Aug. 25 -- President Donald Trump took aim at pretrial detention programs that don't utilize cash bail with executive orders he signed Monday morning.
Trump on Monday signed an executive order that targets Washington, D.C., specifically, asking agency heads to "identify appropriate actions to press" D.C. to change its cashless bail policies if the city keeps them in place. The nation's capital eliminated cash bail in 1992. Given Congress's constitutional control over Washington, D.C., making changes for the district is much easier for the federal government than in any state.
The president signed a second executive order that directs Attorney General Pam Bondi to create a list of states and local jurisdictions that have substantially eliminated cash bail as a condition of pretrial release for crimes that pose a "clear threat to public safety and order."
It also asks department and agency heads to identify federal funds, including grants and contracts, to the jurisdictions on that list that could be withheld. This order could affect New Mexico, where voters overhauled the bail system almost nine years ago.
"No cash. Come back in a couple of months, we'll give you a trial. You never see the person again," Trump said, moments before signing the order.
Critics of the cashless route have argued that bail is a time-honored way to ensure defendants released from jail show up for court proceedings. They warn that violent criminals will be released pending trial, giving them license to commit other crimes. The White House pointed to a 2022 report from the district attorney's office in Yolo County, California, that looked at how a temporary cashless bail system implemented across the state to prevent COVID-19 outbreaks in courts and jails impacted recidivism.
Proponents of eliminating cash bail describe it as a penalty on poverty, suggesting that the wealthy can pay their way out of jail to await trial while those with fewer financial resources have to sit it out behind bars.
Other studies show the jury is still out on the effect of cashless bail on crime. Loyola University of Chicago's Center for Criminal Justice published a 2024 report on Illinois' new cashless bail policy, one year after it went into effect. It acknowledges that there is not yet enough data to know what impact the law has had on crime, but that crime in Illinois did not increase after its implementation. Violent and property crime declined in some counties.
New Mexican response
Not unsurprisingly, New Mexico's leaders largely reacted along party lines.
"Effective public safety requires evidence-based solutions tailored to local needs, not federal mandates that undermine state sovereignty and threaten to politicize our judicial systems," Gov. Michelle Lujan Grisham's spokesman Michael Coleman said in response to Monday's orders.
Lujan Grisham has proposed changes to New Mexico's system like pretrial detention and no-bond holds for repeat felony offenders "because the system went from discriminating against poor defendants to one that now requires better protection for victims of repeat crime," Coleman said.
New Mexico Senate Majority Leader Peter Wirth, D-Santa Fe, who was one of the architects of the 2016 measure approved by voters, said the old system was unconstitutional.
"The bail reforms voters overwhelmingly approved in 2016 give judges the ability to hold dangerous defendants in jail before trial," Wirth said in a statement. "Any punitive action from the federal level is a clear overreach and a misguided attempt to undermine New Mexico's Constitution."
And New Mexico Chief Public Defender Ben Baur said Monday that many defendants spent months in jail under the state's old system because they couldn't come up with $50 to post bail.
"Cashless bail is a term that does not apply to New Mexico," Baur said in a statement. "What we have is bail reform."
The Republican Party of New Mexico lauded the executive order.
"This order takes decisive action to restore accountability, protect law-abiding citizens, and stop the revolving door of crime that undermines both safety and trust in the justice system," Republican Party of New Mexico Chair Amy Barela said in a statement.
New Mexico's bail system has been a politically contentious issue for the last decade -- if not longer.
State voters overwhelmingly approved the 2016 constitutional amendment that overhauled New Mexico's cash bond system and replaced it with one that allows judges to keep defendants in custody if prosecutors can show they pose a danger to the public.
But the implementation of the new system has drawn criticism, along with repeated attempts to make it easier for judges to hold defendants behind bars until trial.
Under the current system, New Mexico judges can still impose cash bail in certain cases if a defendant is deemed to be a flight risk. But it's more common for judges, who use a tool to determine whether a defendant should be released pending trial, to order certain conditions of release like ankle monitoring or drug testing if a defendant is released.
Potential impact on New Mexico
"What the Trump administration is trying to do, or it looks like they're trying to do, is to unconstitutionally coerce states to do something, and that something is to reinstall cash bail," said Joshua Kastenberg, a University of New Mexico law professor.
Other attempts to withhold federal dollars from states as a tactic for pressuring them to align with the president's agenda have been challenged in the courts. On Friday, a U.S. district judge barred the Trump administration from denying funds to 34 sanctuary cities, including Albuquerque.
Whether the latest order will end up in court likely depends on what the Trump administration does next.
The administration is allowed to collect information, Kastenberg said, which is all the broader order directs. And if that information is given to Congress, then Congress could penalize future funding to try and pressure states to re-implement cash bail. It's a tactic that has been used in the past. During the Reagan administration, Congress authorized the White House to withhold 5% of state highway funds if they did not set a 55 mph speed limit.
But if the president unilaterally decides to withhold funding from states without cash bail, a court challenge seems more likely.
"When a state determines that cash bail is no longer viable and will outlaw it, that is a democratic process, and it's supposed to be free from federal interference," Kastenberg said.
A history of pretrial detention in New Mexico
Since the passage of bail reform in New Mexico, the issue of pretrial detention has remained a contentious one.
New Mexico Attorney General Raúl Torrez, who was the Bernalillo County district attorney before being elected attorney general in 2022, pushed unsuccessfully at the Legislature in his previous position to expand the grounds for pretrial detention.
As district attorney, Torrez also suggested allowing judges to order a defendant kept in custody even without a motion from the prosecutor, as is currently required.
But such proposals were staunchly opposed by public defenders and other groups and failed to win approval at the Roundhouse.
In recent years, Lujan Grisham has also pushed to change New Mexico's pretrial detention system but the Democratic-controlled Legislature has shown little appetite for such legislation.
Sen. Joseph Cervantes, D-Las Cruces, the influential chairman of the Senate Judiciary Committee, in 2023 described presumption of guilt as an "unconstitutional shortcut" and said the current system was working largely as intended.
Still, if Trump gets his way, the system may be in for another seismic change.