five-year birth-control implant as a condition of probation after pleading guilty last week to child abuse.

Judging from letters to newspapers and interviews with people on the street, Broadman’s offer--the first judicial use of the new contraceptive technology that some people fear may be imposed on poor and minority women--has popular support in this southern San Joaquin Valley farming community.

But civil libertarians from New York to San Francisco--and now the defendant and the public defender who is representing her--complain that Broadman’s order is abusive and probably unconstitutional.

Broadman, 40, a Detroit native and University of Wisconsin graduate, has agreed to reconsider his decision today, but the civil rights debate he sparked is unlikely to die soon.

The controversy is particularly hot because Johnson, the defendant, is black, and Broadman, the judge, is white. A similar debate raged in Philadelphia last month after the Philadelphia Inquirer suggested that poor, black women make use of the new contraceptive, igniting protests inside and outside of the paper, forcing it to apologize.

“The government is saying we want a certain class of people not to breed,” said Visalia lawyer Charles Rothbaum, who represents Johnson but was not able to attend the hearing when she agreed to Broadman’s offer. She now says she was unaware of exactly what she was agreeing to. “It smacks of population control. I’m outraged,” Rothbaum said.

Rachael Pine of the Reproductive Freedom Project of the American Civil Liberties Union in New York agreed. She called Broadman’s proposal “plainly unconstitutional.”

Lorri Foster of the Central Valley Planned Parenthood office in Fresno, 45 miles north of here, said she had “serious reservations” about the use of contraceptives as a condition of probation and expects the order to be challenged on appeal if Broadman does not reconsider.

Broadman himself declined to discuss the matter while considering Rothbaum’s petition to reconsider the case. Before the petition was filed, however, he was quoted by one local reporter as saying the probation arrangement was “appropriate.”

“This is a woman who beat the tar out of her children,” he said.

Johnson, a native of nearby Tulare who has a history of convictions for forgery, battery and credit-card fraud, pleaded guilty to three felony counts of beating two of her children, 4 and 6 years old, with a belt and an extension cord last September.

Court records state the children had scars and wounds on their backs, arms, necks and legs. Her three youngest children are now in foster homes; the eldest, 11, is staying with Johnson’s mother.

Johnson’s fiance, John Washington, has said, “She may have tanned their bacon once because they were unruly,” but denies she ever beat the girls.

Johnson, who is now forbidden by the judge to talk publicly, told Washington and Rothbaum that she believes she is innocent and pleaded guilty only to avoid a trial and to get a lighter sentence.

She is now serving a year in Tulare County jail. After her release, which could come in a few months, she agreed to spend three more years on probation with a Norplant contraceptive implanted in her arm.

Broadman has also ordered Johnson to quit smoking during her pregnancy.

Johnson has been quoted saying she did not fully understand what she had agreed to do when Broadman asked her if she would accept birth control as a condition of probation.

The transcript of the Jan. 2 hearing at which Broadman ordered birth control for Johnson shows the judge described the implant as, “a thing that you put into your arm and it lasts for five years. It’s like birth control pills, except you don’t have to take them every day.”

When Johnson asked if the implant could hurt her, Broadman said that the device had just been approved by the Food and Drug Administration.

Broadman also told the defendant he would reconsider the requirement after she completes court-ordered parenting classes. “But at this juncture,” he added, “with your permission, I’m going to impose that as a condition of probation.”

The Norplant device, six thin rubber tubes that slowly release a synthetic hormone to prevent pregnancy for up to five years, was approved last month by the U.S. Food and Drug Administration for sale beginning next month.

Norplant, which must be surgically inserted beneath the skin of a woman’s arm, is the first new contraceptive approved for distribution in the United States in a quarter-century.

But enthusiasm over its introduction was tempered by concerns over side effects, ranging from acne to irregular menstrual bleeding, and the prospect of it being imposed coercively on abusive, addicted and poor women, or others whom society deems unable to properly care for children.

“The use of Norplant for any kind of a coercive purpose is something I am totally against,” said Sheldon Segal of the Rockefeller Foundation, the originator of implantable birth-control technology. “I consider it a gross misuse of the method.”

This is not the first case in which Broadman has tried to impose Norplant as a condition of probation. He made a similar offer to a drug-addicted woman last year, the Fresno Bee reported, but the woman went to prison instead.

In the past, Broadman’s innovative sentencing alternatives have come in a variety of forms. He let a child molester serve time at home, but only if he posted a sign outside his house that said, “Do not enter, I am under house arrest.”

An alcoholic was told to come before the judge and swallow Antabuse, a drug that would make the defendant violently ill if he drank alcohol. An illiterate drug abuser was ordered to learn to read. Drunk drivers have had their cars impounded after a second offense, and a man who stole a boat was forced to give his own car to the county to see how it feels to lose a prized possession.

His creativity even extends outside criminal court. In one civil divorce case, Broadman ordered ex-spouses to take turns staying in their former home so that their children would not have their lives disrupted by shuttling back and forth between parents.

And when he learned that the county, with 308,000 residents, was owed fines by 6,000 of those people, Broadman ordered up three full-page newspaper ads listing everyone owing money to the Municipal Court. The court collected $371,000 in the next five months.