Ending a policy of detaining pretrial defendants simply because they can’t post bail does not require us to release all criminals.

In his column questioning the constitutionality of President Trump’s effort to end cashless bail nationwide, Andy McCarthy writes that the policy itself is “indefensible.” There is, however, a defense to be made of cashless bail — a policy almost exclusively supported by progressives but that conservatives should warm up to.

First, a definition: Cash bail, the dominant bail system in the United States, is a process by which criminal defendants who have been arrested and charged may be released from jail pretrial on the condition that they give a certain amount of money to the court. The judge in a defendant’s bail hearing (which must occur within a few days of an arrest) first determines whether to grant or deny bail, and then the amount that must be paid. (If bail is denied, the defendant stays in jail pretrial.) Those who can post bail go home while their trial is pending; those who cannot post bail remain in jail.

The original purpose of cash bail is to help ensure that defendants who are released pretrial show up for their court date. If they appear at their trial, they get their money back. If they fail to appear, the court keeps the cash. Since the 1980s, cash bail has assumed a secondary purpose of preventing offenders from committing additional crimes pretrial: the thinking was that communities are safer if those who are granted bail but cannot afford it are stuck in jail.

Progressive criminal-justice reformers have long opposed cash bail, arguing that legally innocent defendants should not remain in jail simply because they can’t afford to pay it. They have a point — one’s financial situation should not be the deciding factor of incarceration. Conservatives have effectively countered, though, that letting more criminal defendants out of jail — many of whom have existing records — enables them to commit more crimes. Eliminating cash bail therefore endangers public safety.

Yet the alternative to cash bail is not necessarily releasing all defendants. In nearly all other Western democratic countries (which rarely or never use bail bonds) and a number of U.S. jurisdictions, the alternative is relying more heavily on individual risk assessment and judicial discretion. The best example is New Jersey, which eliminated cash bail in 2017 and replaced it with a risk-based system to gauge defendants’ likelihood of fleeing and/or committing more crimes if released pretrial. If a judge determines that a defendant is too risky to release, he is kept in jail without being given the option of posting bail. Otherwise, the judge can release a defendant without bail but impose any number of conditions — regular check-ins, electronic monitoring, travel restrictions, no contact orders, etc. If a defendant violates his release conditions, he will be brought back to jail.

Judges hold ultimate discretion in New Jersey over whether to put a defendant in detention or grant release, but they are informed by a universal test, called the Public Safety Assessment (PSA). This assessment estimates both defendants’ flight risk and recidivism risk based on nine objective factors including the defendant’s age, whether he or she is charged with a violent crime, criminal history, and previous failures to appear in court. Under this system, a fifth of criminal defendants are ordered to remain in jail pretrial while the remainder are released under various levels of monitoring.

One advantage of New Jersey’s bail program that progressives like is that no defendant whom a judge has deemed safe to release remains in jail simply because they can’t afford bail. Perhaps an even more important feature, which conservatives should appreciate, is that no criminal with a lengthy record is released from jail simply because he can afford bail, perhaps because he happens to have rich parents.

Of those released pretrial in New Jersey, the vast majority — about 86 percent — do not reoffend. Moreover, a 2018 report by the New Jersey judiciary after cashless bail was implemented found that defendants released under that system were “no more likely to be charged with a new crime or fail to appear in court than defendants released on bail under the old system.” The percentage of people who showed up in court also remained steady.

So if cashless bail does not necessarily result in more crime, why are many conservatives convinced that it does? One problem is that critics often conflate cashless bail with other, far more radical bail reforms. New York implemented such a reform in 2020: It did not empower judges to assess individual cases as New Jersey did, but instead tied their hands by excluding entire classes of defendants from the possibility of pretrial detention. The state barred jail time for nearly all misdemeanor and nonviolent felony defendants, mandating pretrial release regardless of one’s criminal record. A judge could no longer put someone charged with assault in jail, even if he had assaulted three other people in the last year. Unsurprisingly, Charles Fein Lehman of the Manhattan Institute found that rearrests spiked after New York’s bail reform came into effect.

Over the past few years, New York’s bail law has seen multiple rollbacks as crime rose while New Jersey’s has carried on without much controversy. If the latter model were to be adopted more widely, we would probably not see a huge surge in crime by released offenders — as New Jersey and states with similar systems have seen nothing of the sort. What we would see is a pretrial justice system that cares more about defendants’ individual charges and criminal histories and less about their bank accounts. That would be an outcome that conservatives should be more open to.