Criminal Justice
Trump’s plan to penalize states using cashless bail is unconstitutional and unnecessary, critics say
Critics are raising questions about the constitutionality and wisdom of President Donald Trump’s executive order seeking to pressure states to require cash bail for defendants charged with a variety of crimes. (Image from Shutterstock)
Critics are raising questions about the constitutionality and wisdom of President Donald Trump’s executive order seeking to pressure states to require cash bail for defendants charged with a variety of crimes.
In his Aug. 25 executive order, Trump called for the federal government to withhold grants and contract funds to jurisdictions that have “substantially eliminated” cash bail for charged crimes “that pose a clear threat to public safety and order, including offenses involving violent, sexual, or indecent acts, or burglary, looting or vandalism.” In a second Aug. 25 order, Trump called for “appropriate actions,” including funding decisions, to press Washington, D.C., to change its policies on cashless bail.
Trump’s plan to withhold funds “is simultaneously an attack on federalism and an attempt to usurp Congress’ spending power,” wrote Ilya Somin, a professor at the George Mason University Antonin Scalia Law School, at the Volokh Conspiracy. “Supreme Court precedent—most of it authored by conservative justices—holds that only Congress can impose conditions on state and local governments receiving federal grants, and those conditions must be clearly stated in the statutes allocating the funds.”
U.S. Supreme Court precedent requires that grant conditions be clearly indicated by Congress, be related to the purpose of the grant, and not be coercive, Somin said.
“In addition,” he wrote, “this is an attempt to insert the federal government in a core traditional area of state and local authority. Few powers are more central to state and local autonomy than control over state criminal law enforcement.”
Washington, D.C., provided a roadmap for other states when it eliminated cash bail in 1992, Bloomberg Law reports. The Brennan Center for Justice at the New York University School of Law identified 19 states and one city that enacted reforms related to pretrial release over the decade ending in 2023. The report focused on five of those states. Three of them repealed some of the changes, and in two others, judges appeared reluctant to order pretrial release despite reforms.
Among the jurisdictions, details varied. Illinois eliminated cash bail entirely, while New Jersey eliminated it for most cases. Some eliminated cash bail for only certain lower-level crimes. Some required ability-to-pay determinations or the least restrictive means of release.
Judges in jurisdictions with cashless bail still consider whether to detain a defendant based on criteria that include criminal history and whether the charged crime involves violence, explain Bloomberg Law and CNN. Illinois, for example, created a default rule that all people charged with an offense are eligible for pretrial release on personal recognizance, subject to conditions of release set by a judge. Defendants who are considered a danger to the public or a flight risk will be held.
The ABA supports limits on the use cash bail and supports the elimination of bail schedules that consider only the nature of the charged offense, according to a 2017 ABA Journal article written by the ABA Governmental Affairs Office.
Supporters of cashless bail say it ensures fairness because defendants without money to pay bail will be treated the same as those who can afford it. They also say it prevents poor defendants from losing their jobs while they are in jail, which could lead them to commit crimes to support themselves or their families.
One 2013 study found a strong correlation between length of pretrial detention and likelihood of committing more crimes, according to a 2016 story by the Journal. Researchers suggested that as the time in detention increases, the detainees’ place in the community becomes more destabilized, increasing the risk of reoffending.
Supporters of cashless bail also point to findings showing that the practice does not endanger public safety.
The District of Columbia’s Pretrial Services Agency has reported that 87% of defendants in superior court were released before trial in fiscal year 2024, and 89% of them were not rearrested, the Washington Post reports. At the national level, 87% of people released before trial were not rearrested while on release, the agency said.
A study of dozens of jurisdictions by the Brennan Center for Justice found no statistically significant relationship between bail reform and crime rates. The findings hold true even when considering cashless bail states such as New Jersey and Illinois, the researchers found.
Those who oppose cashless bail say jurisdictions that prevent pretrial detention for lower-level crimes are impeding judges’ ability to detain people who cycle in and out of the justice system.
“You have ‘turnstile justice’ where recidivists have been arrested for the same crime hundreds of times … and you can’t impose bail,” said James Gagliano, a retired FBI supervisory special agent who spoke with CNN. “It’s wrong, and it doesn’t fix the system.”
One example cited by those who want to keep cash bail is the case of a teenager charged with the fatal October 2024 beating of DJ and hair stylist Bryan Smith. The accused teen had five pending charges for robbery and assault at the time of the crime, according to Bloomberg Law.
See also:
ABA weighs in on California Supreme Court case affecting state’s new bail reform law
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