Trump limits cashless bail in states and cities

Two executive orders attempts to limit cashless bail not at the federal level but in D.C. and other states and cities.

On August 25, President Trump signed two executive orders on the issue of cashless bail.

What is cashless bail?

Cashless bail is a system where people who are arrested are not required to put up cash as collateral for their release from jail prior to their trial. Instead, a judge reviews the details of the case and the individual to determine whether or not they should be detained until their day in court. (In many cash bail jurisdictions, if the defendant can’t pay the full bail amount they can instead pay a percent of the balance to a bail bondsman as a non-refundable fee, which may still be unaffordable. The bondsman will pay the full bail and assume liability for the defendant.) Cashless bail is a policy which states that whether someone is held pre-trial is dependent on the individual and the crime they’re charged with, instead of their bank account or how well their family can crowd-fund. Critics claim that it releases dangerous criminals who are then free to commit more crimes or not show up for court. (Although the specifics of the policy vary by jurisdiction, most policies do not allow cashless bail options for alleged perpetrators of violent crimes. )

What states have cashless bail?

D.C. and states including Illinois, New Jersey, and New Mexico have systems that do not allow cash bail. This doesn’t mean there is no pretrial detention – just that money can’t be used as collateral for their release. Alaska, Arizona, Colorado, Kentucky, and Maryland all have reduced or limited use of cash bail. California, Indiana, and New York have reforms in progress.

What is the impact of cashless bail?

A study by Brennan Center for Justice of 33 cities with bail reform policies in 2024 found that there is “no statistically significant relationship between bail reform and crime rates.” A 2018 review of the effects of bail reform in New Jersey found that there was also no marked increase in defendants failing to appear for their court dates. Trump has pointed to a 2022 study that connects temporary cashless bail policies in California during the pandemic to higher recidivism rates. But the pandemic was a time of increased crime nationwide, and a study published in February of this year points out that this initial effect diminished over time and that there could have been other contributing factors for the early increase.

What do the executive orders do?

The first directs relevant law enforcement agencies in D.C. to detain dangerous criminals pre-trial, and the Attorney General to apply pressure on D.C. authorities to eliminate cashless bail policies. D.C.’s cashless bail policy dates back to 1992. Criminal code in D.C. (§ 23–1322) already requires that a judge determine whether pretrial detention is necessary to guarantee the safety of others or the arrestee’s appearance at their trial. Violent crimes, repeated felony crimes, and flight risk are all reasons why a judge might determine it necessary to detain someone until their trial date.

The second order lays groundwork to suspend federal funding in the form of grants and contracts to states or cities that have eliminated or limited cash bail for violent or sexual crimes, as well as property crimes like vandalism. It directs the Attorney General to make a list of states and cities that have “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…” and the Director of the OMB to identify federal funds which can be suspended or terminated.