President Donald J. Trump has announced two executive orders aimed at ending cashless bail, stating the measures are intended to “end cashless bail to protect Americans.” One order targets Washington, D.C., where the federal government has constitutional authority over local laws. The other is directed at state and local jurisdictions that have largely eliminated cash bail as a condition of pretrial release for crimes considered a threat to public safety.
Pretrial policy for state crimes has traditionally been governed by state law. States and localities hold policing power, not the federal government. Cash bail refers to a system in which judges set a monetary amount for release after arrest; those who can pay are released while those who cannot remain in jail awaiting trial. This system does not necessarily reflect an individual’s risk to the community or their likelihood of returning to court but is instead based on financial means.
Several states and cities have moved away from cash bail systems. Illinois became the first state to abolish cash bail entirely, while New Jersey and New Mexico have implemented significant reforms that replace money with risk-based assessments. In Houston, reforms have also limited the use of cash bail in low-level cases. These models allow judges to detain individuals deemed dangerous without keeping low-risk people incarcerated due only to lack of funds.
Trump contends that eliminating cash bail increases crime rates, but available evidence does not support this claim. Violent crime rates in Washington, D.C., decreased last year, and states moving away from cash bail have not experienced crime spikes attributed to these changes. In many places where cash bail is not used for violent or sexual offenses, judges retain authority to deny release altogether when warranted by risk assessments.
The Eighth Amendment prohibits excessive bail but allows preventive detention in serious cases according to longstanding court precedent. Detaining individuals outright based on risk is considered more transparent than setting unattainable bail amounts.
The broader issue raised by these executive orders concerns federal intervention in matters typically handled by states. The administration seeks to influence state policies through threats of withholding federal funding; however, Supreme Court decisions limit the federal government’s ability to cut off unrelated funding as punishment for noncompliance with preferred policies.
Modern pretrial systems increasingly rely on validated risk assessments rather than financial conditions for release. Courts may require supervision or electronic monitoring and provide services such as mental health or substance use treatment referrals and logistical support like reminders or transportation assistance for court appearances. When necessary, judges can order detention without offering a financial option for release.
The debate centers on determining appropriate criteria for pretrial detention rather than focusing solely on monetary thresholds. Questions about who should be detained before trial—and why—are central to creating effective public safety policies.
Decisions regarding changes in state or local bail laws should rest with communities and their voters rather than being mandated federally. If there is research supporting alternative approaches, it should be shared with states so they can make informed choices rather than imposing directives from Washington.
Federal involvement could be more constructive if focused on supporting research into evidence-based practices rather than leveraging funding threats against states’ autonomy over criminal justice policy.
