Giving Drug Offenders A Second Chance Is A “Full-Time Assignment”

By Clarissa Sosin

Queens Criminal Court Judge Marcia P. Hirsch inside her chambers in Kew Gardens courthouse. Eagle photo by Clarissa Sosin.

Eagle: How long have you presided over the Queens Treatment Court?

Judge Hirsch: I was appointed to the bench in May of 2005. I met with Judge (Leslie) Leach and I brought a copy of my resume. I had been an elected member of my local community’s board of education, school board for nine years when I came here. I had also just finished 10 years at the New York State Commission of Housing and Community Renewal. I was the General Counsel and the Deputy Commissioner for Housing. I was on my community’s drug and alcohol task force. He said to me “I think I have a place for you,” he said, “I really think that you’d enjoy it and I think that you’d be really good at it.” I had a regular assignment first because another judge was doing this Treatment Court part and they were getting ready to open the Mental Health Court part and I went to all the training for the Mental Health Court part because I thought I would be the backup on mental health and then some personnel changes took place and I was given the whole thing by October. I had the drug court and then I actually did open the mental health court in November the next month. And I've been here ever since. And then I opened up all the other parts since then. So I opened up the DWI Treatment Court in 2010. No, earlier than 2010, 2008. And we opened it as a pilot project. DA Brown was the first district attorney within the city of New York to agree to have a DWI treatment court. So we opened that as a pilot project and it became very successful so we kept that. Then I opened the Veterans Court in 2010. Then we opened the Drug Diversion Court, they relaxed the harsh Rockefeller drug laws, and they allowed people who had long criminal records and had never been given treatment the opportunity to get treatment in a drug court setting. A lot of the people that you saw today were Drug Diversion Court people. I do five different courts.

Eagle: They are all under the umbrella of Treatment Court, but you only see felonies?

Judge Hirsch: Correct.

Eagle: What's the difference between drug court and drug diversion court?

Judge Hirsch: Drug court is for first time felons. Drug Diversion Court is for people who have long criminal histories and can be predicate felons. When the legislature changed the harsh Rockefeller drug laws, they gave the judge a lot of discretion. Those people usually stay with me like a minimum of 18 months, but I have discretion. That's also where I take some people who have serious immigration consequences, who would be deported because of some of their felony drug arrests, that's a mechanism to do no plea diversion with some people who -- I have some DACA people -- and people that otherwise could be facing harsh immigration consequences if they were to plea. By doing “no plea diversion,” hopefully, they get, you know, treatment and their felony is sealed and dismissed. If they cooperate and if they do everything they have to do.

Eagle: And in all the other courts you have to plead guilty before you can join the court, right?

Judge Hirsch: In drug diversion, if you're a citizen, you do, but if you have serious immigration consequences, then, you do not.

Eagle: And that's up to you?

Judge Hirsch: The cases that come to me, they are. We have to comply with Article 216 of the statute. They have to be assessed and they need to be assessed by a professional social worker. I have people on my staff, who have the degrees, that they can assess them and see if they qualify. If the reason for the crime that they committed was a substance abuse issue, that's the underlying foundation that would then allow them to come in. It doesn't necessarily have to be drug crime. It can be robbery, it can be credit card fraud, it can be something that they needed money to buy drugs. There has to be a nexus to a substance abuse issue.

Eagle: What are some of the changes that you've seen over the years?

Judge Hirsch: A lot, a lot of changes. Just in this area, the use of Medication Assisted Treatment (MAT) is really increased from when I first started here till now. That's largely in part because of the opioid crisis and because of the greater acceptance of MAT. In the beginning, there was resistance. People and professionals in the field, felt that people who are being treated for substance abuse shouldn't be replacing one substance with another substance -- Methadone or Suboxone. Now, in light of the opioid crisis, there's been a real shift. The greater acceptance of MAT has been one of the biggest but that's also been driven by the opioid crisis, which has gotten worse from when I first took the bench in 2005.

Eagle: How has the opioid crisis shown up in your courtroom?

Judge Hirsch: More people addicted to heroin, oxycodone, Oxycontin, and now the fact that the fentanyls been introduced into the drug supply here I mean, the consequences are really serious. People can overdose or die like that. I remember asking her parents (of someone in the court) if they had NARCAN at home. Ten years ago I would have never asked that question. But my goal is to keep people alive so I will ask "Do you, does your family, have NARCAN at home?" Because you can go into your pharmacy and get NARCAN so I'm going to be sure that we keep you alive in case you slip up and overdose. That's different.

Eagle: Your courtroom has a very different feel. Can you tell me about it? You even have a “Dress for Success” sign at the entrance.

Judge Hirsch: When you go to a lot of courtrooms they have "no" signs. Big "no,” -- no cell phones, no food, no reading the newspaper, no, a whole litany of things like that. It actually comes from being a trauma informed courtroom. We got a grant, probably six years ago. It was a million dollar grant to do trauma informed care across all five of my courts. Our goal is not to traumatize the people who come before us. Court rooms can be scary and a lot of the people who've had bad experiences in court may not be willing to talk or to open up or to tell us what was going on in treatment and that especially pertains to my mental health population. My mental health population could also struggle with substance abuse that can be co-occurring as well. We really want people to feel comfortable and we want people to feel like the people here care about them. And that we want them to feel comfortable talking and disclosing about issues. They talk to me from there, I don't call them up to the bench. They talk to me from there so whatever they say, they say in open court, and we want the courtroom to feel like a safe space. That's why the environment is different than in the other court rooms that you go into.

Eagle: And it's very collaborative.

Judge Hirsch: Well, that's part of the whole thing with treatment court, we work as a team. The prosecutor, the defense attorney, the case managers, my staff, we all work collaboratively as a team. And that's why it works. I came into an existing team and a lot of the people are still here. We've seen some people come and go over the past 13 years, but for the most part, we're a team and we work together, we come up with decisions. But the judge has the final say. Sometimes I will disagree with my team. Sometimes I'll want to give someone another chance. And I do what I think is best. Sometimes I will overrule the rest of the team. I get to do that. Like today with the gentleman who we gave another chance to, I was ready to sentence him. I had, the paperwork was all there and everything else. But he had really said he did not want another treatment program. He had done other treatments and didn't want to do it. But, then when I started talking to him about it, he reconsidered. I will give him another shot at treatment. Even the district attorney said "I really want him to have another shot at treatment." He had a lot of trauma in his past and he has some serious mental illness issues. I hate when people get thrown out of residential programs, like the cell phone issue you heard about, or just for the rule infraction stuff. Bringing drugs into a program is a non-starter. Okay, that jeopardizes everybody else's recovery. That's bad. But the little things like the cell phone or the little issues, I really prefer if the programs can kind of work that out, or have the person come to court and us work it out, but discharging someone for the little infractions, I think it's difficult. If sometimes they just have to find another program that's a little less stringent, but it's those things where it really takes some patience and some collaboration to find the right program for the right person.

Eagle: How are peer advocates assigned?

Judge Hirsch: They're assigned through the treatment providers. We also have the one peer advocate over at TASC, our case management arm as well. So they are being used a lot more in, throughout all the programs right now.

Eagle: Are there any changes around mental health?

Judge Hirsch: Well 20 years or 30 years ago, you would have seen more of these people institutionalized. Then when all of the lawsuits and changes in regulations came about, there was a movement to keep people in their home communities and to give them outpatient care and treatment. You are seeing more of that -- day treatment programs, partial hospitalization programs. Also with the improvement in medication, another thing that you're seeing now with the mental health population are the introduction of the long-term injectable medications, rather than taking oral medications, some diagnoses, there are injectable. A person has to get a shot once every two weeks or some are once a month. Now there are even certain shots that are once every three months. That really helps people, helps their stability, their mental health stability for a longer period of time because people forget their prescriptions run out, they don't go get back to the doctor. That can really, a lot of them to decompensate very quickly at the end of being hospitalized or re-arrested or hospitalized. The long-term medications with the people who have serious mental illness have really helped people function much better in the community. That's another big improvement that we've seen and a big change over the past 13 years. I was shocked when I heard about one injection for three months. But that can really help people remain stable for long, longer period of time.

Eagle: So why do you think it works? I assume you think it works.

Judge Hirsch: Why does my courtroom work? There've been a lot of studies done on that. I think its accountability. I think it's a really good combination of treatment, a lot of people have never been in treatment before, and it’s having people go to good treatment programs to get help. But, it's also providing wrap around services, it's providing the education, it's providing people with the chance to go to school and get the high school diploma, the GED, or go to trade school to learn good trades. I mean, I have people in trade school to become electricians, carpenters, and airplane mechanics. We all know that very few things pay as well as selling drugs so we have to provide them with some type of long term plan and goal where they can be employed and become productive members of society. With regular drug court, our people are required if they are able, not if they're disabled or unable to for whatever medical reason that they can't work, we required people to get a job on the books, and it has to be on the books. They have to get a 1099 and pay their taxes because we want them to be productive members of society.

We want to teach that person responsibility and what it means to be a productive member of society. It's all part of providing the wraparound services for them. Some people, we have to help them find housing, and that's difficult in the city. But there are fortunately places that we can work with in different organizations that help. It's kind of like a wraparound approach. We have an education liaison, Pat Faraglia, who you spoke to last week. She does a great job on the education end. She also works with my parents who have children in the New York City public schools. Just like one example, we had one parent who is really concerned because his child was been bullied and she was able to look at it with administrators. Same thing with getting early intervention services for parents who have children newly diagnosed with autism, it's a very stressful situation for a parent, especially parent in recovery. By helping these parents navigate the education system, the New York City public schools; she helps relieve the stressors in their lives and allows them then to concentrate on their own recovery. It takes a village. It takes the whole village to work on these problems that people face on an everyday basis.

Eagle: As an outsider coming into, it looks to me like you're basically addressing all these underlying issues that got the person into the situation that they got into. Could all courtrooms function this way?

Judge Hirsch: These courts have been successful in reducing recidivism, they have. Crime rates are down. Arrests are down. Rikers Island population is down because of bail reform and other issues. I think that does point to the fact that a lot of these programs are working, but crime is down. Go back into any courtroom any courthouse in the city, and some judge will be doing pretty much what I do, though, some judges only do it one day a week, they may only have one of the parts and then they have a regular calendar the rest of the week, but this is my full time assignment.

Eagle: Do you think that it would be good if you could expand it to the whole court system in some way?

Judge Hirsch: Everybody doesn't qualify for these parts. There are a lot of cases where the people just don't meet the requirements. So it would be hard. You really couldn't roll it out system-wide. A lot of people, even people who are screened and found eligible for drug treatment court, there's a fair number that don't want it. They're not ready to give up the drugs, they don't want to go to treatment, they've been to treatment, they don't like treatment. They like the way the drugs make them feel. They like to drink alcohol, they don't want to comply and there's personal responsibility. And people have constitutional rights; you can't force people who don't want to. But then again, there are some people when they reach a point in their life, like the gentleman today who said, “I just I turned 50 years old and I've been doing this for too long.” Sometimes people get sick and tired of being sick and tired and then that motivates change. But some people even — if they would get the benefit of having their case, sealed or dismissed or whatever — just aren't ready. They like the lifestyle. They like the money, they like the thrill of it all. Some people just aren't ready. There are some crimes that we would not take also. There are some crimes that are really super serious, or and that wouldn't be a good fit. We couldn't put really serious dangerous people in programs with that, where they might jeopardize the health and well-being of the other people in the program so it's a balancing act.

Eagle: What about expanding to other populations?

Judge Hirsch: Yeah, I think that more could be done that way. But for my court and for all of the other problem-solving courts, you need a district attorney who's supportive and we're really blessed. We have, DA Brown who has been a big proponent of all of our problem-solving courts because we couldn't have them without him because they have to screen cases. Even in our mental health court, the victim has to be on board. You don't want to be seen as you know not taking crime victims seriously and your overriding concern has to be keeping the community safe and that's what the district attorneys struggle with. Is this going to be seen as soft on crime and will the community be as safe if we allow people to go into these programs? So it's a balancing act and they're taking a chance too. In a utopian world it would be terrific if we could solve everybody's problems this way, but as I said, there are a lot of people who don't want to do treatment and don't want to comply. I mean, people will also say to you, ‘I'd rather do three months in Rikers then do a year in treatment with you.’ And there are plenty of people who say that. So as I said, personal responsibility, constitutional rights and their free will to lead their lives as they'd like. It may not be my choice or your choice, but we have to respect that.

Eagle: What's it like watching someone fail and have to be sentenced?

Judge Hirsch: It's hard. It's disappointing because here you really did invest a lot of time and a lot of resources, and you really tried to give this person the benefits of everything that the team had to offer him and it just didn't work. We've learned that we can't help everyone as much as we try. There are just some people who still want to go back. This guy did great in residential treatment. But whenever we transitioned [him] into an outpatient program, and whenever he went back to work— he had a really good paying job — as soon as he had money in his pocket, what do you think you did? Went out and used again. That was the cycle. Went back in residential, did great in residential and as soon as he moved out. All the treatment in the world, different programs, different criminal behavior, criminal thinking groups, different trauma groups, every kind of different treatment just didn't work with him. He was on methadone as well, so he was on medication-assisted treatment too that didn't work. Someday you hope that it'll work. I mean, I do have people that I sentence and who come back to see me and say, ‘Sentencing me Judge was the best thing you ever did.’ So it's really hard to figure out what's going to work for one person and not work for another person. Here on my statistics, it's a failure if he's sentenced but I've had people who come back to me and say, ‘Best thing you ever did for me, Judge. I got my life together. I learned this when I was way upstate and I did drug treatment and now I have a family and I have a job and thank you. Thank you for sentencing me. Shocking, but true.

Eagle: There was a man today who wanted to give up and be sentenced.

Judge Hirsch: I know. But then something changed. Somewhere in that conversation, something changed and he's willing to give it another shot. So we'll have a new psychiatric evaluation done. I really want to see what's going on with the medication because he's not on anything right now. And I know he has a mental health diagnosis. So he probably should be on something but it might be figuring out the correct medication or sometimes it's the wrong diagnosis. So we're going to get a new evaluation and see where he is right now. Rather than rely on what was done in the past. Let's see where he is right now and get new evaluations and a new plan and then we'll see if we can find a new program for him.

Eagle: Someone brought up the point to me that courts like this can only be as successful as the programs it works with, is that an issue you face?

Judge Hirsch: We're really fortunate because we're in a large metropolitan area. We probably work with maybe 40 different providers, maybe even more. So we're good because if this program doesn't work, we can find another program. It's much worse when I speak to my colleagues in small rural areas where there may only be one drug treatment provider and everybody has to go to the same provider. So we have to kind of see. Some are stricter than others. Some let people go home a lot faster. Some give weekend passes early. Some you have to be there six months before you get a weekend pass. Some may provide school on premises for some of my younger people so maybe they're going to be able to be in school for half a day and work toward their GED and get their treatment in the afternoon. We have mother-child programs for some women who have young children under 3. You have to figure out what the people need. Sometimes you may want to put someone in a residential program if they're homeless, or if other people in the household use drugs and you want to get them out. People deal with all kinds of situations and unless we know what they're dealing with, and unless they're open and honest with us, we can't make the right match. Sometimes it may take a couple programs before we find the right fit for someone, but as I said, we're really lucky because there are a lot of good providers around here. And if we have issues with the providers, we meet with the providers or we communicate with them or Peter or Patrick on my staff out there will call the provider and say, ‘Hey, the judge didn't like such and such, what can you do about it?’ And I've disagreed with certain programs, certain methods, and I've let them know about it. We won't send people any further to a program if we think some of the methods are harsh or punitive or bullying. If I wouldn't send a child to a school where they're going to be bullied, why should I send adults to programs where I think they're being bullied? I think that all comes from also from being trauma informed and not wanting to re-traumatize people who've been traumatized and most of our people have sometimes have had some type of trauma in their lives. And medication or the drugs or the alcohol that they're using are their way of coping and dealing with the trauma. So I think it all comes from just being more aware of what people live with.

Eagle: What am I missing? What did I not ask you?

Judge Hirsch: People ask the burnout question, ‘don't you get burned out?’ I mean, you hear a lot of different stories. You read a lot of different evaluations on things where people really have some pretty sad experiences in their life. How do you not bring them home with you? Those kinds of things people always want to know about. We work together and we all have our own way of decompressing, whether it's going to the gym and working out there or just spending time with our families and the things that we like to do. But it can be really intense. We've lost people to drug overdoses, we've had people die, we've had people commit suicide. It's hard. You never know on any given day — I can come in and expect my calendar to look one way and I can end up with my calendar looking very different. I can end up with people picking up new arrests or just having some people get cancer diagnoses in the middle of treatment; people have people die in their family, all of that kind of stuff. So we just pretty much have to be ready to deal with whatever comes our way and that's the challenge of the job, but that's also the rewarding part because we do have a lot of resources and we do have a lot of excellent professionals that we can refer people to. If we have someone who loses a family member and we say to them, ‘I'm really sorry that your mother passed away or your father passed away, but please remember you have a lot of support around you right now. If you need bereavement counseling, if you need one-on-one therapy. What do you need? How can we help you get through this rough patch?’ So it's just conveying all those kinds of things and we kind of do that for each other also. So that's how we cope with what some people feel is burnout.

Eagle: What do you do to decompress?

Judge Hirsch: I work out four or five times a week. And I try to leave my work here at work. You can't always do that but I really try to take care of the problems that are presented before me. So I try to make the referrals, I try to go the extra step, I try to get the person what they need in a given time and even if it's having them come back the next day, again, if we're worried about them, or having someone call and reach out to them and see how they're doing. We act, rather than say, ‘Oh, I hope when they come back in three weeks, everything's okay.’ We try to have connections made along the way so the person isn't all alone.

Eagle: Would you ever not want to do this?

Judge Hirsch: I've been asked that before, but I really like what I do. Through all the training that I've gone through, I have the good fortune to be able to go out and I train other judges and I lecture and I speak at the national conferences. I'm going to Maryland to speak. They're having a problem solving symposium for all of their problem solving judges at the end of the month, and I'm going there to speak. So I get to go out and travel a little and speak and train and share what we do with other people. And that's really rewarding. I enjoy that part as well. And I always have other people coming to see what I do in my court. We have visitors from other countries come and see what we do. Yeah, so it's good because I think it's just the right thing to do.