President Donald Trump is cracking down on states and cities with cashless bail policies. But advocates in those states say their systems have been successes — and they’re likely to go to court to protect them.
Trump’s executive order on Monday directed Attorney General Pam Bondi to create a list of cities and states using cashless bail policies. Those local governments will then be targeted for federal funding cuts.
In the executive order, the Trump administration said cashless bail creates a situation where “law enforcement must arrest the same individuals multiple times, and dangerous criminals are sometimes rapidly released.”
In 2023, Illinois became the first state to fully implement cashless bail, and Chicago has been a consistent target of Trump’s ire against cities led by Democrats, particularly on crime and immigration. But in two years without cash bail in Chicago, its chief public defender told NOTUS the city has still managed to reduce crime and seen positive effects from the law.
“There were talks that, you know, it would create the purge, that … there’d be more murders, more shootings, more everything, and you’ve actually seen the exact opposite,” Sharone Mitchell Jr., chief public defender in Cook County, told NOTUS. “You’ve actually seen crime rates actually be reduced.”
According to Mayor Brandon Johnson’s office, violent crime overall in Chicago is down 21% year to date as of Aug. 25, with homicides down 32%. Carjackings are down almost 50%.
Mitchell said the reduced crime rate isn’t attributable to the pretrial reform law, since many factors play into crime reduction, but that the law nevertheless hadn’t spiked crime as many feared it would.
“Clearly the predictions that this change would increase murders or increase shootings or anything … the last two years, we’ve seen that those predictions were completely false,” he said.
On Monday, Trump repeated his threats to deploy National Guard troops to Chicago to address crime, just as he did in the District of Columbia over a week ago, both over the objections of city officials.
“I made the statement that next should be Chicago because, as you all know, Chicago is a killing field right now, and they don’t acknowledge it,” Trump said Monday.
D.C. is a prime target for rolling back cashless bail reform, too. The District has used the system since 1992, and another order Trump signed Monday directs city officials to end it.
But while the federal government has some jurisdiction over law enforcement and criminal justice in D.C., states are likely to go to court to protect their own laws. Illinois is the only state to fully eliminate cash bail, but New Jersey and other states, cities and counties have adopted reforms that have significantly curtailed its use.
Harris County, Texas, is one such place. Genesis Draper, the county’s chief public defender, told NOTUS that Harris County has only reformed its bail system for misdemeanors, primarily nonviolent ones, and that’s because of a consent decree from a federal court in 2019. Draper pointed to consistent, court-mandated monitoring of the results of that reform in the county, which has found no uptick in crime.
“There’s no question about whether or not misdemeanor bail reform was necessary and that it’s working,” Draper said.
State and local officials could respond with litigation, as they did with Trump’s crackdown on sanctuary cities. A federal judge on Saturday halted the administration’s efforts to withhold funds from “sanctuary cities,” where local officials aren’t required to cooperate with federal immigration enforcement.
That might be a bellwether for how a legal fight over cashless bail would kick off. But so far, many officials NOTUS contacted were hesitant to weigh in on whether their state would take the Trump administration to court over cashless bail specifically. And there’s no grounds for a suit until the administration actually takes action on restricting funds, meaning any potential plaintiffs are waiting it out.
“No legal action can be taken until the Trump administration makes a move,” said Insha Rahman, vice president of advocacy and partnerships at the Vera Institute, an organization focused on ending mass incarceration. “But lawyers will be ready to sue if Trump makes good the threat in the executive order to target other cities that have enacted pretrial reform.”
Draper, from Texas, said it’s “definitely” a “possibility” that state or city officials could challenge the administration in court over cashless bail. But Harris County is used to the attacks — Texas’ Republican-held state legislature and governor have repeatedly pushed against the bail reforms.
A spokesperson for Gov. Phil Murphy of New Jersey declined to comment on the results of cashless bail in the state and whether state officials would seek to protect their system from the Trump administration.
In 2019, New York eliminated cash bail for misdemeanors and nonviolent felonies, but Gov. Kathy Hochul later pushed through some reforms to the law. Still, Hochul has been the target of Republican hits over cashless bail, but a spokesperson said in a statement that New York had not eliminated cash bail and that Hochul had changed bail laws “so violent offenders are held accountable” and to give judges more say in whether defendants should be detained before trial.
Advocates for cashless bail argue that it removes the ability for dangerous criminals backed by money to buy their way out of jail, while poorer defendants who pose little threat are stuck in jail because they can’t pay.
One year into the system in Illinois, research from Loyola University Chicago found that cashless bail created longer and more substantive bail hearings, caused fewer people to be held in jail pretrial and created no “dramatic increase” in released defendants missing court.
Judges now grant a “yes” or “no” on whether to detain a defendant before trial, after hearing arguments and reviewing evidence from both sides at a bail hearing after an arrest. The system also helps free up the docket, since every bail case is not treated the same.
Rahman of the Vera Institute said some low-level citations in certain places don’t even require a hearing, freeing up the docket for busy judges.
“What that does is that actually clears that court so that judges don’t have to treat every case, from a minor traffic ticket or quality-of-life offense to a very serious robbery or homicide, they don’t have to treat them the exact same way,” Rahman said. “So that is a good, smart change to the system that focuses resources on the most serious cases.”
Mitchell, the Chicago public defender, said keeping people in jail pretrial had, in his view, contributed to keeping them in the criminal justice system. In the time it took for their cases to come to court, they were isolated from community ties that might keep them from committing more crimes. Cashless bail allows many low-risk defendants to return home while awaiting trial, regardless of their ability to pay.
“We also saw that that incarceration actually made it more likely for that person to return to the criminal legal system later on — so folks were more likely to lose their jobs, they’re more likely to lose their benefits, they’re more likely to lose all the ties that kept them out of the criminal legal system,” he said.
Rahman said she’d seen the same effect across the country in cashless bail jurisdictions, since even 24 hours in jail can cause a person to lose their job or custody of their children and prevent access to needed resources like mental health or substance abuse treatment.
Draper, in Harris County, said the executive order and rhetoric from the Trump administration isn’t clear on what policy they’d prefer to cashless bail. That makes it hard to respond to their demands.
“What is the alternative? Would we move to cash bail? Because it really is very unclear,” Draper said. “Would we move to mandatory detention for people accused? Are we moving away from the presumption of innocence? This really doesn’t answer any of those questions.”