Trump made a fact-free case against cashless bail

By Robert Greene, CalMatters

This commentary was originally published by CalMatters. Sign up for their newsletters.

Of all our presidents, is Donald Trump the foremost expert on bail? If it’s a matter of personal experience, then yes.

Two years ago he paid $20,000 to a bail bond agent in Atlanta to avoid being locked up in Fulton County Jail pending trial on racketeering charges and more than a dozen other counts in connection with his alleged attempt to overturn the 2020 presidential election results in Georgia. 

No other president has had such an intimate encounter with the pretrial justice system.

But he still doesn’t know what he’s talking about.

That became clear last month when he issued two executive orders purporting to abolish what he calls “cashless bail.” One order applies to the District of Columbia, which is now being patrolled by National Guard troops under Trump’s direction.

The other bail decree supposedly covers every other U.S. jurisdiction — thousands of them — where people are accused of crimes and arrested.

We’ve now passed the 30-day period that Trump gave his team to submit a list of cities, counties and states that have “substantially eliminated cash bail as a potential condition of pretrial release from custody” for several broad categories of crime. 

Will California be on the list? Maybe, maybe not. Could Trump compel California and its 58 superior courts to change their pretrial release protocols? The answer ought to be no, but so many people and institutions — law firms, universities, Congress, television networks — have shamefully and unnecessarily bent to Trump’s will that it’s hard to say. 

Like every state, California has its own constitution, its own courts and its own rules on money bail. Those rules are complex. They’re different in Los Angeles, San Francisco and Sacramento from the rest of the state. And the rules are different for the two times bail can be set: the two or three days between a suspect’s arrest and their first court appearance, and the period leading up to trial, which could be weeks, months or even years later.

California’s practices also have been reshaped by recent voter and court action and may be further affected by a state Supreme Court ruling expected any day now.

Trump has no authority to butt into any of this. But he’s butting in anyway, by threatening to withhold federal funding unless states and local jurisdictions that have taken cash bail off the table reinstate it. 

Trump’s basic premise, although demonstrably false, appears to be that money and the fear of losing it will make potentially dangerous people alter their behavior. He may believe, as do many in law enforcement, that criminal defendants will show up for all their court dates and avoid misconduct to protect their pocketbooks. Defendants with no money at stake presumably would have nothing to lose and therefore put the rest of us at risk because, as Trump said, “they know our laws will not be enforced.” 

For proof, he cited a report prepared by the Yolo County District Attorney’s Office and promoted by District Attorney Jeff Reisig. The report looked at 100 people let out of jail without paying bail during the COVID emergency and compared their subsequent arrest records with 100 people who were released after paying bail in prior years.

A succession of criminologists has refuted the Yolo report in court testimony, declarations and articles, criticizing its methodology and offering numerous peer-reviewed studies finding no evidence that putting up money as a condition of release has any effect on pretrial behavior.

But proponents of money bail have made sure that it’s the faulty Yolo report, and not the peer-reviewed data and studies, that makes it to the desks of news editors. And, apparently, the White House. 

How bail actually works

Rooted in medieval England, money bail historically has served a single purpose — to guarantee that a defendant appears in court for trial and all the required pretrial hearings. U.S. courts now also impose bail in an attempt to protect witnesses and the community from risky defendants.

Most people released on bail, like Trump in 2023, never actually pay bail. They pay a fee, typically 10%, to a bail bond agent, who pledges the full amount to the court. If Trump’s racketeering trial were to go forward, there would be nothing he could do — no number of court appearances, no agreements to stop saying nasty things on social media or anything else — that would get him his $20,000 fee back. As with any other defendant who paid a private bond agent, there was no monetary incentive that would have affected his behavior before trial.

If instead of hiring a bond agent, Trump had pledged or paid the full $200,000 bail amount to the court, he’d get it all back after showing up for trial. In the relatively rare case of a defendant posting the full bail amount, that theoretically is a monetary incentive to not flee.

In fact, most people who don’t show up for trial aren’t desperate crooks on the lam; they’re defendants living on the economic or social margins who were distracted by medical appointments or childcare or mental health crises or, perhaps, they just need the kind of reminder that dentists send their patients. Or a ride to the courthouse.

Santa Clara County pioneered a pretrial services program that helps defendants get to court. Under the 2021 California budget bill, the Judicial Council offers funds to other counties to do similar work. Los Angeles’ program was developed alongside an entire complex of programs to promote “care first; jail last.”

Does a defendant who paid the full bail or a fee to a bail bond agent have a monetary incentive not to be arrested for another crime? The crux of the Trump bail order is that the presumed answer is “yes” — but the actual answer is “no.”

Unlike failure to appear, being arrested does not result in a defendant losing bail money. How could it? An arrest while awaiting trial is not proof of misbehavior. Until conviction, it is only an accusation by the government. In the United States, a defendant cannot be penalized, thank goodness, based merely on an accusation.

It is understandable, although ironic, that the same defendant can indeed be returned to jail upon that second arrest because he or she is no longer considered a low risk to public safety. The law does not consider jail before trial to be a punishment, but merely a safeguard.

A person who posts money bail and is free before trial is in exactly the same position as a person who is free without posting bail. Neither has more or less incentive than the other to behave or misbehave. Paying bail and then losing it doesn’t protect anyone. 

As is the case with many proponents of money bail, Trump’s purpose may be only ostensibly to alter the defendant’s behavior while awaiting trial. The actual purpose is more likely to keep people locked up, whether or not they pose any risk of fleeing or causing public harm.

California eliminated money bail in 2018, but the legislation was overturned two years later in a referendum funded by the bail bond industry and backed, as is often forgotten, by reformers who feared that the state would end up like the federal justice system, where people are locked up who could have been safely released before trial.

In the landmark 2021 case of In re Humphrey, the California Supreme Court ruled that defendants could not be held before trial solely because they could not afford bail. The court has yet to consider how to reconcile the state constitutional right to bail with a provision of Marsy’s Law, a 2008 victims rights ballot measure that requires judges to primarily consider public safety when settling bail. A ruling on the follow-up case, In re Kowalczyk, is expected soon.

California’s differing, two-phase approach

In the meantime, lawsuits in three counties have sharply reduced the use of cash bail after arrest but before arraignment (the defendant’s first appearance in court).

Observers in many other states are puzzled by California’s two-phase bail system. In Philadelphia, for example, almost immediately after arrest a defendant appears before a judge — often by video — to enter a plea and make a case for release without bail, or at least a low bail amount. Except for the video appearance, this is how it works in most TV police procedurals like “Law and Order.”

But it’s not how it works in California, where defendants’ rights to a defense lawyer, an impartial judge and pretrial release are merely theoretical for at least the first 48 hours. During that time, police check the bail schedule, refer defendants to a list of bail bond agents and, if they can’t pay right away, send them to jail. They don’t see a judge, can’t argue for release and usually don’t even meet their public defender until two or three days later, when they have the first chance to enter their plea. At that point, the judge may set bail all over again.

After a lawsuit challenged the process in Los Angeles County, the L.A. Superior Court adopted a new protocol for the pre-arraignment period. Defendants still don’t see judges during that time. But judges, working from home, review the circumstances of the arrest and any criminal records and decide whether to hold or release the defendants without bail. People accused of violent or serious crimes are not eligible for the program yet still can go free immediately if they pay bail.

Lawsuits in San Francisco and Sacramento have led to similar modest changes in the pre-arraignment phase. It’s not clear whether those jurisdictions will end up on Trump’s list of punishable “cashless bail” jurisdictions.

What is Trump playing at?

Except in Illinois, which completely swept away cash bail and now releases or retains people based on their risk of fleeing or of being a threat to public safety, and a few other states like New Jersey and New York, where cash bail remains the exception — Americans continue to enjoy many of their constitutional rights only in proportion to how much money they have.

Defendants with a lot of money can post a lot of cash but get it all back at the end of trial. Those with just a little cash must pay a nonrefundable bail bond agent fee, and those with no money go to jail — and lose their jobs for failure to come to work, or their apartments for being unable to pay their rent, or their children for not being on hand to care for them. Many plead guilty rather than fight the charges, just to go home. Now with criminal convictions, their prospects in life are greatly diminished.

Why does Trump want this?

It may be because, like most Americans, he is clueless about how bail works. Or it could be because, like many police and prosecutors, he believes the justice system taught in school is just a fairy tale and the real system is meant to impose punishment from the moment of arrest,  except for people with money.

Or he could be planning to lock up people just for protesting. It is noteworthy that his executive order listing crimes that should require money bail includes, along with violent and sexual crimes, “vandalism.”

Or it could be that he just considers bail reform to be “woke,” and therefore something to wreck.

None of that is especially surprising.

What is surprising is that so many liberal Americans buy the groundless argument that people who leave jail without paying a bail bond agent are somehow more dangerous than their counterparts who pay. And that their constitutional rights aren’t worth fighting for.

This article was originally published on CalMatters and was republished under the Creative Commons Attribution-NonCommercial-NoDerivatives license.