President Trump has expressed a desire for individuals to remain in jail, particularly if they come from low-income backgrounds. He seems to be suggesting that even if it takes a long time—be it months or even years—for a case to reach trial, those arrested should still be presumed innocent.
However, his approach has not reflected this idea; it appears to be a consequence of his stance against cashless bail.
Recently, Trump unveiled a Presidential Order that threatens cities and states implementing cashless bail systems, which he believes compromises public safety. He described cashless bail as a type of “government-backed crime spree.”
His views don’t quite match reality; he has commented on cases where “someone kills someone and they say… it’s fine, no cash required. I’ll be back in a few months for trial.” This implies that defendants won’t return—a viewpoint I think lacks nuance.
In places where cashless bail is in effect—often better termed “personal recognizance”—the rates of reoffending and nonappearance are similar to those areas that still require cash bail.
For instance, Illinois became the first state to completely eliminate cash bail in September 2023. Following the SAFE-T Act, most accused individuals can be released without paying bail, albeit with some having conditions like regular check-ins or monitoring devices.
It’s key to note, though, that judges retain the authority to order detention if they believe the defendant poses a serious threat to others or is a flight risk.
Since the abolishment of cash bail in Illinois, failure-to-appear rates have decreased from 17% to 15%, and there’s been no increase in crime rates or a rise in criminal activity in Chicago. Interestingly, the switch to personal recognizance has led to a reduction in the time defendants spend awaiting trial.
In Washington, a non-financial release system has been functioning since 1992, resulting in about 11% of defendants missing their court dates—on par with national averages. Meanwhile, federal courts still impose cash bail in certain cases.
As with many of Trump’s initiatives, his push to expand executive authority raises significant legal and constitutional questions. His order directs federal agencies to “identify federal funds related to cashless bail jurisdictions that may be suspended or terminated.”
This directive extends beyond just pretrial programs and even into broader criminal justice funding, meaning the potential for extensive financial repercussions looms.
If he follows through on this, it could clash with principles laid out in Article 1 of the Constitution.
Legal expert Ilya Somin notes that only Congress can impose conditions on federal grants, suggesting that Trump’s actions could be unconstitutional. Additionally, under the 10th Amendment, even Congress cannot dictate how states manage their criminal justice systems.
In terms of both facts and law, Trump appears to be misinformed. For now, however, the shift towards easier pretrial release reflects some valid reasons behind abolishing cash bail.
The financial burden that bail imposes often keeps low-income defendants incarcerated simply because they can’t afford to pay. I recognized this early in my legal career as a defense attorney in Chicago; the consequences can be dire.
I distinctly remember a case from 1976 involving a young woman arrested for stabbing her boyfriend. By the time I arrived at court, her bail was set so high that she couldn’t meet it.
During our conversation in custody, she was desperate to return home to her children, who were being taken care of by neighbors. She explained that her boyfriend had previously abused her, and in a moment of fear and desperation, she lashed out.
At the time, the “battered woman syndrome” was not legally recognized, even though her actions were a valid claim of self-defense against her larger, violent partner.
I tried to persuade the prosecutor to dismiss the charges or at least agree to reduced bail. He listened but ultimately refused, considering the severity of the injuries to the victim.
Instead, he offered a plea deal: if she pleaded guilty that day, she would receive probation and be allowed to return home. I found this approach problematic and unjust, but I was obliged to present it to her.
All she wanted to know was, “If I plead guilty, can I go home?”
When I answered affirmatively, she said, “I don’t care. I just need to go home.”
She faced an agonizing choice between returning to her children or fighting for her defense, which she could not afford. Though I had my reservations, I had to respect her decision.
With the current cashless system, individuals like her are recognized, released, and able to care for their families while preparing their defense. It seems humane, yet it’s clear this is not what Trump envisions.
Stephen Lubett is a Professor Emeritus at Williams Memorial Professor at the Pritzker School of Law in the Northwest.
