Tag: cashless bail

President Donald Trump’s latest move in his crime crackdown is an executive order to end cashless bail, and he threatened to withhold federal funding from states that don’t end those policies.

The Aug. 25 executive order says that when people are released without posting bail, they are “permitted — even encouraged — to further endanger law-abiding, hard-working Americans because they know our laws will not be enforced.”

Illinois is the only state that has eliminated cash bail; other states and jurisdictions have limited its use. Data in jurisdictions that have restricted cash bail shows no link between cashless bail and increased crime. Experts say eliminating or limiting cash bail is based on its disproportionate impact on certain groups of people and the strain of pretrial detention on jails.

It is unclear whether Trump’s executive order can legally end cashless bail in states and jurisdictions, experts said.

What is cashless bail? 

States and local jurisdictions typically use cash bail, money paid by a defendant to get out of jail while awaiting trial. Defendants get the money back if they complete their court appearances; if they don’t appear, the money is forfeited.

Experts said there is no legal definition for “cashless bail.” Trump’s executive order targets states and local jurisdictions that it says “substantially eliminated cash bail as a potential condition of pretrial release from custody for crimes that pose a clear threat to public safety and order, including offenses involving violent, sexual, or indecent acts, or burglary, looting, or vandalism.”

Some states and local jurisdictions have removed or reduced money as a factor in determining whether a suspect can be released while awaiting trial. Jeremy Cherson, communications director for The Bail Project, which provides bail assistance to low-income people, said courts can implement other systems to protect the public and keep defendants on track to attend hearings. Options include electronic monitoring, check-ins with pretrial services officers, stay-away orders for victims and witnesses, and mandatory substance abuse or mental health treatment, he said. 

“The jurisdictions that have moved away from reliance on cash have used risk-based methods to better identify the people who actually do pose a risk,” Brandon Garrett, Duke University law professor, told PolitiFact in an email.

Why do states implement cashless bail?

The U.S. used “cashless” bail “almost exclusively until the twentieth century,” said Kellen Funk, a Columbia University law professor who specializes in pretrial procedure and bail bonding. He attributed the increased practice of cash bail policies to the rise of corporate guarantors and a powerful lobby for commercial bail bonds.

Funk said that “access to money is often a poor predictor of pretrial behavior.”

Bail reform supporters say cash bail prioritizes wealth in assessing whether people should be released, and that the cash bail system disproportionately affects low-income people and people of color. 

“Cash bail doesn’t incarcerate individuals who are known threats; in fact, it allows people who have the money, no matter how dangerous they are, to obtain their own release from jail,” Garrett said.

The Bail Project also says the cash bail system is expensive. The Pretrial Justice Institute reported in 2017 that U.S. taxpayers spend about $38 million per day “to jail people who are awaiting trial.” According to the Prison Policy Initiative, about 83% of people in jails are “legally innocent and awaiting trial, often because they are too poor to make bail.”

What are the states with cashless bail?

Illinois’ Pretrial Fairness Act took effect in 2023. 

Other jurisdictions still allow bail tied to cash or bond in at least some instances, according to the National Conference of State Legislatures. New Jersey, New Mexico and Washington, D.C., have limited the use of cash bail. Some cities including Philadelphia don’t require cash bail for low-level offenders. Harris County, Texas, implemented a consent decree stemming from a 2016 lawsuit, which requires release or unsecured bail for most misdemeanors. New Mexico allows low-risk defendants to be released without bond.

A New York law eliminated cash bail for certain misdemeanors and nonviolent felony cases, but lawmakers narrowed those reforms.

Does cashless bail affect crime rates and lead to repeat offenses?

On Aug. 25, while signing the executive order, Trump said, “One of the executive orders has to do with cashless bail. That was when the big crime in this country started.”

The Trump administration cited a 2023 report from Yolo County, California, that conducted a study on people released under its “zero bail” policy during the COVID-19 pandemic. The report found that those who were released under zero bail were rearrested for a total of 163% more crimes than people released on bail, and committed new violent offenses 200% more often. The report examined data of 100 people who were arrested and posted bail in 2018 or 2019, compared with 100 people who were arrested and released on zero bail between April 2020 and May 2021.

Other studies examining broader data showed no link between cashless bail and increased crime. There is also no evidence that cash bail is more effective than other pretrial release conditions in assuring public safety, said Christine Scott-Hayward, a California State University, Long Beach law, criminology and criminal justice professor who researches bail and pretrial decision-making.

In a 2024 study, the left-leaning Brennan Center for Justice analyzed data from 2015 through 2021, comparing major offenses in 22 cities with bail reform with 11 cities that didn’t. It found no evidence that bail reform had a statistically significant effect on crime rates. The index crime rates — the total of murder, robbery, aggravated assault, burglary, motor vehicle theft and larceny rates — “remained largely stable after reform implementation.”

In 2023, the Loyola Center for Criminal Justice evaluated the impact of bail reforms in Cook County (where Chicago is located), Harris County (where Houston is), Philadelphia County and New Jersey and found that the percent of defendants released after the reforms who were charged again was about the same before and after the policies.

Data in some jurisdictions doesn’t show evidence of a significant increase in repeat offenses after bail reforms either. 

In Harris County, limiting cash bail for misdemeanors has decreased the number of misdemeanors and the number of repeat offenders, Garrett said, adding that the same occurred in New Jersey. 

The Data Collaborative for Justice found in a 2023 study that eliminating bail in New York City for most misdemeanors and nonviolent felony cases “significantly reduced recidivism,” or rearrests.

“There is no evidence that people who are released on cash bail compared with other methods of release (like release on recognizance) are more likely to commit new offenses,” Scott-Hayward said in an email.

Are people charged with homicide eligible for cashless bail?

Trump has repeatedly painted a picture of people committing violent crimes and instantly getting out of jail because of cashless bail. “Somebody kills somebody, they go in, ‘Don’t worry about it, no cash, come back in a couple of months. We’ll give you a trial.’ You never see the person again. And, I mean, they kill people and they get out,” he said Aug. 25.

But cashless bail reforms often make exceptions for violent crimes. In most cases, the Brennan Center for Justice found, judges still hold broad discretion to determine whether defendants pose a threat to public safety.

Illinois’ Pretrial Fairness Act allows judges to detain people based on the charges they’re facing, or if they think a person is a threat to the community or a flight risk. In Illinois, people can be held for pretrial detention if they’re facing felony charges — including first-degree murder, armed robbery, home invasion, aggravated vehicular hijacking and sex offenses — weapon-related offenses and domestic violence offenses.

Can Trump void state laws on cashless bail through federal legislation?

In his Aug. 11 remarks, Trump said he will end cashless bail in Chicago. “We’re gonna change the statute and get rid of some of the other things and we’ll count on the Republicans in Congress and Senate to vote. We have the majority, so we’ll vote,” he said.

It is unclear whether Congress can overrule states’ bail reform laws. Cherson said the 10th Amendment gives states the constitutional right to design their own justice systems. “It’s likely that any attempts to modify state bail policies at the federal level via an executive order or even legislation would face court challenges,” he said.

Funk agreed, saying there is “no direct mechanism for the federal government to dictate local bail policy.” 

“The executive order proposes to coerce local jurisdictions by depriving them of federal funding as punishment for bail reform,” Funk said. “Such coercion is likely to be found illegal by the courts.”

He added, “Ironically, the one bit of funding the federal government might legally retract is federal grants to local police departments. In effect, the order might end up rewarding cash bail reformers by defunding their local police.”