The President’s Plan to Lock Everyone Up

Normally, our newsletters explore how states function as laboratories for authoritarian forms of government and the federal government’s utilization of those ideas in its own power grab. Today, we take a break to focus on the President’s totally fact-free attack on pretrial justice, which, if successful, will make communities more dangerous, harm the voices of victims, and, like everything with this administration, disproportionately punish both poor and Black communities.

We want to be clear: the President has one goal in mind with his new executive orders, and it is the same goal he had when he sent masked agents into D.C. He wants to make people afraid, believe that Black-led cities are war zones, and that he can and should take power by brute force. But the biggest threat to Americans’ safety right now is the President, who has cut funding for nearly every single program that prevents crime and keeps people healthy and safe. When historians write books, he will be the President of chaos, fear, and danger.

We focus today on what the EOs say, what money bail is, what actually works to protect the public, and why we should stop pretending that Trump’s actions are aimed at keeping people safe.

And on Thursday at 6 pm Eastern, we will host a briefing with Journalist Radley Balko, Illinois Senator Robert Peters, and Bethany Young of the DC Justice Lab, discussing the federal takeovers of cities. RSVP here.

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Yesterday, Donald Trump issued unprecedented Executive Orders attacking pretrial justice.

• The first EO instructs the Attorney General to identify jurisdictions that have, “in the Attorney General’s opinion,” substantially eliminated cash bail for crimes deemed threats to public safety within 30 days. (To be clear, those places still allow for detention for those cases.) The EO gives only vague descriptions of these types of crimes. The EO directs the administration to potentially suspend or terminate federal funding to those jurisdictions if they do not reinstate cash bail requirements.
• A second EO targets D.C.’s pretrial policies specifically, claiming without evidence they contribute to crime. The EO orders federal law enforcement to hold people arrested in D.C. in federal custody “to the fullest extent permissible under applicable law” and to pursue federal charges and detention whenever possible. It also orders officials to pressure the district to change its bail policies, which do not rely on money bail.
• These orders target places that determine whether a person should be held pretrial based on risk and an assessment of safety—not how much money they have. That includes Washington, D.C., which has not used money bail since 1992 (but makes every serious offense eligible for pretrial detention, a fact that doesn’t fit the President’s narrative). It also includes places like Illinois and New Jersey.
• The details of how these orders will actually operate are unclear. The President has no control over what the State of Illinois does, and his attempt to withhold money from states that want to make their system more fair and more just will surely be challenged in court. And he cannot unilaterally undo the District of Columbia’s criminal code or other state Court rulings. But they will have an incredible chilling effect, will waste enormous resources, throw systems into utter chaos, and, if eventually enacted, likely overflow jails, overwhelm court dockets (more on that later), and make communities less safe.

The President’s policy will not increase public safety.

• As most readers of this newsletter likely know, in places that rely on a money bail system, a judge simply sets a price on a person’s freedom pretrial. If a person can afford to pay it, they can go home, regardless of the seriousness of the crime. It is not uncommon to see someone charged with a very serious case out on money bail. It is also not uncommon to see someone accused of stealing diapers or baby formula stuck in jail because they were also unable to afford their bail.
• That disparate and nonsensical result happens because the money bail system is untethered from public safety. In most money bail systems, judges spend minutes on each case, set a fixed amount usually given to every person charged with the same crime, and move on. The judge doesn’t consider whether the person will pose a danger, or what a victim might want—including detention—and they don’t consider the likelihood that a person will return to court. They just set a price, and if the person can pay it, they get out of jail.
• The money bail system creates two tiers of justice—one for wealthy people who can go home, and one for poor people who stay locked up in jail. It also punishes people of color more severely, who receive higher bail amounts than white people in similar cases.

Over the past ten years, states like Illinois and New Jersey have successfully replaced money bail systems with systems that center on safety, victims’ wishes, and equity.

• In 2023, Illinois passed the Pretrial Fairness Act, which ended money bail. It replaced it with a system where judges are empowered to jail people who pose a threat to another person or the community, or who are likely to flee prosecution. And judges are empowered to release those who do not meet those standards. In the two years since its passage, the state has seen a major drop in violent crime and no reduction in court appearances. At the same time, jail populations in Cook County and other urban counties decreased by 14%, and 25% in rural, conservative counties.
• Survivors of domestic and sexual violence support the end of money bail in Illinois. Under the cash bail system, an alleged assailant could simply buy their way out of jail. Under the Pretrial Fairness Act, it doesn’t matter how wealthy someone is. If they are dangerous, they will be detained pretrial, without exceptions for the rich and powerful.  The reforms also prioritize public safety and survivor needs by ensuring survivors are informed and have the opportunities to ask for special conditions, such as protective orders at every step of the pretrial process.
• In New Jersey, a constitutional amendment passed in 2014 enabled the state to transform its pretrial justice system. Before the amendment, only people charged with capital offenses could be held without bail; after, courts were able to expand pretrial release conditions and order pretrial detention when warranted by a risk-based analysis.
• New Jersey saw a 20% drop in pretrial jail populations between 2015 and 2022, while crime decreased—including violent crime, which fell faster than the national average.
• Trump’s claims, therefore–that cashless bail allows the release of “individuals whose pending criminal charges or criminal history demonstrate a clear ongoing risk to society”–are therefore totally fact-free. These reform systems center safety.  Indeed, in Washington, D.C., nearly every serious offense is eligible for pretrial detention, and judges are required to assess and make detention decisions based on risk.
• It is no surprise that the studies on places that have ended or reduced their reliance on money have shown “no statistically significant relationship between bail reforms and trends in crime generally or violent crime specifically.”

If allowed to stand, Trump’s EOs will be a disaster for American safety and for the legal system.

• The Trump EOs, if enacted, are designed to allow prosecutors to lock up anyone who is arrested and charged with a crime pending trial (unless, of course, they are an ally of the Administration). The strength of the case and the danger of the person will be irrelevant, and we are already seeing signs that they are bringing charges they can’t prove. In one case, prosecutors failed to obtain a grand jury indictment on three separate tries.
• We may never know the extent of their harm, because DC is not releasing transparent data on who law enforcement is arresting right now or on case outcomes, although most reporting shows they are largely arresting people for minor offenses.
• These EOs violate the presumption of innocence and the Supreme Court’s (at least for now) still-existing precedent that pretrial detention should be a “carefully limited exception” to the norm of pretrial liberty, a doctrine established nearly forty years ago.
• The EOs could also bring the legal system to a standstill. A blanket detention policy would further strain often already overcrowded and understaffed jails while also creating logistical nightmares for courthouse officials who have to coordinate court appearances. Cases involving detained parties often must move faster—meaning more pressure and Herculean deadlines for lawyers, police officers, and judges. The likely net result is less justice for all: costly mistakes, cut corners, and massive backlogs.    

We need to be clear-eyed: these executive orders are power grabs designed to keep people afraid, destroy hard-fought policy wins, and maximize the number of people this administration can lock up for Trump’s gain. The reality is that far from being the protector of people, he is the architect of future crime, demolishing programs that actually reduce violence. We must not forget that he cut over $800 million in DOJ grants, including $245 million that went specifically to violence prevention programming. Or that he took a hatchet job to substance use and mental health treatment grants to the tune of over 11 billion dollars.  

He wants people to believe he is preventing crime, but this man, who posted his own bail last year, simply wants to make sure that he can arrest anyone he wants, without reasonable suspicion or probable cause, and keep them locked up in jail. That will include people accused but not convicted of committing the smallest of crimes, no matter the strength of the evidence, and also those who simply oppose him. We should all be terrified.