The debate over changes to New York’s 2019 bail reform laws typically centers on public safety.

But one criticism of the laws came from district attorneys who said jails were often a first step for those battling drug addiction to take the first steps toward sobriety and fearing an increase in overdoses because addicts wouldn’t be directed toward treatment without spending time in custody. Those calls haven’t gone away in the past five years.

Assemblywoman Aileen Gunther, D-Monticello and chairwoman of the Assembly Mental Health Committee, is proposing legislation (A9675) to amend the Criminal Procedure Law so courts can consider the risk of continued substance abuse in certain instances. Her legislation would allow a court to send an arrested individual to a county jail for no more than 15 days if the court finds in its discretion that the person has a substantial risk of continued substance abuse and a likelihood of serious harm. Gunther’s bill also states judges would have to show there is no alternative less restrictive means available to prevent the principal’s risk of continued substance abuse upon his or her release from custody.

“For some individuals afflicted with substance use disorder, brief periods in which they are physically prevented from partaking in an illegal substance could mean an overdose is prevented and a life is saved,” Gunther wrote in her legislative justification. “However, due to recent bail reforms, if an arrested individual is considered nonviolent, that person is given an appearance ticket and released on their own recognizance- at which point, this individual may very well return to substance use that can be fatal. This is in stark contrast to the days when arrested individuals were held on bail and given options of drug court or incarceration.”

Courts would be able to consider the following factors: admission by the person they are addicted to a controlled substance; requests by the principal’s immediate family members to keep the person in custody in order to prevent the likelihood of serious harm; the person’s record of arrests related to controlled substances; documentation of reasons for any failed attempts to complete drug court; an arresting officer’s testimony of the principal’s intoxication or of witnessing the person’s use of a controlled substance; and the person’s possession of a controlled substance or possession of drug-related items.

Courts would be required to order the person be monitored and evaluated for substance abuse by a duly licensed professional during the principal’s period of confinement in a rehabilitation, mental health facility or county jail. That evaluation would include a licensed professional’s recommendation for the release or continued confinement, as well as recommended treatment and medication or consideration for participation in a judicial diversion program. The evaluation would have to take place within 72 hours of completion.

Gunther’s proposal would give the person an opportunity to request a hearing to argue for immediate release. Anyone who is not provided a hearing within 72 hours of their request must be released from custody immediately and served an appearance ticket.

“This bill seeks to help arrested individuals with a substance use disorder by allowing judges to remand an individual to the custody of the sheriff for up to 15 days, whereby a licensed professional will monitor and treat the individual, and complete an evaluation with recommendations. These recommendations could include a judicial diversion program or immediate release.This critical period of time allows the person to be offered MAT (medically assisted treatment) options, drug court, or a judicial diversion program. This legislation lines up with the 15 day involuntary admission process at NY psychiatric centers under current Mental Hygiene law,” Gunther wrote.