'Every Person has the Capacity for Change': A Criminal Court Judge Sees the Good

'Every Person has the Capacity for Change': A Criminal Court Judge Sees the Good

Judge Joseph Gubbay’s restorative justice framework offers an alternative to incarceration for New York City’s maladjusted youth. In the last seventeen years, he has saved thousands.

KINGS COUNTY, NEW YORK – Two leading factors contribute to a productive and crime-free life according to Judge Joseph Gubbay, Acting Supreme Court Justice in New York State and presiding Judge of the Brooklyn Treatment Court. The first is employment with a steady income. The second is a healthy and stable relationship with a significant other. Unfortunately for those incarcerated within the years these milestones coalesce for the first time, around 20-28 years old, the likelihood of achieving either plummets.

For seventeen years, Judge Gubbay has provided necessary support for adolescents and young adults to avoid jail. In 2003, he helped establish the first Misdemeanor Treatment Court in New York City. In 2004, he began presiding over the Screening Treatment and Enhancement Court, offering treatment to those convicted of criminal behavior rooted in drug dependency, but not directly tied to drug sale or possession. In 2016, he joined the Brooklyn Treatment Court as its presiding Judge, New York City’s first drug court connecting non-violent, substance-abusing defendants guilty of drug sale or possession to treatment as an alternative to incarceration. During his tenure in treatment courts, Judge Gubbay has steered thousands of cases away from the jail cell towards successful rehabilitation.

Prior, he served as the Executive Director of the Mayor’s Commission to Combat Police Corruption in New York City from 1996 to 1999 and was soon after appointed as a judge, overseeing everyday cases of theft, assault, and forgery.

Since its conception in 1996 in partnership with the Kings County District Attorney’s Office, the New York State Unified Court System, and the Center for Court Innovation, the Brooklyn Treatment Court has become a fixture in the state’s judicial landscape and broader. All 62 counties in New York have a mandated drug treatment court and the Unified Court System has fully absorbed its model as an alternative to incarceration.

Perpetrators who are chemically dependent, or drug addicted, “either get treated, do well, and have their case dismissed or they don’t do well and go to jail,” said Judge Gubbay, before adding that the program is “designed for success and not a track for failure.” The court gives second and third chances, and acknowledges that unlawful behavior to fuel a substance dependency is different than deep-seated criminality.

Brooklyn Justice Initiatives provide meaningful early diversion, pretrial supervised release, and post-conviction sentencing options. Photo from the Center of Court Innovation: https://www.courtinnovation.org.

“In the past, alternatives were given for non-violent crimes only,” said Judge Gubbay, like burglary of a commercial establishment; stealing property; robbery without weapon or injury; or drug possession or sale of a drug.

However, in 2016, he began presiding over a unique calendar, or docket of cases, within a restorative justice framework – a methodological approach to reconciling violent crime. “A radical change,” he emphasized. “If you want to address mass incarceration and societal reform, you’ve got to tackle violent crime. You can’t ignore it.”

Restorative justice seeks peacemaking between the “responsible party”, or defendant in legal lexicon, and “harmed party,” or victim, in a face-to-face meeting. The harmed party may use a surrogate if they do not want to be present.

Step one of the framework is preparing the responsible party, which takes weeks or months of sobering self-study. Defendants participate in a daily curriculum focused on introspection, building empathy, and emotional awareness. “Anger is complex,” said Mr. Gubbay, “It can mean a person is overwhelmed, out of control, jealous, prideful, rejected, or disappointed.” The harmed party receives appropriate restorative services.

Step two is the reconciliation meeting – named “The Circle” after traditional Native American talking circles devoted to open dialogue and empowerment – where the defendant issues an apology, listens to what the harmed party has to say, and together forge a path of mutual understanding.

After the Circle, the court monitors all agreed upon arrangements until completion. Judge Gubbay dismisses the most severe charges and the defendant pleads guilty to a lesser, non-violent crime. Each party moves on with their lives. In total, the restorative justice model is a minimum of one year.

Court-monitored treatment and restorative justice are critical veins within the larger anatomy of Therapeutic Jurisprudence (TJ), a philosophy identifying the law as a therapeutic agent that should support, or at least not harm, those it affects. Treating people who commit crimes with dignity, it argues, leads to improved well-being and positive outcomes.

Restorative justice is designed for adolescents, which “years ago meant 13-16 year olds,” said the Judge. “The term ‘adolescents’ has expanded; simply, it’s a program for young people.” He currently has about 20 active cases in the restorative justice program and 175 cases in treatment court.

Kings (Brooklyn) Criminal Court is located at 120 Schermerhorn Street, Brooklyn.

“I’ve always had an affinity for crime and law,” Judge Gubbay said in an unmistakable Northeast accent. He grew up in a suburb of New York City, earned an English degree at Tufts University, and received his J.D. from New York University School of Law.

From an early age, he observed his parents rooting for the underdog, frustrated with the prejudices against people of color and religious or political groups that went against Senator Joseph McCarthy’s agenda in the 1950’s to instill paranoia and mistrust in America. “Living through the Great Depression and the McCarthy era made them sensitive to these issues,” he said.

In one standout memory as a young boy, driving past a house at the bottom of his block, his father slowed the car down and pointed. “That fellow was hounded by McCarthy and it ruined his life!” he exclaimed. “I’ll never forget that,” said the Judge. The urge to resist unsubstantiated defamation of character runs in family blood.

On January 1st, 2020, New York implemented progressive bail reform that identified only serious, violent crimes to be eligible for monetary bail. Misdemeanors and non-violent felonies would not qualify; their alleged offenders free to go as their case made its way through court.

For criminal justice advocates, including Judge Gubbay who calls it a “seismic shift,” it was a significant win in the battle to keep people out of jail while awaiting trial. “We know jail in this country is violent and traumatizing. We know this country incarcerates more people per capita than anywhere else in the world and a disproportionate amount are poor people of color,” he said. “For adolescents with no criminal record, are jail sentences helping them or our society? The answer is no to both. For very few who exhibit sociopathic behavior from unmanageable mental illness or are past the point of rehabilitation, jail sentencing may be necessary, but that is a small sliver.”

“If you want to address mass incarceration and societal reform, you’ve got to tackle violent crime.
You can’t ignore it.”

Despite limited evidence, critics call the bill a threat to public safety because offenders released on their own recognizance are theoretically primed for further misconduct.

On April 3rd, the New York State Legislature and Governor Cuomo scaled back the reforms, effective July 1st, expanding cash bail eligibility to more cases, including sex crimes against children and anything involving death. But, the original agenda has not changed and with the rise of COVID-19, the push to reduce populations inside crowded, unsanitary jails has become even more consequential. As other states work out their own revisions, they will look to New York to see how it all plays out.

Lowering or eliminating cash bail equalizes economic disparities and honors the presumption of innocence, a long-standing tenet of criminal law. “Imagine you’re charged with a crime and don’t have the money,” said Judge Gubbay. “You’re sitting in jail and losing hope. You’re worn down and exposed to violence. After a while, your lawyer says you’re free to go if you plead guilty because you’ve already satisfied the proposed sentence. If you’re innocent, this presents an intense moral dilemma. Do you get out of a dangerous situation or do you stand by a principle? That’s a choice no one should have to make.”

Fortunately, restorative justice operates post-plea, meaning cases diverted to its model have already received consent from the harmed party and district attorney, bringing with them no dispute over guilt or innocence. “Yes, it’s my DNA. No, it’s not my DNA! Yes, they’re my fingerprints. No, they’re not my fingerprints! You confessed. No, I didn’t! You had Miranda warnings. No, I didn’t!” he rattled off. In a contested case, a fluid proceeding is more difficult.

His courthouse closed on March 15th in response to the then-budding pandemic, which he says has turned the world of criminal justice upside down. Without the ability to assemble juries or have proper trials, justice is delayed for many.

Reassuring his active members of the Brooklyn Treatment Court that they would not be abandoned became an immediate priority for the Judge, whose court quickly turned to tele-health counseling. Curriculum and weekly meetings with case managers and counselors moved online. Routine drug tests became infrequent or were suspended to minimize human contact.

“It is critical to stay connected,” he said, “and to be empathetic to challenges a defendant may be facing.” When several participants of a residential live-in program left treatment to check in on loved ones, Judge Gubbay chose not to terminate their court mandate. Instead, his staff helped find housing and outpatient options so as to not break continuity of treatment.

Judge Gubbay always knew he wanted to work in a courtroom. Photo from the Center of Court Innovation: https://www.courtinnovation.org.

The Coronavirus Aid, Relief, and Economic Security (CARES) Act passed by Congress in March gave federal judges expanded authority to use remote proceedings in a variety of pretrial and post-conviction criminal matters. State governments, too, relaxed procedural rules to optimize social distancing. “I’m in my chambers right now, and we are working towards more and more in-person appearances, but two days ago I was at home,” he told me over the phone. The Judge has heard more than 450 remote proceedings.

He attributes the overwhelming success of his court to the daily support from his team of clinicians, case managers, and court staff, and to the trusted guidance of Chief Judge Janet DiFiore and Administrative Judge for Criminal Matters, Mathew D’Emic.

“Our treatment court judges and staff have leveraged technology to assess and admit new participants, monitor compliance and progress, connect participants with needed services and even conduct a number of virtual graduations,” DiFore said in a Brooklyn Daily Eagle article published on August 25th.

Remote proceedings are not spared the usual technological hiccups – WiFi can be shaky and someone may not be able to get their camera working – but with enough patience and tenacity, they are a success. All key players log onto Skype for Business. “The court reporter, interpreter, prosecutor, district attorney, defendant – all at home!” Judge Gubbay said. To his delight, pixelated screens and fragmented speech have not interfered with the quality of treatment. “It’s as emotional and tear-filled as if everyone were in the same room. The electronic veil can be lifted,” he said, to reveal genuine human connection – what treatment court is all about.

“Some of these changes are absolutely going to continue after the pandemic,” he said. Remote court allows people to be “more comfortable in their own home, surrounded by their belongings, unlike a courtroom which is an intimidating experience.” Virtual attendance provides a more convenient option for those with child-care responsibilities or poor access to transportation, too.

Offering alternatives to incarceration is what the U.S. criminal justice system gets right according to the Judge. There are dedicated tracks within Brooklyn Treatment Court for veterans; victims of domestic violence or human trafficking; driving while intoxicated; and other specialized groups. “There are ways to redeem yourself,” he said.

Where the system fails, and what societal reform hinges on, is what happens during and after incarceration. By not providing meaningful education or vocational training in jail, he argues, we are doing more harm than good. Similarly, if a person reentering society has no robust programs to lean on for housing, medical treatment, and job assistance, then breaking the cycle of recidivism becomes less likely.

After decades inside the American courthouse, Judge Joseph Gubbay understands there are two separate systems of justice: a system for those who have and a system for those who have not. He sees the gap between them and pours himself into it, hoping one day it will close.

“Every person has the capacity to change for the better and everyone should be given a second and maybe even a third or fourth chance to make themselves and the people they have hurt whole again,” he said vehemently. “The vast majority of humans are decent and good, and it’s their goodwill which will carry the day.”