In this Expert Analysis series, state and federal judges reflect on a piece of art or entertainment in popular culture, discussing what it gets right and wrong about the justice system, and what legal practitioners and the general public can learn from it.

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I don't know what came over me: There I was, on a panel about criminal justice and mental health, when a co-presenter described me as a "representative of justice."

As I sat before the audience, feeling suddenly triggered, all I could think about was the unflattering judicial description in the 1968 Moby Grape song, "Murder in My Heart for the Judge."

The singer, a fictional criminal defendant, laments:


Well, that could be me, although I'm not bald — yet. The song continues, as the defendant gets his chance to speak:


This interchange sends the poor accused over the edge and into the dark chorus:


As I left the stage, I continued to think about the song and the cause of the protagonist's rage. Although it was the physical description of the judge that started me thinking, that superficiality meant little given the judge's insouciance and utter disregard for the individual before him.

"Murder in My Heart for the Judge" was written more than 50 years ago in what was, in many respects, a different judicial world.

It tells the tale of a protagonist grappling with inner turmoil and a frustrated desire for justice in a corrupt system. Pleading to the judge that he wanted a chance to change the direction of his life, he was silenced and treated with scorn.

He was worse than powerless — he was unheard. While the singer tells of the judge looking down on him physically, we are also made aware of the judge's moral contempt in that phrase.

When I first became a judge, I read an article that found that litigants cared more about being heard than the outcome of the case. That has stuck with me over the years. I have striven to listen carefully to the lawyers and parties before me, and believe it to be true.

That quality has a name now: procedural justice. Its key elements include providing individuals with a clear understanding of the process, allowing them to voice their concerns, ensuring fairness in decision making and upholding legitimacy in the execution of justice.

Unlike the process — and judge — described in "Murder in My Heart for the Judge," careful listening and procedural justice foster trust and confidence in the system.

In today's courtroom, that is the goal. Certainly, judicial nominations and appointments are based, in large part, on the nominees' temperament and ability to listen — qualities that were not deemed particularly important for judicial figures 50 years ago. Behavior like the "bad old judge" is now the exception and not the rule, no matter the criminal charge.

If I could, I would invite the songwriters to a modern criminal courtroom, where diversion programs and principles of therapeutic jurisprudence, as well as procedural justice, abound.

In drug treatment courts, mental health courts and other alternative-to-incarceration courts, judicial compassion and empathy are a constant.

Instead of the judge's derision in the song, "I don't want to see your ugly face again," the songwriters would find genuine care for defendants with addictions, mental illnesses, or developmental and intellectual disabilities. 

Problem-solving or alternative-to-incarceration courts began more than 30 years ago in the state courts, based on principles of therapeutic jurisprudence — that a court can effectively use its authority to better the physical and mental lives of those appearing before it.

Florida is credited with starting the first drug courts based on this concept, with substance abuse, mental health, veterans and other specialized courts proliferating across the nation thereafter.

These courts partner with mental health, substance abuse and other professionals to identify the cause of an individual's criminal behavior and offer treatment instead of jail.

A hallmark of these courts, which is critical to their success, is close judicial monitoring of the participant's progress in the mandated treatment. While this is a public safety measure to prevent reoffense, it also necessarily establishes a relationship between the judge and the defendant.

This relationship allows the judge to encourage success, with support from both the prosecutor and defense counsel.

An example is the Brooklyn Mental Health Court, where I have presided for over 20 years. Although the defendants are held accountable for their actions, this does not involve being punished, but rather engaging in treatment.

In the years since alternative-to-incarceration courts were first established, judges have built relationships with the participants. We listen when they talk to us about wanting a chance to overcome the illness and addiction that led them to stand before us — so different than the experience of my 1968 predecessor.

Although a stern glance or warning may be necessary to ensure compliance with the court mandate, it is in the context of dialogue and not monology.

Alternative-to-incarceration courts involve the judge asking each participant about their progress, hopes and aspirations, and fears and anxieties.

Just a few weeks ago, a participant who pled guilty to gun possession graduated from the mental health court, had his charge reduced to a misdemeanor, and was sentenced to a conditional discharge instead of a prison term.

He has a physical disability and needs a walker to get around, and is also living with a serious and persistent mental illness. Through tears, he told me he loved me and explained his worsening physical condition with great emotion.

I have likewise been gifted small but beautiful items by mental health court participants: a flower made from magazine pages, a painting of a flower, an icon, and, perhaps most impressive, my name carved from soap — a precious commodity in jail. I am satisfied that these individuals had something other than murder in their hearts for the judge.

I practiced law for many years before my appointment to the bench. When I entered the criminal justice system 30 years ago, I clearly recall the skepticism and criticism with which problem-solving courts were met. Many of the judges of an older generation were mired in their traditional role and not open to this new approach to justice.

Today, the benefits of procedural justice and problem-solving courts are evident. It's time for a new song.

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Judge Matthew D'Emic is the administrative judge for criminal matters at the Supreme Court of the State of New York, County of Kings, and the presiding judge at the Brooklyn Mental Health Court. He is also co-chair of the New York State Judicial Task Force on Mental Illness.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.