Executive Orders to End Cashless Bail Are Misguided and Serve to Criminalize Poverty
On Monday, August 25, Trump signed two executive orders aimed at ending cashless bail in Washington, D.C. and nationwide. These orders are only the latest in a long string of White House policies and proclamations that aim to ramp up control, coercion, and surveillance of communities that are disproportionately poor and disproportionately Black and Brown. The orders come shortly after the White House declared an unsubstantiated “state of emergency” in D.C., placing the city under federal, militarized control and terrorizing, displacing, and arresting protestors and people living in encampments. Trump’s characterization of crime in D.C. is proven fiction, and to the extent that some pockets of the District are facing structural issues that may lead to homelessness or spur political dissent, those communities need resources and support, not military tanks and handcuffs.
The modern system of cash bail likely originated as early as the fifth century, when “personal sureties” — relatives or friends of people accused of causing a harm or injury to someone else — agreed to pay the injured party some amount of money if the accused did not show up for their court dates or fulfill other obligations agreed to by the parties. In the American colonies, secured money bonds began to replace the personal surety system, with criminal defendants paying some amount of money to the court prior to being released, that they would then get back if they fulfilled their court appearance obligations. This change marked a departure from the surety system — aimed at avoiding blood feuds between families and placing an emphasis on interpersonal obligations — as the new system shifted the obligations to being between the individual defendant and the government. The new system also provided a mechanism for pretrial freedom, invoking the “innocent until proven guilty” framework of legal justice that was fundamental to American constitutional principles and the origins of the judiciary.
This cash bail system has been the norm in the criminal legal system for centuries. In most jurisdictions across the country, when someone is arrested and charged with a crime they appear before a judge shortly after their arrest for what is typically called an arraignment. At the arraignment hearing, the defendant is made aware of the charges against them, appointed an attorney if they do not already have one, and assigned bail. When assigning bail, the judge typically considers factors like flight risk and risk to public safety. Some circumstances, like charges that are extremely violent in nature or the defendant having excessive resources and thus posing a substantial flight risk necessitate that a defendant be detained pretrial without the possibility of bail.
When bail is set, some jurisdictions rely on “bail schedules” to assign a set bail amount depending solely on the charges and the amount of times the defendant has been arrested before, without considering other factors at all. Many advocates and courts have held that these types of schedules are unconstitutional because they fail to account for defendants’ ability to pay bail, resulting in an unequal system of criminal justice where people who are charged with the same exact crimes have different criminal outcomes and different access to pretrial freedom based solely on their ability to pay bail. Both the Department of Justice and the American Bar Association have also vocalized opposition to the use of bail schedules, and Equal Justice Under Law has filed 10 federal lawsuits challenging bail schedules, many of which have been successful.
Other jurisdictions do not use schedules, and allow judges to exercise discretion in weighing myriad factors including flight risk, danger to public safety, the defendant’s financial status and ability to pay bail, the defendant’s health, the defendant’s home and work obligations, and the availability of pretrial monitoring and supervision, which may mitigate against potential risks of pretrial release.
In all situations, the concept of cash bail is premised on the notion that all criminal defendants are presumed innocent and that it is often just, sensible, and economical — both for the defendant and for the government — to grant pretrial liberty to a person who has not been found guilty of the crime with which they are charged.
If the principles of the American criminal legal system lead us to the conclusion that people should not be detained pretrial absent extenuating circumstances, it makes little sense to place any price tag at all on pretrial freedom. Indeed, more than 500,000 people (a quarter of all those incarcerated) in the United States are being held pre-trial, and the vast majority are in jail solely because they cannot afford their bail amount. And while the median income of people arrested in the U.S. is $19,650 for men and $13,890 for women, the average felony bail amount is $10,000. The result of cash bail systems — even those that allow for some judicial discretion — is that tens of thousands of arrestees are incarcerated pretrial (at a massive cost to governments and taxpayers) solely because they are poor.
The consequences of cash bail have been devastating. Kalief Browder, a high school student arrested in 2010 for allegedly stealing a backpack, spent three years in Rikers Island jail without ever being convicted because he was unable to post $3,000 bail. The charges were eventually dropped entirely and Kalief was released, but the lasting trauma of his incarceration led to his death by suicide in 2015.
In Alabama, 41-year-old mother of two Christy Dawn Varden was arrested outside of a Wal-Mart for allegedly shoplifting and charged with $2,000 bail. Christy had no income, severe health issues, and supported her children using only $200 in food stamp benefits. Christy sat in jail for a full week awaiting a court appearance before the City of Clanton released her, only after a federal lawsuit was filed. Two months after her release, Christy died suddenly.
In Sacramento, 50-year-old Gary Welchen was homeless and disabled when he was arrested on charges of burglarizing an uninhabited dwelling. Gary’s only source of income was Social Security Disability, and he could not afford the $10,000 bail he was assigned. While someone with the means to afford bail would have been released immediately, Gary spent six days in jail.
These types of stories have led to a slew of lawsuits and policy reforms over the last several decades. Beginning in 1982, the District of Columbia began to roll back mandatory cash bail policies in favor of releasing defendants on their own recognizance (sometimes called “personal recognizance”) for misdemeanor charges as well as situations where pretrial supervision could mitigate against any risks or where pretrial detention would cause irreparable harm to the defendant.
In New Mexico, a 2016 law passed by 91% of the state legislature and approved by 87% of voters made it so that prosecutors had to prove by clear and convincing evidence that no release conditions could mitigate against flight risk or public safety concerns in order to deny pretrial release to criminal defendants, and required that no one be held in jail pretrial solely because they could not afford bail.
New York and New Jersey passed similar legislation, and in 2023, Illinois became the first state to completely eliminate cash bail — a move approved by the state Supreme Court, which held unanimously that the legislation complied with the federal and state constitutions.
Bail reform measures, or “cashless bail,” give the criminal legal system an opportunity to make good on its promises of equal justice and presumed innocence. These measures ensure that people are not subject to different criminal outcomes because of their poverty, remove unconstitutional price tags on pretrial liberty, and give criminal defendants the ability to continue working and caring for their families while they await trial, all while saving governments and taxpayers billions of dollars otherwise spent on incarcerating people who have not been found guilty of any crime. Importantly, cashless bail and bail reform policies do not mean that no one can be held pretrial: even in Illinois, where cash bail is fully eliminated, defendants are still eligible for pretrial detention (with no bail set) if they have been charged with certain violent crimes or the prosecutor can show that they pose a public safety or flight risk.
Despite what the White House has suggested, cashless bail and bail reforms do not increase crime rates. A 2024 Brennan Center for Justice study found no statistically-significant relationship between bail reform and crime rates, and a study by the Loyola Chicago Center for Criminal Justice found that in the first year of Illinois’ reforms, statewide crime fell by 11%, violent crime declined 7%, property crime declined 14%, and failure to appear warrant rates decreased.
Ignoring the clear facts about what cashless bail actually is and the overwhelmingly positive results that bail reform policies have had on crime rates and on governments’ bottom lines, the White House’s newest executive orders reflect what seems to be Trump’s personal frustration: that the protestors and homeless individuals he’s had arrested are not being incarcerated pretrial, despite the fact that they have not been found guilty of any crimes and that, in most cases, no charges have even been filed against them.
The first order, entitled “Measures to End Cashless Bail and Enforce the Law in the District of Columbia,” directs federal law enforcement to “ensure that arrestees in the District of Columbia are held in Federal custody to the fullest extent permissible under applicable law,” and directs relevant federal agencies to sanction the District, including by withholding funding and services, unless the District changes its policies with respect to cashless bail.
The second order, entitled “Taking Steps to End Cashless Bail to Protect Americans,” threatens to withhold federal funding, including grants and contracts, from jurisdictions that have implemented cashless bail policies.
These orders are riddled with inaccuracies, including that cashless bail policies are “a waste of public resources and a threat to public safety,” when we know with certainty that jurisdictions that have enacted cashless bail have seen a marked decline in crime and massive savings in public resources that would have otherwise been spent incarcerating people who are legally innocent. The orders also emphasize the need to detain defendants who pose a threat to public safety or who have committed violent acts, but those directives are not at odds with cashless bail jurisdictions, all of which have clear provisions to ensure the pretrial detention of individuals who pose public safety concerns or flight risks, as well as those charged with certain violent crimes.
Trump’s own experiences with the law illustrate the wealth-based discrimination inherent to cash bail: in 2020, he posted $200,000 to secure his pretrial freedom when he faced charges in Fulton County, Georgia for participating in a criminal enterprise to overturn the results of the 2020 election. Eighteen of his co-defendants, including Rudy Giuliani, Mark Meadows, and Sidney Powell, all paid upwards of $75,000 in cash bail to secure their pretrial release. Trump himself also benefitted from a cashless bail system in New York, when he was released on his own recognizance after his arraignment on charges of falsifying business records.
Trump’s history with bail show that he is largely unconcerned with the experiences of white, rich people in the criminal legal system. He knows from experience that he, and people who look like him, will always be able to buy their way out of trouble. But he wants to make sure that everyone else, especially people he does not like to see or hear, can be controlled, coerced, and caged without any escape.
At their core, these newest executive orders are thinly-veiled attempts to criminalize poverty, and the fallout will be felt hardest by communities of color. The Constitutional promise of equal justice under the law is clear, and there can be no equal justice when people’s ability to access pretrial freedom depends on the depth of their pockets. Equal Justice Under Law is proud to be one of the litigation leaders in ending cash bail, and we are committed to doing everything we can to prevent and alleviate the dangerous consequences of these orders. If you or your organization would like to connect with us on this issue, please reach out.