Ending Cashless Bail Criticized as Guilty Before Proven Innocent

In 1989, New York City real estate mogul Donald Trump called for the return of the death penalty after five Black and Hispanic men were charged in the brutal attack and rape of a jogger in Central Park.

As President Donald Trump, he issued an executive order Monday to withhold federal funding from cities and states that give judges the option of releasing arrested individuals from custody who are charged with crimes, without posting bail.

Defense attorneys and criminal justice advocates see both declarations as labeling poor defendants guilty until proven otherwise: that police and prosecutors are infallible, and if they say someone committed a crime, then that’s enough for a conviction.

“But that is not the law of this country,” argued Vida Johnson, Georgetown University professor of law and director of the school’s criminal justice clinic. “The law states that everyone is innocent until proven guilty. And a person’s bank account should not determine whether they are permitted to be released prior to trial.”

Trump’s efforts come as he has spent recent weeks exerting control of Washington in his effort to reform crime, including sending National Guard troops to patrol specific neighborhoods, increasing federal law enforcement and invoking a law that allows him to seize control of the city’s police department.

As part of his latest order, Trump ordered Attorney General Pam Bondi to submit a list of jurisdictions that have eliminated cash bail as a potential condition of pretrial release within 30 days.

“When these individuals are released without bail under city or state policies, they are permitted — even encouraged — to further endanger law-abiding, hard-working Americans because they know our laws will not be enforced,” Trump said.

The nation’s capital has used cashless bond since 1992 and has become a model for courts, including in Pennsylvania, New Jersey, Texas, and Illinois.

Judges in the District said the examination of details of the crime and past criminal activity has proven successful in keeping dangerous offenders from re-offending as they await trial. According to fiscal year 2025 data from the District’s Pre-Trial Services Agency, which monitors individuals on pre-trial release status, 90% of individuals on pre-trial release remained arrest-free, while 89% of those awaiting trial made all their scheduled court appearances.

“If someone is a danger to the community, they won’t be released. We use this as a barometer instead of the amount of money they have in their bank accounts to meet bail,” said a DC judge who was not authorized to speak publicly. “What is more concerning is that someone has the means to make bail and re-offends while awaiting trial. By reviewing their past criminal history, having financial means to secure release makes the community safer.”

Judges don’t automatically release defendants charged in crimes. Instead, they weigh numerous factors, including the violent nature of the crime, whether the defendant has shown up for previous court hearings while on release, and the defendant’s criminal history, as well as mental health and drug use. Focusing on the defendant’s history allows judges to determine if the defendant will re-offend while on home detention or be required to use GPS ankle monitors as they await trial.

The system is not without challenges, especially when it comes to juveniles.

Last October, Bryan Smith, a popular 39-year-old disc jockey and hair stylist, was fatally beaten during a robbery in Northwest Washington. At the time of his arrest in the killing, the then 16-year-old had five outstanding charges for robbery and assault, as well as a destruction of property conviction from when he was 12.

The teen pleaded guilty in Smith’s slaying and was sentenced to secure detention with the city’s Youth Department until age 21, the District’s maximum sentence. At his sentencing in June, Smith’s family repeatedly asked why the teen was not in custody prior to the murder. An official with the city’s Pre-Trial Services Agency said Tuesday they didn’t have data on juveniles.

Criminal justice experts say locking up individuals based on allegations can end up harming communities. Individuals who may later be found not guilty have by then lost their jobs and housing while jailed, possibly leading some to return to illegal activity for financial reasons. Putting indigent families in the position of choosing among feeding children, paying rent, purchasing medication or paying bail also can lead to additional crime, said Alicia Yass, supervising policy counsel for the American Civil Liberties Union in the District.

Not jailing defendants until after conviction also allows judges and prosecutors juggling heavy caseloads to spend more time on serious cases where the defendant does need to be jailed before trial, while others can be home or on GPS monitoring.

Also, defense attorneys argue, if judges begin ordering all defendants jailed as they await trial, local jails will become so overcrowded that they will need to transfer inmates miles away pending trial.

“The District has been has been a model for the nation in ensuring that people are treated as innocent before being found guilty,” Yass said. “This move does have the appearance of guilty before trial and that is not how this nation’s legal system is supposed to work.”

Johnson said Trump argued that major criminal cases in the District should be moved to federal court. But judges in that courthouse, she said, follow the same cashless bond release system as the judges across the street in DC Superior Court.

In the Central Park Five case, the men whose arrest prompted Trump to demand the restoration of the death penalty were later exonerated after another man was linked to the attack. He has continued to insist the men were guilty, even as the five pursue a defamation lawsuit against the president.

“His position when someone is arrested is grounded in the assumption that they are automatically guilty,” Johnson said. “But the Constitution and the legal system in this country says that is not the case.”