Is ‘Cashless Bail’ a Public Safety Risk?

It’s become part of President Donald Trump’s playbook during his second term to use federal funds as both carrot and stick for jurisdictions with policies he dislikes. He’s withheld or threatened to withhold funds over climate programs, diversity measures, and "sanctuary" policies limiting cooperation with immigration agents, to name a few.

Late last month, Trump turned his attention to cash bail. The cash bail system requires defendants to pay money to be released before trial, mainly as an assurance that they will return for court. Judges set bail amounts depending on flight risk, the severity of the crime and, in some jurisdictions, based on the defendant’s ability to pay. Some states and cities have curbed or eliminated cash bail on the grounds that it’s unfair for low-income people who may not have the resources to post bail.

The president has called these policies a “radical left fantasy” that has turned American streets into “hunting grounds for repeat criminals.” In two executive orders, he laid out plans to end money-free bail in Washington, D.C. — where he has more control over local policy — and across the country, mainly by cutting grants and contracts to jurisdictions that have “substantially eliminated” cash bail.

The president’s order comes after years of debate over bail and pretrial release.

Opponents of cash bail say it leads to people being jailed because they don’t have funds, rather than because they’re a true public safety risk. Cash bail’s defenders, however, say that it’s a valuable tool for judges to protect the public and ensure people show up for court. When judges cannot set bail, some argue, they too often have to release dangerous people who go on to reoffend.

Research so far is generally inconclusive about the effects of cashless bail on crime, partially because such policies often are instituted alongside other criminal justice changes. A 2024 study of several cities found no impact on crime rates after jurisdictions reduced use of cash bail. In contrast, a 2022 Yolo County, Calif. report found that most people released during a temporary switch to cashless bail to prevent the spread of COVID-19 were rearrested.

The Argument Against Cash Bail

Opponents of cash bail say the practice too often leads to people being jailed or released based on how much money they have, with dangerous but wealthy individuals able to post bail while poor but harmless ones languish in jail. Real estate heir Robert Durst, for example, skipped the court date for his first murder trial even after paying a roughly $300,000 bail.

People can spend months or longer incarcerated while waiting for trial, potentially causing them to lose jobs or get evicted, advocates say. One of the most well-known national examples is that of Kalief Browder, a teenager accused of stealing a backpack who spent three years at Rikers Island because he was unable to afford the $3,000 bail. Browder recounted experiencing severe trauma during his incarceration, including extended stays in solitary confinement. The case was dismissed and he was released, but Browder committed suicide in 2015.

About 20 percent of people who were denied bail or jailed because they couldn’t afford bail are never convicted at trial, says Marc Levin, chief policy counsel at the Council on Criminal Justice.

Still, experts concede that there are problems to address with the current system.

“The president has identified a real problem,” Levin says. “Certainly there are people who are released who, while their case is pending, commit serious offenses. [But] many of those people already posted bail.” It makes more sense to base release decisions on judgments of a person’s risk to the public alone, and not on their ability to pay a sum of money, Levin says.

Instead of setting cash bail, advocates say, courts should have robust pretrial release hearings, where defense attorneys and prosecutors debate before a judge whether someone should be released.

Some jurisdictions have tried out similar approaches. New Jersey mostly abandoned cash bail for a risk assessment system in 2017; its new approach has judges determine whether to release an individual pretrial and what conditions to set based onfacts about the case and the person’s court history. The policy also allowed judges to deny bail to violent offenders and hold them in jail. One study found “no change in fatal and nonfatal gun violence,” in the state after it changed its pretrial system; another study comparing crime the year before the policy change to crime the year after found it had fallen, although it was unclear if bail changes were the cause.

States could also work to make it easier for people to show up to their court dates, Levin says. During the pandemic, court went virtual — and missed court dates plunged, he says. This suggests many people want to make their trials but have challenges getting there. Some courts have instituted text reminders as well. To further deter no-shows, courts might ask defendants to check in with a pretrial officer or wear an ankle monitor while awaiting trial.

Arguments in Favor of Cash Bail

The president has argued that eliminating cash bail has resulted in the release of dangerous criminals who commit “crime after crime without consequence.” Releasing people before they’ve been judged at trial creates a sense of impunity and encourages crimes, while wasting public resources, Trump says. He points to the example of Jared Spires, who was arrested for assault, released, and then stabbed a man to death a few days later.

Many policymakers who doubt cashless bail policies say it’s not true that bail keeps low-income people incarcerated unfairly.

“It's a misstatement to seek to say that poor people are languishing in the Cook County jail or other county jails throughout Illinois because they're poor,” says Republican Jim Durkin, a former Illinois assistant attorney general and state representative. “People who are in jail are people who have a history that is violent, people who have a flight risk, or people who have gone out of their way to violate terms” of their release.

Illinois’ law requires people accused of most misdemeanors and non-violent felonies to be released pretrial — judges can only detain someone if there is “clear and convincing evidence” they are likely to harm someone or willfully skip their court date. But Durkin says that’s too high a standard and limits judges’ discretion over the lower-level non-detainable offenses. In particular, he’s concerned that people arrested on drug offenses will be let go without consideration of whether the activities were part of illicit trade that fuels street gang conflicts.

Some supporters of cash bail agree that people accused of low-level offenses likely don’t need to be held in jail before trial. But they say low bail — not no bail — is the best way to handle those situations.

“There’s nothing stopping [judges] from setting that bond at $50, $75 or $10, if they so choose, just to make sure that we stay connected in the system, and that we don’t miss our hearings and court dates,” says Republican Sen. Randy Robertson of Georgia.

Georgia courts spend a lot of money tracking down no-shows, Robertson says, and lawmakers have discovered cases where people with multiple pending felony cases were released without bail only to reoffend. Pretrial release conditions, like ankle or wrist monitors, could be helpful supplements, Robertson says, but aren’t a replacement for cash bail’s ability to ensure that the accused — or the family members or bail bond companies that pay on their behalf — have skin in the game.

Since his bills passed, Robertson says, “the vast majority of people who get out on cash bond have not reoffended because of the fact that a lot of times they have a family or relative that's on the hook should they fail to be in court or do something to violate the conditions of their bond.”

People with a tendency to reoffend remain in jail, he says, because their families “know they’re going to get out and mess up once again,” so they’re less likely to help pay the bond. Robertson says that while there’s limited data tracking on the matter, two years after his 2021 bill, one large county saw failures to appear for aggravated assault charges down by roughly 7 percent.

Trump’s executive order gives the attorney general until Sept. 24 to furnish a list of state and local jurisdictions that have "substantially eliminated” cash bail for people accused of vandalism, looting, burglary, violence and other crimes. At that point, the federal government will seek ways to deny them grants or contracts.