- AT PANEL HEARING: Proctor and lawyer Austin Porter (right).
I attended the hearing last week held by a three-member panel of the Judicial Discipline and Disability Commission to decide whether Fifth Division Circuit Judge Willard Proctor Jr., should remain on the bench.
Witnesses testified to so many violations of the conduct we expect from judges that it will be hard to do more than mention them in this short space. Most arose from the peculiarity in Arkansas law that allows only three judges in the state to supervise their own probationers. All three are in Pulaski County, and of them, only Proctor has elected to exercise the granted authority.
He called his probation program Cycle Breakers, and in the beginning, ran it entirely from his court. When certain unseemly aspects of that arrangement arose, he created a non-profit corporation called Cycle Breakers Inc. Much of the hearing focused on which Cycle Breakers was which. One witness for the commission testified that there was no “arm's-length separation” between the two. Another said financial records showed they were one and the same.
So co-mingling legitimate probation fees (money that belonged to the county) with other court-ordered fees and fines (money collected by a non-profit corporation) was one problem. For the judge to use his state-granted powers to order probationers to pay money to a private corporation was another problem – and a big one.
Those were not the only novelties in Proctor's court. He sealed the files on some probationers, effectively closing their cases, but kept them on something he called “civil probation.” Civil probationers were required to keep paying fees to Cycle Breakers Inc. One of the many problems with that is that there is no provision in Arkansas law for civil probation in courts like Proctor's.
Another problem was Proctor's reported lack of judicial temperament. Several witnesses described instances when he ranted, screamed, and threatened critics and members of his staff.
For his part, Proctor and witnesses he called talked about how much he cared for his probationers and wanted them to succeed. That too became a problem, however, because the roles of judge and probation manager are utterly incompatible. That was demonstrated most clearly when one witness testified that Proctor had told defendants in his court, “The prosecutor wants to send you to prison, but I want to help you.”
There was abundant testimony about the judge's improper interactions with people he'd sentenced to probation: how he lectured at probation meetings, let some probationers work in his office and ate lunch with them, gave probationers rides in his car and even took some home, and helped baptize some at his church.
The picture that emerged was of a smart and well-intentioned young man who, once elected to the powerful position of judge, gladly grasped the additional power that was granted him to oversee probationers. And that's what did him in.
He told the panel that the operations of his court were not secret. Prosecuting attorneys, defense attorneys, other judges, the county clerk, and members of the quorum court were all aware of what he was doing. He said he figured someone would have told him if what he was doing was wrong.
That did happen, though, because of the unusual law, bit by bit, and confusedly. And, bit by bit, Proctor had adapted his program. But nothing he did worked, because the hybrid responsibilities accorded to his court should never have been allowed in the first place, and any attempt to marry them was both unconstitutional and doomed.
Not just Proctor, but officials of all three branches of government bear responsibility for this mess. The legislature should never have passed a law that gave a few courts from historically black districts authority over probationers, because probation supervision is a role of the executive branch. It is with good reason that the powers of the judiciary, vast and independent as they are, are limited to the courtroom.
Probationers from every court except Proctor's are overseen by a division of the Arkansas Department of Community Correction, which is under the governor. To merge responsibility for probation with the responsibilities of the judiciary was as wrong-headed as it would be to allow a judge to work simultaneously as a police officer or social worker.
That conflict was most apparent when Proctor acknowledged that he had once tried to help a probationer by keeping him at his home, but failing that, ordered the man back to court and sentenced him to prison. The jobs of judge and probation manager are inherently at odds.
Proctor himself should have recognized the many conflicts that ensnared him. He didn't, and he needs to be removed from office because of it. But he should not bear this disgrace alone. The “separation of powers” clause in the state Constitution is clear and should have been enforced before the situation in Fifth Division Court reached this extreme.
While the Judicial Discipline and Disability Commission considers what to do about Proctor, others in state government must finally consider what to do about the law that stands in defiance of part of our constitution.