There's a renewed expectation among Democrats in New York that 2019 could be the year the state Legislature approves reforms to the state's cash bail system, rules on discovery and laws to guarantee a speedy trial for criminal defendants.

That's due, in large part, to a new wave of Democrats flipping the State Senate from the hands of Republicans, who have controlled the chamber for the better part of the last decade. The State Assembly was already controlled by Democrats.

State Sen. Jamaal Bailey, a Democrat from the Bronx, is the new chair of the Senate Codes Committee, which typically handles legislation involving changes to the state's criminal procedure laws, like bail reform. He said he supports changing the state's bail laws in an effort to make the criminal justice system fairer for low-income defendants.

“My main goal concerning bail reform is to simply put a stop to people's detention based on their income limitations,” Bailey said. “You should not be in jail based on your inability to pay to get out.”

That position is shared by many of the state's Democrats, including Gov. Andrew Cuomo and newly minted Attorney General Letitia James. Cuomo, who has called for ending cash bail in New York, renewed his support for the change during his inauguration speech Tuesday.

“New York put justice back into the justice system by ending the cash bail system,” Cuomo said. “A judge should determine an individual's risk of release, not an individual's access to wealth.”

But, as is often the case in Albany, any reform would be negotiated based on the finer details surrounding the issue. Republicans have argued that a blanket reform of the state's cash bail system might pose a public risk from some defendants that judges might prefer to keep in custody, based on criminal history or other characteristics.

Some Democrats share similar concerns, though there's a consensus among those lawmakers that bail reform is needed. Bailey said he wants to hear from his colleagues and other stakeholders before moving a bill through his committee.

“I know there are concerns about certain offenses that people believe bail should not be granted to and all voices will be considered as we strike out a path in the majority,” Bailey said.

Among those voices is Michelle Esquenazi, president of the New York State Bail Bondsman Association. She's open to discussing bail reform with state lawmakers, but also urged them to take a step back and consider arguments from everyone involved in the issue, like law enforcement officers, the Office of Court Administration, and others.

“Once you do it, you can't dial it back,” Esquenazi said. “The answer is to put the whole issue to a one-year blue ribbon commission study. That's what I believe would be in the best interest of the people of the state of New York.”

There are also specific provisions of bail reform NYSBBA would like to see included in any legislation proposed by Democrats this year. The first would require an inquiry into defendants who claim in court that they can't afford bail, which Esquenazi also noted is addressed by several charitable funds throughout the state that offer bail on behalf of low-income individuals.

“Our suggestion in that regard would be a system of accountability in terms of the indigent piece,” Esquenazi said. “Much like when you need any other benefit in the state of New York, like food stamps or housing, for example.”

Their second request would be to allow judges some discretion in special cases, rather than eliminating bail for a blanket level of crimes, regardless of a defendant's background. Esquenazi said allowing that flexibility would assuage concerns about the legislature encroaching on the power of another branch of state government.

One option, which Democrats are split on, would be to include a set of so-called risk assessment tools in the legislation. Those tools would provide an algorithm for judges in state courts to use in deciding whether a defendant should be held in custody or released based on several characteristics, like criminal history or their ability to be located.

Democrats are divided on whether that method would be appropriate to include in the bill, according to Assemblyman Joe Lentol, a Democrat from Brooklyn who chairs the Assembly Codes Committee.

“Bail reform is by far the most problematic and hardest to do because you have issues about whether there should be risk assessment tools in order to determine someone's dangerousness,” Lentol said. “You have public safety included in the bill, which I've always disagreed with.”

Bail reform is usually talked about without mention of its related criminal justice cousins: discovery and speedy trial. Cuomo, for example, has mentioned bail reform in two speeches in the last three weeks, but discovery and speedy trial reform were absent from those remarks.

Lentol said the three issues should be considered by the Legislature as a package deal, since each is intertwined with the other. He supports open file discovery, which would require prosecutors to provide a complete copy of all the material they plan to use against a defendant well ahead of trial, rather than days before, as is sometimes the case now.

“I think we go to open file discovery because there's no reason not to,” Lentol said. “If you don't have any information, you don't have any power.”

Bailey also supports open file discovery and said, like bail reform, he plans to hear out arguments from all sides of the issue before he moves a bill enacting that reform through his committee.

“There may be some difference in what members are comfortable with concerning any of these pretrial matters,” Bailey said. “I'm understanding and sympathetic about limited exceptions for redaction in the event of witness safety and things of that nature, but I am looking at that conversation with the rest of my colleagues in the Senate Democratic Conference.”

Both Bailey and Lentol agreed that speedy trial reform comes hand in hand with discovery reform, since speeding up the process without allowing more transparency could be detrimental to defense attorneys who may not have enough time or information to build a strong case.

“Who wants a speedy trial if you don't know what the case is about?” Lentol said. “The defendant will just go to jail.”

Lawmakers will reconvene in Albany for the first day of the legislative session Jan. 9.

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