When President Donald Trump signed an executive order last month threatening to withhold federal funding from states and localities that have adopted “cashless bail” policies, he escalated a national fight over how courts decide who should remain behind bars before trial.

The move has already rippled into state capitols. In North Carolina, Republican lawmakers are considering legislation this week that would tighten pretrial release rules after a high-profile fatal stabbing on a commuter train last month.

The bill, which was first introduced in March and altered earlier this week with the title “Iryna’s Law,” would require people to post money bail for certain offenses and would restrict judicial discretion for violent and repeat offenders. The bill also would add a new category of violent offenses that require specific pretrial conditions, such as electronic monitoring. It passed the state Senate on Monday.

“When we were looking at drafting this bill, a lot of it was looking at the situation that happened in Charlotte,” said North Carolina state Sen. Danny Britt, a Republican and criminal defense attorney, to WRAL-TV.

In New York, Republican lawmakers are pushing to advance legislation that would further limit pretrial release and allow judges to weigh a defendant’s “dangerousness” in setting conditions. New York ended bail for most misdemeanors and nonviolent felonies in 2019, but has since scaled back the law at least three times to allow judges more discretion.

And in Texas — where legislators passed new bail restrictions earlier this summer — voters in November will consider a constitutional amendment banning bail altogether in certain cases for violent offenses such as murder, aggravated assault and indecency with a child.

Trump signed the cashless bail order three days after Iryna Zarutska, a 23-year-old Ukrainian refugee, was killed in a seemingly random stabbing in Charlotte, North Carolina. The suspect, who has a lengthy criminal record, had been released without bond last winter after being charged with misusing the 911 system.

Trump’s order directs U.S. Attorney General Pam Bondi to identify which jurisdictions have “substantially eliminated cash bail,” though it does not define what that means — leaving its scope and enforcement unclear. Some legal experts say they expect challenges in court, as has happened with previous efforts to tie federal funding to state or local policies.

Trump issued the directive alongside another order aimed at Washington, D.C., where he declared a “crime emergency” and sought to roll back the city’s decades-old bail law. The district did not fully eliminate cash bail when it passed its Bail Reform Act in 1992, but judges are required to consider nonfinancial conditions — such as electronic monitoring, curfews or check-ins — before setting a monetary bond.

Trump’s orders are part of his broader crackdown on crime and public safety, which has also included deploying the National Guard to Memphis, Tennessee; Washington, D.C., and Los Angeles.

Same charge, different outcomes

Cash bail is a guarantee to show up to court: A defendant pays money and is allowed to go home. At the end of their case, they may get the money back. A judge or magistrate may set the amount based on the severity of the charge and whether the defendant is considered a flight or safety risk.

But someone unable to pay the bail, even after being charged with a low-level misdemeanor, may remain in jail for days, weeks or months. Defendants by law are presumed innocent, but stuck behind bars, they can lose jobs or housing and be unable to care for their family.

Dozens of jurisdictions, including some states, have taken steps to change their bail systems, but there is no single definition of what constitutes “bail reform” or how such changes are applied.

Some states, counties and cities have moved toward fully or nearly eliminating, cash bail. Under these “cashless bail” systems, people may be released before trial without paying money unless a judge determines they pose a public safety risk or are unlikely to return to court. These decisions, experts say, are made intentionally, based on the facts of the case — including the charges involved — rather than on a defendant’s ability to pay.

The policies can affect a large share of the people in the justice system. About 5 million felony cases and 13 million misdemeanor cases are resolved in state courts each year, according to the National Center for State Courts. Since misdemeanors make up the bulk of cases, state and local bail policies can shape outcomes for millions of people charged with lower-level offenses.

Some opponents of cashless bail policies argue that lenient policies may result in the release of defendants who could reoffend or fail to appear. Supporters counter that keeping people in jail simply because they cannot afford bail is unfair and disproportionately affects Black, Latino and low-income defendants.

The ongoing debate has fueled misconceptions, partly because some news coverage repeats unproven claims that cashless bail policies cause upticks in crime.

Trump has frequently drawn that connection himself. In a July post on Truth Social, he wrote: “Crime in American Cities started to significantly rise when they went to CASHLESS BAIL. The WORST criminals are flooding our streets and endangering even our great law enforcement officers. It is a complete disaster, and must be ended, IMMEDIATELY!”

Supporters of cash bail often raise concerns that released suspects might commit new, potentially more serious crimes. While that is possible in individual cases, some research suggests that eliminating cash bail does not lead to a widespread increase in crime. Some research also suggests that setting money bail isn’t effective in ensuring court appearances or improving public safety.

How the bail system works

Washington, D.C., the immediate target of Trump’s executive orders, largely eliminated the use of cash bail in 1992. Judges are required to first consider nonfinancial conditions, such as check-ins or curfews, though cash bail may still be used in serious cases.

Several states also have adopted major changes. Alaska, California, Illinois, New Jersey and New York have passed laws scaling back or fully eliminating cash bail, though some of those laws have since been revised. New Mexico voters in 2016 also overwhelmingly approved a constitutional amendment to eliminate cash bail.

In 2023, Illinois became the first state to fully abolish cash bail through the Pretrial Fairness Act, which also guarantees defendants legal representation at pretrial hearings.

“Those early decisions about someone’s liberty are much more deliberative,” said Don Steman, a professor and co-director of the Center for Criminal Justice at Loyola University Chicago. The center’s team has been evaluating the implementation and impact of the Pretrial Fairness Act. “It’s about, ‘Is this person a threat to public safety or a threat to willful flight?’”

In Houston, a 2019 settlement and consent decree resolved a lawsuit challenging Harris County’s misdemeanor bail practices as unconstitutional, requiring the county to release most people charged with misdemeanors on a personal promise to return to court.

In the latest independent monitoring report, from 2024, observers wrote that the changes “have saved Harris County and residents many millions of dollars, improved the lives of tens of thousands of persons,” and resulted in “no increase in new offenses by persons arrested for misdemeanors.”

In August, just a day after Trump issued his executive order, Texas Republican Attorney General Ken Paxton asked a federal court to vacate the consent decree.

He argued that the order conflicts with a Texas law passed in 2021 and another state bail law that took effect this month. Those laws require people charged with violent crimes in Texas to post cash bail in order to be released from jail, and expand the list of offenses for which defendants must post a cash bond, respectively.

Bail policies and crime

Reports of violent crime nationwide have been decreasing since 2022 both in jurisdictions that have adopted cashless bail and in those that have not, though some communities continue to face higher rates of certain offenses, including homicide.

Pretrial crime accounts for only a small share of overall crime. And experts say most crime data is too unreliable to link changes in crime rates to any single policy.

“It’s just so difficult to say this policy equals this result when crime is going up and down so dramatically as it has over the last decade,” said Jeff Clayton, the executive director of the American Bail Coalition, a bail industry lobbying group.

Even so, some research has provided insight.

In Illinois, which eliminated cash bail entirely in 2023, reported crime across the state fell 11% in the first six months after the law took effect compared with the same period a year earlier, according to data compiled by the Loyola University Chicago’s Center for Criminal Justice. Violent crime dropped 7%, while property crime fell 14%, according to the center’s report.

The declines were seen in both rural counties and in Cook County, though not in every part of the state. Researchers cautioned that the drop in crime cannot be directly tied to the law, but noted in the report that the data shows there was no immediate surge in crime after cash bail ended in the state.

A 2024 report by the Brennan Center for Justice, a left-leaning law and policy institute at the New York University School of Law, found “no statistically significant relationship” between bail policies and crime rates. The report, which is not peer-reviewed, analyzed data from 33 U.S. cities between 2015 and 2021, 22 of which had made changes to their bail systems.

Similarly, a 2023 peer-reviewed research paper published in the American Economic Journal found no evidence in a review of cases in Philadelphia that cash bail improves court appearance rates or reduces crime among people released before trial.

The White House pointed to a 2022 report from the district attorney’s office in Yolo County, California, to support Trump’s claims, the Associated Press reported.

The report examined how a temporary “zero bail” system, put in place statewide during the COVID-19 pandemic to reduce crowding in jails, affected recidivism. It found that out of 595 people released between April 2020 and May 2021, about 71% were arrested again, and more than half were rearrested multiple times.

A follow-up review, released in early 2023, compared recidivism over an 18-month period in Yolo County for two groups: 100 people released on bail in 2018-2019 and 100 people released under the zero bail policy in 2020-2021. The tally found higher rearrest rates among the zero-bail group.

Some experts, however, say those district attorney reports have serious limitations. They compared groups of defendants charged with different types of offenses. And the zero bail releases during COVID-19 were emergency measures to ease jail crowding: People were released without conditions and without any risk assessment, unlike under typical cashless bail systems.

What comes next

With his executive orders, Trump has taken the unprecedented step of attempting to condition federal funding on how states and cities handle bail.

Some legal experts say the orders are likely to face challenges in court, though it is not yet clear how or when those challenges will arise. It is also unclear which federal grants could be affected, or how the federal justice department will define cashless bail and determine which jurisdictions are covered.

Some legal experts also say the orders raise two major constitutional issues. First, they conflict with principles of federalism, which give states and local governments broad authority to design their own criminal justice systems, as long as they comply with constitutional requirements. Second, they argue the orders may violate the Tenth Amendment, which says that powers not granted to the federal government are reserved for the states or the people.

Another concern is that the orders may exceed the president’s authority by encroaching on Congress’s spending power. Only Congress can decide how federal money is spent and attach conditions to that funding, and there is no law currently that allows states to lose federal funds because of their bail policies.

“The president doesn’t have the authority to say, ‘I’m going to impose that condition because I think that’s what the law should be,’” said David Gans, the director of the human rights, civil rights and citizenship program at the Constitutional Accountability Center. “The president is kind of trying to take those decisions away from states.”

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Stateline reporter Amanda Hernández can be reached at ahernandez@stateline.org.

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