This post is part of Challenging Precedent, a blog of the Stanford Center for Racial Justice examining race, law, and regulation in the Trump era.

In the midst of the Trump administration’s broader crackdown on crime, President Trump signed two executive orders targeting “cashless bail” policies across the country. The term describes a set of criminal justice reforms that have replaced America’s traditional money bail system with an approach that detains defendants before trial only when they pose a genuine public safety risk or are likely to flee, rather than simply because they can’t afford to pay. One order threatens to cut federal funding from states and local jurisdictions that have implemented cashless bail reforms, the other specifically targets Washington, D.C.’s practices, drawing on the federal government’s unique authority over the nation’s capital. These executive actions are more than just a policy reversal, they signal a profound challenge to a decade-plus experiment in making America’s justice system more fair and more focused on actual public safety risks. 

Over the last ten years, jurisdictions across the U.S. moved to phase out money bail. The rationale behind these reforms has been consistent: a person’s wealth should not determine whether they are released or remain in jail before their trial. Pretrial detention can lead to serious collateral consequences: lost jobs, evictions, and family disruptions that economists have documented have significant costs. Studies have further shown that pretrial detention can pressure defendants into pleading guilty, a finding that makes sense given defendants’ eagerness to be released from jail, but one that calls into question the fairness of a system where simply having money may strengthen a person’s bargaining position before trial.

In 2017, New Jersey virtually eliminated cash bail in favor of a risk assessment approach, a reform championed by Governor Chris Christie and approved by 62% of the state’s voters in a 2014 constitutional referendum. New York followed in 2020 by ending money bail for most misdemeanors and many non-violent felonies. In 2021, the California Supreme Court issued a unanimous decision in In re Humphrey holding that “conditioning freedom solely on whether an arrestee can afford bail is unconstitutional.” When Illinois enacted the Pretrial Fairness Act in 2023, it became the first state to completely abolish the use of money bonds.

Opponents of these reforms argue they have tied judges’ hands and created a revolving door, allowing defendants who are repeatedly arrested for similar offenses to be released awaiting trial. Trump’s broader order echoes these arguments and represents a significant federal intrusion into what has traditionally been a state and local matter—criminal justice policy. While the Constitution sets a floor against “excessive bail” through the Eighth Amendment, states and jurisdictions have remained free to provide stronger protections for pretrial release. The Trump administration’s approach upends this federalism principle and circumvents the democratic processes that have traditionally governed these decisions. When New York scaled back its bail reforms after political pressure and public debate, the system was working as designed with local accountability driving policy adjustments.

Trump’s order employs an increasingly relied-upon mechanism: withholding funds from states and local governments that do not comply with administration demands. The administration has argued the president has sweeping executive powers to unilaterally freeze Congress’s appropriations, and taken steps to wield this authority across Trump’s policy agenda—from curbing DEI initiatives to strengthening immigration enforcement to combating antisemitism on college and university campuses. While lower federal courts have repeatedly ruled against the administration on funding disputes, the Supreme Court’s recent trend toward expanding executive power could eventually provide the president with legal footing for these types of federal policy interventions.

The White House’s announcement of the cashless bail actions leaned heavily on anecdotes—a New Yorker, for instance, arrested six times in a year and released without bail despite dozens of prior convictions—while providing little systematic evidence that the reforms have increased crime or compromised public safety. In fact, the bulk of the research suggests the opposite. A national study of 33 cities found no relationship between bail reform and crime rates, while another study of four jurisdictions (Chicago, Houston, Philadelphia, and New Jersey) observed no marked change in violent or nonviolent crimes following reforms. A third study focused specifically on New York found that eliminating bail for most misdemeanor and nonviolent felony charges actually reduced recidivism. Meanwhile, the only analysis cited by the Trump administration was not conducted by independent researchers, but rather a limited study of 200 individuals in one California county performed by that county’s District Attorney’s Office—not the kind of evidence that often drives national policymaking.

In the end, the administration’s focus on bail looks less like a response to data than to politics. For years, money bail has operated as a tool judges and prosecutors use when they feel they can’t in good conscience detain a person but also can’t deal with the optics of just letting them walk out the courthouse doors. Cashless bail systems take away that crutch: a person is either a flight or public safety risk warranting detention or they’re not. The new executive orders invite a return to managing appearances instead of risks, bringing politics back into a question that researchers and local democracies have been trying—imperfectly but earnestly—to decide on the merits.

Dan Sutton is the Director of Justice and Safety at the Stanford Center for Racial Justice.