President Trump’s executive orders threaten cities and states that allow cashless bail

This week, President Donald Trump signed two executive orders about pretrial detention, escalating Trump’s federal takeover of Washington, D.C., and threatening state and local jurisdictions that have enacted bail reforms. Both orders contradict available evidence and run counter to defendants’ constitutional rights.

Earlier this month, Trump declared a “crime emergency” in Washington, D.C., deploying National Guard troops and placing the Metropolitan Police Department (MPD) under federal oversight. One of his executive orders attempts to build on that federal takeover by directing law enforcement to “work to ensure that arrestees in the District of Columbia are held in Federal custody to the fullest extent permissible under applicable law, and…pursue Federal charges and pretrial detention for such arrestees whenever possible…”

Prior to this order, suspects arrested by federal agencies were placed in federal custody, while those arrested by MPD were held locally. Trump’s order also threatens D.C.’s access to federal funding, services, and approvals unless the city changes its policies on pretrial detention.

A second executive order similarly threatens to withhold federal funding from states and local jurisdictions that Attorney General Pam Bondi determines to have “in the Attorney General’s opinion, 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, including offenses involving violent, sexual, or indecent acts, or burglary, looting, or vandalism.”

These measures strike at the heart of a fundamental principle of the U.S. justice system: individuals accused of crimes are presumed innocent until proven guilty. While defendants charged with serious violent offenses or posing genuine threats may be detained pending trial, most are legally entitled to pretrial release. Courts can and do impose conditions on a defendant’s release, such as electronic monitoring or supervision through a pretrial services agency.

Monetary release conditions, commonly referred to as “cash bail,” are among the most common types of pretrial release conditions in the United States. Cash bail allows defendants to post an amount of money with the court as collateral. If they return for all hearings, the money is refunded. If they fail to appear, the funds are forfeited, and additional penalties may follow.

Historically, the purpose of cash bail was to ensure court appearances. But reforms in the 1970s and 1980s expanded judicial discretion to consider public safety, enabling judges to set high bail amounts to detain certain defendants.

While bail can be appropriate in some cases, its application often punishes poverty rather than crime. Many defendants are unable to afford the cost of bail and are consequently detained for no reason other than their inability to pay.

Research suggests that bail decisions can reduce employment, coerce defendants into accepting plea bargains, and increase the probability that defendants are convicted. Recognizing these harms, criminal justice reformers have advocated limiting or replacing cash bail with non-monetary conditions.

Washington, D.C., was the first jurisdiction to substantially replace cash bail with a risk-based system in the 1990s. Since then, many other jurisdictions have experimented with reforms. Most continue to allow cash bail in some cases, but in 2022, Illinois became the first state to fully abolish it.

The evidence on bail reform contradicts Trump’s rationale for his executive orders. Last year, Reason Foundation published a report reviewing recent studies on cash bail. The report concluded that the bulk of available evidence suggests that curtailing the use of monetary release conditions among low-risk defendants does not cause increases in failures to appear or new pretrial crimes. There is even some evidence that pretrial reforms that reduce detention among low-risk, bond-eligible defendants may improve public safety. At the same time, the report noted that rigorous evaluations of completely cashless systems, such as those in D.C. and Illinois, were still limited.

Since then, new evidence from Illinois has strengthened the case for bail reform. A recent evaluation by Loyola University’s Center for Criminal Justice found that Illinois’ abolition of cash bail has largely achieved its goals of reducing unnecessary pretrial detention without undermining public safety. Crime rates in Chicago have actually declined since the reform, undermining claims that cashless systems fuel lawlessness.

Taken together, these findings reveal that the Trump administration’s actions are not grounded in evidence. By attempting to punish cities and states that have embraced reform, the executive orders disregard the presumption of innocence and risk reviving a system that detains people for the simple offense of being poor. Targeted and carefully designed bail reform can both protect public safety and uphold constitutional values. The administration’s crackdown is neither.

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