President Trump recently issued an executive order aimed at coercing DC into ending its cashless bail policy, a change that would disproportionately harm Black and brown residents who are both over-policed and less able to afford cash bail due to systemic racism. Under its cashless bail policy, DC prohibits cash bail from being used as a condition for pretrial release from detention because it penalizes residents with low incomes, no matter the ultimate result of a trial. The executive order designates the US Attorney General (USAG) to determine whether DC has changed its policy of prohibiting cash bail as a condition for pretrial release, and if it has not, then the District could face penalties, including loss of federal funds. Returning to a cash bail system will force DC residents who can’t afford to pay for pretrial release into detention centers, which can lead to employment loss and other financial consequences, despite the fact that they have not been convicted of a crime.
Republican Senators Marsha Blackburn (TN) and John Cornyn (TX) also recently introduced legislation called The Ending Cashless Bail in Our Nation’s Capital Act, and Representative Andy Biggs (R-AZ) introduced a bill in the House to prohibit pretrial release without bail. The executive order and proposed legislation are the latest examples of federal lawmakers using fear and false narratives about crime to gain control over local policy decisions, similar to the president’s justification for taking over the Metropolitan Police Department in August.
DC Eliminated Cash Bail to Decrease Unfair Pretrial Detention
DC largely ended the use of cash bail in 1992 because it caused disproportionate and unfair incarceration rates for people with low incomes. As DC Attorney General Brian Schwalb recently stated, “Cash bail creates a two-tiered justice system where poor people stay locked up simply because they cannot afford bail.”
DC’s 1992 Bail Reform Act helped establish the current cashless bail system and made DC a leading example for other jurisdictions of expanding pretrial services as part of bail reform. Based on a judge’s assessment of the risk of an individual not returning to court and risk to public safety, individuals accused of a crime in DC are to be released back into their communities until the date of their trial, rather than based on a person’s ability to pay for bail, as is the case in a cash bail system.
Cash Bail Harms Black and Brown Communities
The reimposition of a cash bail system in DC would disproportionately harm Black and brown residents, as evidence from jurisdictions with cash bail shows. From 1970 to 2015, the number of people detained in pretrial detention nationally increased by 433 percent because of a shift toward setting bail as a condition for release from pretrial detention, according to a 2019 report from the Vera Institute of Justice.
Cash bail harms people with low incomes who are unable to pay for bail, and Black DC residents have lower incomes and higher poverty rates than other races due to historic and systemic racism. In 2024, the median income of Black households in DC was $60,591, just over a third of that of white households. Additionally, 30.5 percent of Black residents fell below the poverty line, compared to 4.6 percent of white residents. Black people already made up 87.8 percent of the DC Department of Corrections population in 2024 because of the over-policing of and higher arrest rates of low-income Black individuals.
Black defendants are also found in the research to be more likely to be charged higher bail rates than their white counterparts. For example, in Philadelphia County, Pennsylvania, from 2016 to 2017, the average amount of bail set for Black individuals was $65,100 compared to $56,400 for white individuals. Black and brown people are also more likely to have bail denied. For example, in Santa Clara County, California, Black and brown people are 25 percent more likely to have bail denied than white people.
In addition to penalizing people with lower income, pretrial detention can cause employment loss. This adds to the financial burdens that Black and brown families face and decreases financial stability when released from pretrial detention. Because pretrial detention stays on a person’s record, it can also result in decreased likelihood of employment as many as three to four years after a bail hearing.
The Financial Burdens of Cash Bail Fall on Black Women
The strain of securing bail for loved ones often falls disproportionately on Black women, many of whom are already struggling financially. From 2019-2023, 22.1 percent of Black women above the age of 18 in DC fell below the poverty level compared to 5.9 percent of white women, according to American Community Survey five-year data. Black women may also be forced into crippling debt to pay for their loved ones’ freedom by using commercial bail contracts offered by corporations as an alternative for those who cannot afford to pay bail. Commercial bail contracts are often predatory, targeting those who are financially vulnerable.
Black women also bear the financial burdens of bail directly. Because of over-policing and systemic racism in the criminal justice system, Black women make up 29 percent of the 231,000 incarcerated women in the US—nearly one quarter of whom are being held in pretrial detention—though they are only 13 percent of the total US female population. Eighty percent of incarcerated women are mothers and most of them are primary caregivers, which means that this disproportionate incarceration has a ripple effect on the children torn away from their mothers.
Cashless Bail is Fairer and Protects Public Safety
Cashless bail systems are fairer and lessen financial harm to detained individuals and their families. Two years after New York’s 2019 Bail Reform Bill eliminated the cash bail requirement for people charged with misdemeanors and non-violent felonies, the average saved per adult or family facing trial was $4,267. The money saved has helped these New Yorkers pay for housing, groceries, and medical expenses. Four years after the passage of the bill, the pretrial population in New York City decreased by 15 percent, the lowest level in decades.
Opponents’ argument that a cashless bail system gives rise to more crime has been disproven by research. A study looked at crimes across 33 cities from 2015 to 2021—22 of which had enacted bail reform and 11 that had not—and found no statistical relationship between crime rates and bail reform.
Both the executive order and proposed Congressional bills to eliminate cashless bail are part of a broader attempt to dramatically erode DC’s autonomy and establish more federal control, especially over DC’s criminal legal system. The House of Representatives recently passed H.R. 5140, which lowers the age at which a minor can be tried as an adult for criminal cases to age 14, and H.R. 5125, which eliminates the Judicial Nomination Commission and allows the President to directly appoint judges to the DC Superior Court.
