The status quo is horrible, even if exaggerated to make the point.

New York laws on pretrial process are among the most retrograde in the nation. Prosecutors can withhold evidence until the morning of trial. To keep it that way, the district attorneys’ association has made the fear-mongering claim that early disclosure of evidence would enable defendants to intimidate witnesses and victims.

This isn’t quite false, but wildly imprecise. Prosecutors in New York are required to make disclosures under CPL § 240.20, so to say “withhold evidence” is inaccurate. But it is true that anything outside the statutorily-mandated discovery can be withheld until the eve of trial, including witness statements, which we refer to as Rosario material, and Brady material.

What this means is threefold: we can’t investigate to determine the efficacy of the evidence against the defendant, and we can’t search for contrary evidence to refute the prosecution’s claims and we can’t properly prepare a defense since we don’t know what evidence we will face at trial. So while it’s hyperbolic to claim we’re blind, it’s fair to say we can’t see what we need to see if we’re to mount an adequate defense.

There hasn’t been any serious doubt this needed to change, but the prosecution lobby has thwarted revision for decades, picking apart reform proposals with the usual fearmongering. Legislators have little stomach for getting their faces on the front page of the New York Post after some horrible thing happens and gets blamed on a reform they proposed or voted for. And the horrible thing will happen.

But now that the New York Senate is in the hands of Democrats, there is hope that changes can finally make it through. Conservative upstate Republican senators have been replaced by slightly-less-conservative upstate Democratic senators, creating enough of a gap to move reform through the Senate.

That doesn’t mean they’re ready to take the big leap, and the District Attorney Association of the State of New York isn’t there to remind senators that they will be blamed when the horrible thing that’s sure to happen happens. And the DAASNY has a powerful ally.

The prosecutors have enlisted the National Organization for Women, which has warned that sexual assault victims could be discouraged from going to the police. But groups that include crime victims say they helped write the bill and point out that it allows prosecutors to ask a judge for a protective order to withhold information identifying victims and witnesses, among other safeguards.

What do the reform groups “that include crime victims” have to say?

While they are concerned about any risks to victims and witnesses, advocates say the bill language provides ample time for prosecutors to secure a protective order when necessary. Sharing evidence with the defense early can only expedite the legal process, they say.

Bailey, the bill’s sponsor, said that discussions about the bill by Senate Democrats is ongoing.

“I don’t want to downplay the need for witness safety, but there is an ability to apply for a protective order and I cannot foresee a judge not granting a protective order when the situation was severe,” Bailey said.

The objection by DAASNY and NOW is that women will be reluctant to go to police if there is discovery, and will be put at risk. The solution is that there will be discovery in all cases, except cases involving women, whether as complainants or witnesses. To be blunt, discovery is great and necessary for defendants except when women are on the other side, in which case discovery should, and will, be denied defendants.

The argument in favor of discovery is a matter of due process, that the defense needs full and timely discovery if defendants are to have a fair opportunity to defend. The gender of the complainant and witnesses doesn’t change this systemic need, and yet nobody seems to recognize, or at least is willing to admit, there is no rational way to reconcile why discovery is critical except when the complainant or witness is female, in which case their feelings of fear take precedence over the requirements of due process.

Emily Bazelon tries to blithely bury it beneath empiricism.

In a study detailed in a 2016 law review article, 91 percent of prosecutors and 70 percent of defense lawyers in North Carolina reported that the disclosure law worked well. “You don’t want to create an unsafe situation for witnesses coming forward, especially in the neighborhoods that are most affected by crime, where you worry about people being afraid to report,” Benjamin David, the district attorney in Wilmington, N.C., told me. “There are still some things we want to keep from defendants, and we apply to the courts for protective orders in those cases. The system isn’t perfect, but it’s better. And I’m glad we got pushed to this point.”

Except the study had nothing to do with the efficacy of concealing discovery when it involved women while providing it when it involved men. But what are the chances anyone will read it and recognize they just got bamboozled by this appeal to authority? Indeed, the study takes for granted that protective orders for witness safety are an obvious necessity, and the real problem is that they won’t be used enough.

But overworked and harried prosecutors may not have the time or energy to review the evidence carefully before disclosing it and may miss signs of potential threats to witnesses.

The fear is that they won’t conceal enough discovery from the defense rather than completely undermine the entire point of discovery, but primarily on behalf of women.

The conflict is obvious, but swept under the rug by rhetoric and illogic. If there is a need, a constitutional mandate, for discovery, then it applies to all cases, not merely for those where the sad tears for victims trumps sad tears for defendants in the hierarchy of victims.

Should defendants charged with murder get a fighting chance, but a defendant charged with rape denied discovery and the ability to prepare a defense? This is exactly what progressive voices propose, because their concerns for female victims exceeds their concerns for innocent defendants, and they lack the intellectual honesty to face up to their sexist reform.