Criminal Justice: Jail or Sterilization?

Nancy Hernandez, 21, is a long way from being Santa Barbara's mother of the year. Estranged from her husband, by whom she has one child, she has lately been living with another man, by whom she has a second child. Not only is her lover, Joseph Sanchez, a narcotics addict, but last month Nancy pleaded guilty to the charge of being in a place (Sanchez's apartment) where narcotics were unlawfully used.

Those facts bothered Santa Barbara Municipal Court Judge Frank P. Kearney. But did they justify his sentence of six months in jail, or probation if Nancy submitted to sterilization?

To the shock of her court-appointed lawyer, Louis Renga, who had not yet arrived at her probation hearing, Nancy accepted Judge Kearney's offer of sterilization—only to be dissuaded later by her family, her doctor and a local priest. When newspapers broke the story, more than 300 citizens offered to sign a petition declaring that sterilization is hardly a cure for Nancy's problems. Calling Judge Kearney's offer "cruel and unusual punishment," Lawyer Renga also pointed out that California law specifies "reasonable" conditions for probation toward the end that "rehabilitation will be served."

Last week Nancy stuck to her choice of jail over sterilization. Duly revoking her probation, Judge Kearney relented only to the extent of giving her three months rather than six months in jail. "I'm not trying to be a Nazi," insisted the judge. "It seemed to me that she should not have more children because of her propensity to live an immoral life." Countered Lawyer Renga: "Sure she made a mistake—and he wants to kill her insides for it."

In fact, Nancy spent only about five hours in jail. Still fighting hard, Renga wasted no time obtaining a writ of beas corpus that freed Nancy on own recognizance until a higher court reviews her case this week. Whatever her fate, Judge Kearney has triggered public debate in California that is likely to rage for quite awhile.