President Donald Trump wants to eliminate “cashless bail” in the nation’s capital and across the country.
But what exactly does that mean, and what is the controversy all about?
“Cashless bail” is a term for criminal justice reform policies that have upended the traditional practice of making bail – allowing people to pay to be released from jail before trial. Instead, reformers have called to replace that money-based system with one that focuses on public safety, defendant’s rights and ensuring people accused of crimes return to court.
Washington, DC, the immediate target of Trump’s ire, removed cash bail in most cases in 1992. Democratic-controlled states like New York, California and Illinois have passed bail reform laws in recent years, as have Republican-controlled states like Alaska and, under Republican Gov. Chris Christie, New Jersey.
Bail reform advocates say a person who has been accused of a crime, but not yet convicted, shouldn’t be held in jail based on what’s in their bank account.
“The overall justification to move away from a money-bail system is basic fairness,” said Insha Rahman, the vice president of advocacy and partnerships at Vera Action, an advocacy group. “There should not be two systems of justice, one for the poor and one for the rich.”
But the reforms didn’t just limit or eliminate cash bail – they also made certain lower-level crimes ineligible for pre-trial detention. Opponents of the reforms say they have tied judges’ hands and created a revolving door of people repeatedly arrested and then immediately released.
“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 and doctoral candidate at St. John’s University. “It’s wrong and it doesn’t fix the system.”
The basics of how bail works
In general, when you are arrested and accused of a crime, you are taken to court in short order for a detention hearing.
There, a judge hears some of the allegations and evidence and then decides whether to keep you in jail before the trial. The judge can also decide to let you out until trial under some conditions, known as bail.
Typically, bail includes a monetary amount that is returned to you at the end of the case. Bail can range from the non-monetary “personal recognizance” to thousands or even millions of dollars. The amount is ostensibly based on some combination of the severity of the crime and a total that incentivizes you to come back to court for trial.
Over time, this system led to an industry of bail bond businesses that pay off your bond in exchange for a fee. If you can’t afford to pay, you are stuck in jail until trial.
In the US, about 562,000 people are detained in local jails, and about 80% of them have not been convicted of a crime, according to the Prison Policy Initiative.
The teenager who spent 3 years in Rikers because he couldn’t pay $3,000
The problem with the money-based bail system is best exemplified by the short life of Kalief Browder.
The 16-year-old New York high schooler was arrested in 2010 on charges of stealing a backpack, and unable to pay the $3,000 bail, he spent three years at New York’s notorious Rikers Island jail without being convicted of a crime. The charge was eventually dropped, but the trauma of the years of imprisonment, including long periods in solitary confinement, left its mark. He died by suicide in 2015.
Browder’s story, later turned into a Netflix documentary, spurred greater awareness about the unfairness of the money-bail system and spurred calls for reform. In 2017, the bipartisan duo of Sens. Kamala Harris and Rand Paul introduced a bail reform bill that featured Browder’s story. (The bill did not become law.)
At the other end of the spectrum, wealthy people are able to use their money to avoid jail time before trial. The movie mogul Harvey Weinstein, for example, was charged with rape and criminal sex act in 2018 and then released on $1 million bail.
Rahman previously worked as a public defender in the Bronx, New York, and said she saw people stuck behind bars for minor crimes, like jumping the subway turnstile or possessing marijuana, just because they were poor.
“What I saw every day in the courts was people were there in jail because they couldn’t afford the price of their freedom,” she said.
“For every single one of those cases, from the most minor and insignificant to the most serious and concerning, the bail system was exactly the same,” she added. “An amount of money would be set, and whether or not the person could pay it was the determining factor of whether they stayed in jail or were released. That privileges money and wealth, not public safety.”
Advocates for reform also say spending any time in jail is destabilizing and can lead to losing a job or housing – setting the stage for further crime.
Further, the idea that requiring someone to post bail money will ensure they come back to court misunderstands criminal behavior and why people fail to show up for trial, said David Olson, the co-director of Loyola University Chicago’s Center for Criminal Justice.
“It’s not that they fear losing money, it’s things like they have a substance use disorder, or they’re homeless, or they’ve got mental health issues, or they have no reliable transportation to get to court,” he said.
The impact of bail reform policies
The bail reform movement has succeeded in changing bail systems in several states over the past decade.
New Mexico largely eliminated cash bail in 2016, as did New Jersey in 2017 and Alaska in 2018. New York’s bail reform efforts became law in early 2020, and Illinois’ law began in 2023.
While each state law is different, these laws have generally limited or eliminated cash bail for misdemeanor offenses. In their place, the new systems try to use less restrictive means to ensure defendants return to court, such as supervisory release, electronic monitoring or connections to pre-trial services.
The impact of these changes is a major source of debate.
In New York, the bail reform bill signed into law by former Gov. Andrew Cuomo made certain lower-level crimes completely ineligible for pre-trial detention, such as shoplifting or misdemeanor assaults. Most violent crimes are still eligible for detention and cash bail.
Yet the law has faced sharp criticism and has been changed several times to give judges more discretion in deciding when people can be kept in jail pre-trial.
New York City’s mayor and the state’s governor, both moderate Democrats, say the law has allowed people accused of low-level crimes to remain free despite repeated arrests. For example, in 2022, Adams and police officials said 211 defendants were each arrested at least three times for burglary through June of that year, a major jump compared to the 87 people in the first six months of 2017.
“Some of the bail changes done in 2018, reformed again in 2020, were still not doing the job that I needed to be done here, and that is to protect New Yorkers,” Gov. Kathy Hochul said in 2022.
Gagliano, the former FBI agent, said he believed the bail reform laws were an overreaction to tragic situations like Browder’s. He said police are frustrated that they can arrest people and the defendants are released before the paperwork is even finished.
“You’re now bringing them in, putting them in front of a judge, the judge’s hands are tied and the judge has to release the person because that crime in and of itself is not eligible for bail,” he said. “To me, it’s just throwing the baby out with the bathwater.”
However, researchers have questioned the connection between bail reform and crime stats.
In one study, the Brennan Center for Justice, a nonprofit progressive think-tank, analyzed crime data from 33 cities from 2015 to 2021 and found no evidence that bail reform affects crime rates. More broadly, jurisdictions across the country saw crime rates rise in the years after the Covid-19 pandemic, only to then decline in the past couple years.
Olson, who is studying the impact of Illinois’ bail reform law, similarly said the early evidence suggests the law there has had an altogether muted impact.
“We got rid of money, the jail population went down a little bit, the (pre-trial) hearings got a little bit more complicated and take more time,” he said. “It doesn’t seem like crime has gone up. It doesn’t seem like failure to appear rates have changed a whole lot.”
Trump’s executive orders target ‘cashless bail’
Still, the president is one of those critics of the reforms.
Trump signed executive orders at the White House on Monday that would withhold grant funding to districts that have a “cashless bail” policy and would move applicable criminal defendants in DC to federal custody to ensure they’ll be held in federal prison pre-trial.
One order directs Attorney General Pam Bondi to send the president a list of states and local jurisdictions that have “substantially eliminated cash bail” within 30 days. Federal funding for those jurisdictions could be at risk.
“Our great law enforcement officers risk their lives to arrest potentially violent criminals, only to be forced to arrest the same individuals, sometimes for the same crimes, while they await trial on the previous charges,” the executive order reads. “This is a waste of public resources and a threat to public safety.”
While signing the orders at the White House, Trump offered his own views on the policies.
“That was when the big crime in this country started,” Trump said.
“They kill people, and they get out – cashless bail,” he added. “They thought it was discriminatory to make people put up money because they just killed three people lying on a street.”
Policies vary by jurisdiction, but judges can generally detain defendants accused of serious crimes such as murder or manslaughter before trial.
The president has his own personal experiences with cashless bail.
After his arraignment on charges of falsifying business records in New York in 2023, he was released on his own recognizance – without putting up any cash. He similarly was released on his own recognizance in his two federal criminal cases in Washington, DC, and Florida.
In his case in Fulton County, Georgia, where he faced charges connected to alleged efforts to overturn his 2020 election loss, he had to post a $200,000 bond, contributing 10% himself and working with a bail bonds company to cover the rest.
CNN’s Alayna Treene, Holmes Lybrand, Tara Subramaniam and Daniel Dale contributed to this report.
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