Keep Bail Decisions Local and Evidence-Based

President Donald J. Trump has issued two new executive orders that he says will “end cashless bail to protect Americans.” One targets Washington, D.C. where the federal government holds explicit constitutional power over local laws, should it choose to exercise it. The other takes aim at any “state and local jurisdictions 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, including offenses involving violent, sexual, or indecent acts, or burglary, looting, or vandalism.” The problem is that pretrial policy for state crimes has always been a matter of state law. Policing power belongs to states and localities, not the White House.

The politics of bail can be misleading and are often used as political fodder. “Cash bail” is a simple phrase, but few people understand what it actually means. When someone is arrested, a judge sets a dollar amount (bail) for their release. If the person can pay, they go home. If not, they stay in jail while awaiting trial—sometimes for weeks or months. Whether someone walks free has little to do with their risk to the community or likelihood of returning to court. It has everything to do with money.

That is why several states and cities have started moving away from cash bail. Illinois is the first state to abolish it outright, but New Jersey and New Mexico have also made major changes, largely replacing money with a risk-based system. Texas and Tennessee have taken steps to reduce the use of cash bail in serious cases in favor of preventative detention. These models allow judges to detain those who are truly dangerous while avoiding the unfairness of keeping low-risk individuals locked up simply because they are poor.

While Trump argues that ending cash bail fuels crime, the evidence says otherwise. Violent crime in D.C. fell sharply last year, and states that have moved away from cash bail have not seen spikes linked to those changes. Moreover, the administration may soon discover that while some jurisdictions do not use cash bail for violent or sexual offenses, they do allow judges to deny bail entirely in those cases. In fact, giving judges the ability to detain based on risk instead of setting sky-high bail amounts is more consistent with both the Constitution and common sense. The Eighth Amendment prohibits excessive bail, but courts have long allowed preventive detention in serious cases. Detaining people outright is far more transparent—and far more honest—than setting bail so high it becomes impossible to pay for some, but not all.

So if crime is not the real issue, what is? The deeper problem here is federal overreach. Trump is trying to pressure states into reversing their bail reforms—not by changing laws directly, but by threatening federal funding. Yet the federal government provides very little direct funding to state courts, and under Supreme Court precedent, it cannot cut off unrelated dollars as punishment. This spending power is meant to encourage cooperation, not serve as a weapon.

The irony is that we already know what works better than cash bail. Modern pretrial systems use validated risk assessments to guide judges. Courts can require supervision or electronic monitoring. Many offer needs assessments to connect people with mental health or substance use treatment as well as reminders and transportation support to help people make court. And when an individual poses a clear danger, judges can detain them without allowing them to buy their way out. These approaches protect communities and strengthen court compliance without punishing poverty.

The real debate we should be having is not about dollar amounts. It is about who should be detained before trial and why. Are we holding the right people? Should more be detained, or fewer? What actually happens when someone commits another offense while on release? These questions lead to safer, fairer policies.

Should New York consider “dangerousness” in its bail determinations? Yes. Should Illinois or other states and communities adjust their pretrial detention laws to cover more offenses? Perhaps. But these decisions belong to them and their voters. If the president believes that research supports a different approach to pretrial decisions, then the right thing to do is share that evidence and invite states and municipalities to weigh it—not to impose federal dictates.

If Washington wants to play a role, it should invest in answering those questions. Federal dollars would be far better spent on research and support for evidence-based practices than on threats of unconstitutional overreach. State sovereignty and public safety both point in the same direction: Bail decisions should stay local and be guided by evidence, not politics.