Lisel Petis, policy director of criminal justice and civil liberties at the R Street Institute, commented on the recent Executive Order on Bail Reform, questioning its legal foundation and approach. “Criminal justice policy is largely controlled by the states, and the 10th Amendment prevents the federal government from dictating how states run their bail systems,” she said. “Since the president can’t directly require states to keep or bring back cash bail, it appears he intends to leverage the power of the purse—through federal funding—instead.”
Petis referenced data from Illinois to illustrate changes following bail reform measures in that state. She noted that under Illinois’ previous bail system, most defendants were released without having to pay cash; a small percentage were held without any chance for release, while others could be freed if they could afford bail. Since cash bail was eliminated under the Pretrial Fairness Act, a study covering 22 counties indicated an increase in those held without release but found that most people were still allowed out with certain conditions.
“Available data from Illinois shows most individuals released without cash bail have returned to court and remained arrest-free while awaiting trial. Early results show pretrial crime rates have not increased, suggesting judges can effectively assess risk without relying on financial conditions,” Petis said.
