The US Department of Justice has been tasked with developing a list of local jurisdictions that have “substantially eliminated” cash bail for certain offenses and withholding federal funds accordingly. Parameters, compliance standards, and consequences are still unclear.
According to a recent executive order, the federal administration intends to take steps to end the practice of cashless bail because they claim it is a risk to public safety. The directives from the order were to identify state and local jurisdictions who have substantially eliminated cash bail for particular crimes and identify potential funding consequences. The noted eligible offenses were crimes that pose a clear threat to public safety and order, including offenses involving violent, sexual, or indecent acts, or burglary, looting, or vandalism. Additionally, it authorized the Attorney General to update the list as necessary.
After identifying the jurisdictions, heads of executive departments and agencies, in coordination with the US Office of Management and Budget (OMB), are directed to identify federal funds, grants, or contracts provided to those named jurisdictions, and to suspend or terminate them where lawful. It is not yet clear what the parameters will be for qualifying as “substantially eliminating” cash bail or if there will be avenues to gain compliance prior to suffering funding loses. Legal challenges are also likely as this new policy is implemented.
The bail framework in Maryland incorporates many of the principles behind cashless bail but with an emphasis on minimal conditions, non-financial release where possible, and avoiding detention for inability to pay and rather using supervision, check-ins, electronic monitoring, and the like. This is demonstrated by the extensive pre-trial release programs that have been implemented by county detention centers statewide. With these components in place though Maryland has not eliminated monetary bail. Maryland’s system in this way is more incremental with monetary conditions remaining part of the toolkit, especially for cases deemed higher risk.
The goal of cashless bail is to reduce the inequity in traditional cash-based bail systems, in which poorer defendants may remain jailed simply because they cannot afford bail, while wealthier ones go free. While opponents argue that cashless bail could lead to more pretrial crime or failure to appear, proponents and some research suggest those risks are not borne out in aggregate. A recent article in Stateline – the editorial arm of The Pew Charitable Trusts- cited studies showing that eliminating cash bail in jurisdictions like Illinois has not led to noticeable crime spikes and may even correlate with reductions in some crime categories. The article also noted that there is no single uniform approach to cashless bail. States adopt different thresholds and rules about when judges may impose monetary conditions versus non-financial conditions. Some reforms are more cautious, retaining money bail for more serious offenses, while others (like Illinois) have more sweeping elimination.
