According to a new executive order, the president wants to divert federal policies and resources, “to the maximum extent permitted by law,” away from supporting jurisdictions that have tried to dial down or eliminate cashless bail. This is especially true for “crimes that pose a clear threat to public safety and order." But what exactly is cashless bail, and why is it in the crosshairs of the Trump administration?
Why Do We Have Cashless Bail?
Cashless bail is a specific approach to broader bail reform. It generally means people accused of most nonviolent offenses are released before trial without having to pay money. Instead of setting a cash amount, judges use factors like flight risk and public safety to decide release conditions (e.g., check-ins, electronic monitoring, protective orders). The aim is to avoid detaining people just because they can’t afford bail.
There are a lot of good arguments for having cashless bail. Looking at the benefits to the defendant, it helps to ensure greater fairness and equal protection; cash bail can jail poor defendants while wealthier ones go free for the same charge. Removing money reduces wealth-based detention and racial disparities. It’s also important for the principle of presumption of innocence, since pretrial detention can pressure guilty pleas and harm due-process rights.
Those might sound a bit abstract, but the effects of locking defendants up can have devastating, very concrete consequences. Even short pretrial jail stays can cause job loss, housing instability, and family disruption. The resulting economic and social instability is bad for not just the defendant but society at large. Broader society also stands to gain from the cost savings, as cashless bail reduces jail populations and taxpayer costs associated with pretrial detention.
Supporters of cashless bail, such as the ACLU of DC, cite data showing that 92% of people released pretrial are not re-arrested, and only 1% of those re-arrested are for a violent crime. They argue that pretrial detention can actually increase the likelihood of future arrests, disrupt support networks, and negatively impact public safety and individual well-being. The data also shows that ending cashless bail would disproportionately affect Black residents, many of whom cannot afford to pay cash bail and would therefore remain incarcerated.
Does Cashless Bail Lead to More Crime?
Opponents, like President Trump, support expanded pretrial detention because they think that cashless bail leads to higher crime. Does evidence support his theory? Some studies seem to support that link, but the data is not robust, and there’s just as much that seems to show the opposite.
For example, a Loyola University report from last year found that crime did not increase in Illinois after the state ended cash bail, and in some counties, violent and property crime actually declined. Other studies, such as those from the Brennan Center for Justice and the American Economic Journal, didn’t find any statistically significant relationship between bail reform and crime rates. These studies also found no evidence that cash bail helps ensure court appearances or prevents crime among released defendants.
Currently, there’s no clear evidence linking cashless bail or bail reform to increased crime rates. Experts and multiple studies disagree with Trump’s theory, stating that data is inconclusive or shows no significant impact.
Trump’s Executive Order
On August 25, President Trump signed an executive order directing federal agencies to take steps to end the use of cashless bail in jurisdictions across the United States.
The order instructs the Attorney General (currently, Pam Bondi) to compile a list of states and localities with such policies. It also calls for federal departments to identify grants and contracts that may be suspended or terminated in those areas, subject to applicable law.
The White House issued a statement accompanying the executive order, alleging that cashless bail policies have contributed to increased crime rates and repeat offenses. The statement claims that "dangerous predators are being set free to offend again and again," particularly in cities like Washington, D.C. It further asserts that the "Radical Left's fantasy of so-called 'cashless bail' has turned the streets of America’s cities into hunting grounds for repeat criminals who mock our justice system by committing crime after crime without consequence." The statement cites several specific incidents from recent years, including cases in New York, Illinois, and Washington, D.C., where individuals released without bail were subsequently accused of additional violent crimes.
The executive order outlines its purpose as maintaining public safety by ensuring that individuals deemed a "clear ongoing risk to society" are incarcerated pending trial. It claims that when “these individuals are released without bail under city or State policies, they are permitted—even encouraged—to further endanger law-abiding, hard-working Americans because they know our laws will not be enforced."
Reactions of Resistance
Since the order was signed, tensions have been rising between the White House and Democratic-led jurisdictions. New York is representative of the jurisdictions the order is targeting, and U.S. Attorney General Pam Bondi visited NYC on Monday. She met with NYPD leaders, who emphasized that crime rates in the city are at near-record lows and that the department is effectively managing public safety. The pattern is likely one that will play out from other jurisdictions that are pro-bail reform, and it doesn’t look like the order is going to be executed without a great deal of pushback.
As with most of President Trump's executive orders, this one is likely to face significant legal challenges. First, states generally have the power to set criminal law for their own jurisdictions. It's not clear whether federal law can force states to end cashless bail for state crimes. Second, it is Congress, not the president, that creates criminal law. Considering its importance not just to criminal defendants, but society at large, it's an executive order worth monitoring.
Related Resources:
- Can You Get a Judge to Reduce Bail? (FindLaw's Learn About the Law)
- Getting Out of Jail With Bail Money: Setting Bail, Posting Bail, Bond Agents, and Penalties (FindLaw's Learn About the Law)
- 'Own Recognizance' Release (FindLaw's Learn About the Law)
