Trump takes aim at get-out-of-jail-free policies

In 2022, a New York man with a prior conviction for kidnapping his ex-girlfriend at gunpoint killed his estranged wife in front of her three children. Two years later, a suspected member of the Tren de Aragua criminal gang was arrested in Florida for alleged sex trafficking. He had previously been charged with attempted murder and drug trafficking. That same year, a Washington, D.C., man beat two teachers in front of toddlers at a day care center. He had multiple prior run-ins with the law.

In each of these cases, according to the White House, the offenders were let out of jail without being asked to pay a cent in bail shortly before committing their next crimes. Last week, President Donald Trump signed two executive orders seeking to end cashless bail policies for violent offenders in Washington, D.C., and similar policies across the country.

The Trump administration, its supporters, and many law enforcement officials say cashless bail policies, like the ones that let those alleged offenders out onto the street, threaten public safety nationwide. But experts disagree over whether these policies put communities in any more danger than ordinary bail. Some argue that requiring cash bail policies could undermine the presumption of innocence and show preference to wealthy Americans over those with lower incomes.

“If your goal is to protect public safety, it’s not actually clear that ending cashless bail would accomplish that, and it’s possible that it might actually do the reverse and harm public safety,” said Paul Heaton, a professor at the University of Pennsylvania’s Carey Law School, where he serves as academic director of the Quattrone Center for the Fair Administration of Justice.

Trump’s executive orders authorize the federal government to pressure Washington, D.C., and other jurisdictions to end policies that would allow potentially violent offenders back onto the streets after they’ve been arrested for an offense but not convicted of it. Moments before signing the executive orders in the Oval Office, Trump said the advent of cashless bail policies in the United States ushered in an era of rampant crime.

“That was when the big crime in this country started,” Trump said. “Somebody kills somebody, they go in. ‘Don’t worry about it. No cash. Come back in a couple of months. We’ll give you a trial.’ You never see that person again. And, I mean, they kill people and they get out.”

In 2024, a study by the Brennan Center for Justice found that cashless bail policies did not increase or decrease crime at all across the country. According to the study, the policies had almost no noticeable effect on public safety.

Washington, D.C., specifically found that most defendants released before their trials were not rearrested. Roughly 90% of all defendants over the past several years who were let out into the community while awaiting trial still appeared in court at all of their scheduled hearings, according to the city’s Pretrial Services Agency.

In a fact sheet attached to the executive orders, the Trump administration cited a study conducted by the Yolo County, Calif., district attorney showing that “zero bail” policies led to the widespread release of violent offenders who subsequently committed more crimes upon their release.

“The Yolo County study is a very flawed methodological study,” said Jeremy Cherson, director of communications at the Bail Project. “It has sampling errors, methodological errors. There are significant problems with it. It was also done during the COVID-19 pandemic, which creates a lot of noise for determining what happened.”

The study examined a pandemic-era policy that sought to reduce the density of the state’s incarcerated population to protect inmates from contracting COVID-19. No safety checks were conducted to determine whether offenders posed a threat to the public before they were released—something Heaton says is a feature of many cashless bail policies.

But conservatives—including some who’ve served in law enforcement—argue there are still good reasons to keep cash bail policies in place. New York state assemblyman and former NYPD officer Joe Angelino says his state’s cashless bail policies allow dangerous criminals back onto the street.

“When an arrested person is brought before a judge for arraignment, New York state is THE ONLY state in the U.S. that does not allow that judge to consider protecting the community from the offender or the offender’s past criminal acts when setting bail, even if the past acts happened days or even hours previously,” Angelino wrote in an op-ed published in The Evening Sun, a local newspaper based in Norwich, N.Y.

The National Fraternal Order of Police and the National Association of Police Organizations both issued statements supporting Trump’s attempts to end cashless bail programs.

“Our officers understand the real-world consequences of policies that prioritize leniency over accountability, usually at the expense of community safety and the rule of law,” Patrick Yoes, national resident of the Fraternal Order of Police, said in a statement. “We are proud to announce our full support for President Trump’s executive order addressing the dangers of cashless bail systems.”

Zack Smith, a senior legal fellow at the Heritage Foundation, said that one purpose of bail is to ensure an accused person returns for their court appearance. “And it’s to make sure that if someone is released back into the community pending trial, that they’re not going to pose a danger to the community,” he said. The Constitution explicitly permits states and jurisdictions to impose bail—it only requires that bail not be excessive, he said.

But that’s what bail has become for many Americans, say proponents of bail reform. Defendants who cannot afford bail must await trial in jail while wealthier defendants go free. They also often fall prey to bail bonds agencies that routinely utilize predatory lending practices, Cherson said.

Heaton from the University of Pennsylvania criticized not only bail but the practice of pre-trial detention.

“I think the idea that people who are legally innocent, if they’re accused of a serious crime, we just have to put them in jail—it seems problematic,” Heaton said. “I think President Trump himself is a great example of this, right? He was charged with felonies in Georgia, New York, and in the federal system. I don’t think there’s too many people who think it would have been particularly fair for those several years, while his cases were pending, for President Trump to have been held in jail because he had been accused of committing felonies.”

In three of the five cases in which Trump faced criminal or civil charges in or around the 2024 election season, he was not required to post any bail. In a New York civil fraud case, he was required to post a $175 million bond before he could appeal a court ruling finding him liable for civil fraud. And after he was arrested in Fulton County, Ga., he paid 10% of his bail out of pocket and worked with a local bail bonds agency to pay the rest.

Heritage’s Zack Smith said that the framers of the U.S. Constitution looked at the matter differently. “If you look at the constitutional language, it doesn’t say that bail is prohibited,” he said. “It simply says that excessive bail is prohibited. And so this idea that someone should never be held pending their trial, that is something that is anathema to our American legal system.”

Tolman and Heaton argued that cashless bail, in many situations, is a fair or even ideal practice. But for certain offenses—or for certain individuals—they said that imposing a form of cash bail or mandatory pretrial detention is entirely warranted.

“Pretrial detention should be limited to a narrow set of circumstances where there’s a high probability that someone is either going to commit a serious new crime, or they’re not going to show up for court,” Heaton said. “And we ought to have a thorough process for making that determination.”

Tolman said that if a jurisdiction asked him to design their bail system, he would base it on the federal bail system. “Every criminal case would have a detention hearing,” he said. “Both sides would be allowed to either put on evidence or make arguments that an individual is or is not a danger to the community, and then the judge would rule on whether or not there’s sufficient evidence that shows they are a risk. And if they are a risk to the community, then they’re placed into custody. I mean, that’s your ideal system.”

In terms of bail amounts, Tolman said he would model it off the state of Texas’ bail system: “Let the judges assess whether someone is or is not a danger to the community, but at the same time, if they find that they aren’t … and they don’t have the resources to post bail, then the judge can set it at an amount that they can afford. And maybe that’s zero bail, but you’ve already assessed whether or not they’re a danger to the community.”