Bail Reform Works. Rolling It Back Would Be a Disaster.

By: Scott Levy and Alice Fontier

In late August, President Trump issued an executive order purporting to “take steps to end cashless bail to protect Americans.” The order presents a skewed and misleading view of pretrial justice, one that shows little regard for due process—the bedrock principle of “innocent until proven guilty”— and disregards an overwhelming body of evidence demonstrating that bail reform has been a success. Proposed legislation in Congress would go even further, threatening to dismantle Washington, DC’s nationally recognized pretrial system, reinstituting a cash bail system that was eliminated in the 1990s and mandating pretrial detention in certain cases, and withhold federal funding from states that “limit cash bail.” Were they to become law, these measures would not only reverse decades of progress, but also re-entrench failed, inequitable systems of pretrial detention. The consequences would be catastrophic—not only for the individuals directly affected, but for the legitimacy and effectiveness of the criminal legal system as a whole.

Why Bail Reform Was Necessary

While DC changed its laws in 1992, the bail reform movement gained traction nationwide in the mid-2010s, driven by a recognition that the country’s pretrial detention systems—based primarily on cash bail—were costly, cruel, unfair, and ineffective. Jails across the country were filled with people who had not been convicted of any crime, but were incarcerated simply because they couldn’t afford the price of their freedom. 

Indeed, prior to reform, bail in New York and many other jurisdictions functioned less as a mechanism to ensure appearance in court and more as a coercive, punitive tool. Judges frequently set bail in amounts far beyond the reach of low-income people charged with crimes, frequently for low-level offenses. The predictable result was that countless individuals—presumed innocent under the Constitution—were detained pretrial simply because of their inability to pay. At arraignment, clients often faced an impossible choice: plead guilty and accept a criminal record or risk months of incarceration at facilities like Rikers Island while awaiting trial.

The reliance on monetary bail produced systemic harms at every stage of the process. Research and practice have consistently shown that cash bail practices:

• Prolong pretrial detention, even for low-level offenses;
• Pressure people charged with crimes into coerced guilty pleas;
• Increase the likelihood of conviction;
• Result in more serious conviction charges and harsher sentences;
• Extract scarce resources from low-income communities; and
• Deepen racial disparities in criminal outcomes.

Moreover, a growing body of research showed that monetary bail was not necessary to ensure people’s return to court. The reform efforts that took root in the 2010s were grounded in two fundamental principles:

• The presumption of innocence prohibits punishment prior to adjudication; and
• Pretrial liberty should not be determined by a person’s financial means.

The recent proposals to mandate detention and eliminate judicial discretion would directly undermine these principles. They raise serious constitutional concerns, lead to a costly explosion in pretrial detention (taking resources away from other priorities), and would exacerbate the racial disparities that already pervade the system. They would also fail to advance public safety.

The Evidence: Bail Reform Improves Justice Without Compromising Safety

Opponents of bail reform often claim that it endangers public safety. These claims are not supported by evidence. On the contrary, rigorous empirical studies across multiple jurisdictions confirm that bail reform reduces unnecessary detention while maintaining, and in some cases improving, public safety outcomes. A look at two jurisdictions that have reduced the reliance on cash bail—New York and Washington D.C.—makes it clear.

New York

Since the passage of bail reform in 2019, tens of thousands of individuals have avoided the destabilizing effects of pretrial incarceration in New York. They have been able to maintain employment, care for their families, and access services. At least five independent studies of New York’s reforms have reached the same conclusion: rearrest rates remain largely unchanged, including for serious offenses. The Data Collaborative for Justice further found that eliminating bail for most misdemeanors and non-violent felonies not only reduced detention, but also reduced recidivism.

Washington, DC

Washington, DC has long operated a pretrial system that minimizes reliance on monetary bail, and the data from the first three quarters of FY25 continue to demonstrate its success. According to the Pretrial Services Agency:

• Nearly 90% of people charged with crimes in DC Superior Court were released pretrial without bail;
• Of those, 90% were not rearrested;
• Among the small percentage who were rearrested, 81% faced only misdemeanor charges, and only 1.2% were rearrested for a violent offense; and
• 89% of released individuals made all scheduled court appearances.

These outcomes make clear that jurisdictions can preserve public safety while ensuring pretrial liberty without reliance on money bail.

Politics Versus Policy

Despite this evidence, anti-reform rhetoric continues to dominate political discourse. Bail reform has become a rhetorical weapon wielded in broader “tough on crime” campaigns, with policymakers invoking it as a scare tactic to justify expansion of police powers and budgets and to undo hard-won and successful reforms. These arguments are political, not grounded in empirical reality. And a study by FWD.us shows how the media reinforces politically motivated opposition to bail reform, finding that in New York, the negative “shift in public sentiment is much more likely to have been caused by the torrent of negative articles about the reforms” than by the empirical results of the policy.

The evidence is unambiguous: bail reform both increases fairness and advances public safety. Attempts to reverse these reforms are not only unnecessary, but actively harmful. They threaten constitutional protections, exacerbate racial disparities, and destabilize communities, all while failing to deliver any public safety benefit. They also distract us from the investments that actually makes communities safer and our justice system fairer: affordable housing, accessible mental health care, comprehensive healthcare, youth employment programs, and other community-based supports. By diverting attention and resources away from these proven strategies, efforts to roll back bail reform actively undermine public safety.

Policymakers should resist calls to return to failed systems of monetary bail and mandatory detention. Instead, they should invest in the social and economic infrastructure that produces genuine community safety. Real safety does not come from pretrial incarceration—it comes from ensuring that all people have the resources and opportunities to thrive.