Bail Reform Faces Backlash as Policymakers Move To Require Cash Bond for Pre-Trial Defendants
Critics of cash bail say it creates a two-tiered justice system: Those who can pay maintain their freedom, while those unable to pay remain behind bars.
The long national debate over cash bail reignited in summer 2025 after the White House issued an executive order in August threatening to pull federal funding from jurisdictions that allow cashless bail.
The order channeled criticisms from conservative groups and law enforcement organizations that the bail reforms of the previous decade are allowing repeat offenders to roam free.
"Our great law enforcement officers risk their lives to arrest potentially violent criminals, only to be forced to arrest the same individuals, sometimes for the same crimes, while they await trial on the previous charges," the order stated. "This is a waste of public resources and a threat to public safety."
North Carolina enacted a law in October 2025 that would require cash bail for certain offenses and create a new category of violent crime. Lawmakers were responding to the stabbing of 23-year-old Iryna Zarutska on a commuter train the previous August. Her alleged killer had a lengthy criminal history and a pending misdemeanor charge.
Texas voters approved a constitutional amendment on last November's ballot banning cash bail for certain violent offenses, and New York Republicans are trying to further roll back the state's divisive 2019 bail reforms, which have already been amended three times.
Forgotten in much of the debate is what bail is supposed to be: a surety or bond to guarantee the defendant, who enjoys the presumption of innocence, won't skip town before trial.
In many places, however, it became a lever to keep low-income individuals in jail by setting an amount higher than they could afford. Critics of these cash bail schemes argue they create an illogical, two-tiered justice system: Those who can pay maintain their freedom, even if their release carries the same amount of public risk, while those unable to pay remain behind bars, with all the consequences that entails.
Incarcerated defendants are more easily pressured into plea deals, have a harder time preparing a legal defense, and face a host of collateral consequences.
"People that are unnecessarily incarcerated, even for two days, wind up facing a higher likelihood of justice system involvement in the future because of how destabilizing short periods of incarceration are," says Jeremy Cherson, director of communications for the Bail Project, a national nonprofit that provides bail assistance. "People lose jobs, they lose homes, they lose access to their kids."
The Justice Department under President Barack Obama argued in court filings that jailing poor defendants because they couldn't afford to pay bail was unconstitutional under the 14th Amendment's Equal Protection Clause—not to mention bad public policy.
The Cato Institute filed an amicus brief in a 2016 lawsuit on the same side as the Obama Justice Department, arguing that a constitutional and common law record going back nearly a millennium shows that pretrial liberty must be available and affordable to all, including the poor.
If a person is a flight or public safety risk, judges have other tools to keep them incarcerated. Cash bail has a long history, but the method of bond was merely a convenience. The principle can and should be freedom.
This article originally appeared in print under the headline "Bail Wars Are Back."
