How Trump’s cashless bail executive order could affect New York

Bail reform has been a lightning rod in New York since state lawmakers proposed the policy more than five years ago. Now, it’s at the center of a new executive order from President Donald Trump that could threaten billions of dollars in federal funding.

Here’s what we know so far about the executive order and how it could affect New Yorkers.

What is bail reform?

In 2019, state lawmakers passed legislation limiting when judges can set bail to hold people accused of crimes in jail while they await trial.

The law did not get rid of cash bail altogether and still allows it to be used for some crimes, including violent offenses and various sex crimes. Judges can also set bail for several other types of offenses, including when people are repeatedly charged with shoplifting. But they can no longer set monetary bail for criminal defendants charged with many types of nonviolent crimes.

The Legislature voted to limit New York’s use of money bail after the death of Kalief Browder, a 16-year-old who spent nearly three years awaiting trial on Rikers Island on charges that he stole a backpack. He died by suicide about two years after his release.

Why has bail reform fueled so much division?

Critics of bail reform claim it stokes crime and makes it too easy for people to commit new offenses while they’re awaiting trial. They blame the measure for a pandemic-era violent crime spike, which has since largely subsided in New York City and other parts of the country.

In a social media post Monday, Republican Rep. Elise Stefanik called bail reform a “catastrophic disaster leading to a crime crisis in New York” and vowed to codify Trump’s executive order into federal law.

Criminal justice reform experts argue it’s necessary to prevent people charged with minor offenses from languishing in unsafe conditions on Rikers Island merely because they can’t afford to pay bail.

Researchers have found bail reform has had virtually no effect on rearrests overall. A 2023 study noted an increase in the rate of rearrest for people considered “high-risk” who already had a separate case pending and were later rearrested with a violent crime.

Michael Rempel, director of the Data Collaborative for Justice at John Jay College, told WNYC’s "All Things Considered" his studies have found people were less likely to be rearrested in New York City overall after bail reform took effect.

“People’s likelihood of recidivism actually declines when you release them over the long-term as opposed to exposing them to the harms of jail,” he said.

What does Trump's executive order say?

Trump declared in his executive order he “will require commonsense policies that protect Americans’ safety and well-being by incarcerating individuals to known threats.” He said federal resources should not support places with “cashless bail policies.”

Other states, including New Jersey and Illinois, have taken even more drastic steps than New York to shift away from money bail.

The order instructs the U.S. attorney general to submit a list of states and localities that have “substantially eliminated cash bail” for people who are awaiting trial for crimes that threaten public safety and order, like violent crimes, sex crimes, looting and vandalism. Federal agencies are supposed to identify any grants, contracts or other funding they provide to those jurisdictions that could be suspended or terminated.

Can the Trump administration actually do that?

It’s unclear. Alex Reinert, a constitutional law expert at Cardozo Law School, said the order's language is “vague.”

“In terms of the legality of his executive order and its effectiveness, frankly, I think that remains to be seen,” he said.

Trump has issued more than 100 executive orders since taking office in January, and many have sparked lawsuits. New York officials have challenged several of the orders in court, including directives related to transgender rights, social services for low-income families, diversity policies at schools, and funding for museums and libraries.

Reinert said he doesn’t anticipate litigation against the bail executive order right away. But if New York faces federal funding cuts, he said he expects officials to take the Trump administration to court.

How could Trump's executive order affect New York?

Reinert said he’s not sure whether the executive order will apply to New York, since the state hasn’t gotten rid of cash bail altogether.

But if the Trump administration deems New York qualifies under the order's parameters, the state could risk losing a lot of money. New York received nearly $97 billion from the federal government last fiscal year, according to a recent report from state Comptroller Thomas DiNapoli.

“It could be, fiscally, extremely damaging to the state and the city,” Reinert said.

State lawmakers have already adjusted New York’s bail laws multiple times since the policy took effect in 2020, amid criticism from law enforcement and tough-on-crime politicians.

Insha Rahman with Vera Action, which advocated for bail reform, said she hopes the executive order will lead the Legislature to defend the policy against Trump instead of scaling it back once more.

“No matter how much you roll back the law, the attacks aren’t going to stop,” she said. “The most important thing is to actually remind the New York public about why the reform was necessary and the results, and that it is actually consistent with both safety and justice.”