The argument against imposing cash bail for pre-trial release of people accused of crimes was straightforward: The crime and personal characteristics of the accused didn’t matter. If you had the cash, you went home. If you didn’t, you sat in jail. It was, to a great degree, unfair and ineffective. Even worse, it was extremely expensive, holding individuals charged with petty offenses in jail at great public expense for pretty much no reason.

After all, what was the grave fear that someone would drink in public again if cut loose? The key justification for bail was to compel defendants to return to court as required. The one thing the experiment proved was that for the most part, they did. Indeed, the biggest factor was the reminder text of the next court appearance. Few people wanted to be saddled with a bench warrant and most were willing to confront their accusation and take the punch, whether deserved or not.

But it also meant that there would occasionally be the defendant cut loose who would go out and commit some heinous crime while released. It was quite rare, but it happened. And it happened back when cash bail was the norm. The poor judge who complied with the prosecution’s bail request would end up with his face on the front page of the New York Post with the caption, “Worst Judge Ever,” when the defendant engaged in some brutal act to some pretty face.

At the time legislatures began their crusade to eliminate cash bail, not just for those accused of petty offenses but for pretty much everyone short of rape and murder, and occasionally including both crimes, it was obvious to those of us who spent years advocating for cash bail reform that the new regime went too far, lacked the safeguards for specifics relating to the case and the defendant, and was doomed to fail. To be fair, the howls of criticism from law enforcement and its friends began well before anything actually happened, predicting anarchy and chaos, while those of us who welcomed reform, even if this wasn’t exactly what we approved of, were willing to watch the experiment play out. After all, perhaps we were wrong and perhaps humanity would prove better than we expected, experience notwithstanding.

But the biggest downside to the excesses of cash bail reform was that it would end in the inevitable backlash, the reversal of the elimination of cash bail morphing into the requirements for excessive cash and bail lest anyone released every jaywalk again. And that’s pretty much what we got.

The long national debate over cash bail reignited in summer 2025 after the White House issued an executive order in August threatening to pull federal funding from jurisdictions that allow cashless bail.

The order channeled criticisms from conservative groups and law enforcement organizations that the bail reforms of the previous decade are allowing repeat offenders to roam free.

“Our great law enforcement officers risk their lives to arrest potentially violent criminals, only to be forced to arrest the same individuals, sometimes for the same crimes, while they await trial on the previous charges,” the order stated. “This is a waste of public resources and a threat to public safety.”

Of course, not every person previously arrested for a violent crime went out to commit more violent crimes while released. Being arrested doesn’t mean a defendant is guilty of anything, that old “presumed innocent” thing that means so much to me and so little to others. But if you’re of the view that it’s better to be safe than sorry, meaning that you would rather hold 100 defendants in custody rather than have one freed defendant go on to commit a crime, then your rejection of Blackstone’s Ratio is on you. Remember that when it’s you or someone you care about that’s accused. But you won’t. You never do.

But it’s not just the putative violent crime recidivists subject to bail revisionism. After all, any freed defendant committing a crime is intolerable in the Land of the Free.

North Carolina enacted a law in October
2025 that would require cash bail for certain offenses and create a new category of violent crime. Lawmakers were responding to the stabbing of 23-year-old Iryna Zarutska on a commuter train the previous August. Her alleged killer had a lengthy criminal history and a pending misdemeanor charge.

Texas voters approved a constitutional amendment on last November’s ballot banning cash bail for certain violent offenses, and New York Republicans are trying to further roll back the state’s divisive 2019 bail reforms, which have already been amended three times.

Laws designed to eliminate discretion based on individual and case and defendant specific factors, much like mandatory minimums or three-strikes laws, enjoy the benefit of being simplistically easy for the masses to grasp. Burn them all, as long as it’s not you and yours. The problem is they also suffer the consequences of bad laws.

In many places, however, it became a lever to keep low-income individuals in jail by setting an amount higher than they could afford. Critics of these cash bail schemes argue they create an illogical, two-tiered justice system: Those who can pay maintain their freedom, even if their release carries the same amount of public risk, while those unable to pay remain behind bars, with all the consequences that entails.

Incarcerated defendants are more easily pressured into plea deals, have a harder time preparing a legal defense, and face a host of collateral consequences.

“People that are unnecessarily incarcerated, even for two days, wind up facing a higher likelihood of justice system involvement in the future because of how destabilizing short periods of incarceration are,” says Jeremy Cherson, director of communications for the Bail Project, a national nonprofit that provides bail assistance. “People lose jobs, they lose homes, they lose access to their kids.”

There is no perfect system as long as judges lack the ability to see into the future and determine which defendants will go out and commit some heinous crime that will get the easily outraged frothing at the mouth. We always understand it was a trade-off, and bad things will invariably happen when a sound decision is made that turns out badly. But bad things happen already to a great many more people, and we know with certainty that they will occur while we can never know who might do that terrible thing that makes the self-righteous’ head explode. That, however, is the nature of a free society. Stercus accidit.