The debate over cash bail has seen renewed vigor over the lastfew weeks when President Trump surged federal resources to address Washington, D.C.’s crime problem, and signed an executive order denouncing “cashless bail” systems that have “substantially” eliminated cash bail as a potential condition of pretrial release from custody for crimes that pose a clear threat to public safety and order.
The presidential activity followed a high-profile incident in Cincinnati, where an individual released on gun charges after posting just $400 was charged in a violent mob attack.
Public safety is the No. 1 priority of government. People deserve safe streets, safe schools and safe neighborhoods. We have served in federal and state law enforcement, as assistant U.S. attorneys, U.S. attorneys, state attorneys general and county prosecutors. The president is right: cashless bail without considerations of dangerousness, safety risk, flight or the seriousness of the chargesis a recipe for disaster. It has failed in New York, just like every bail system that does not consider the severity of offense or dangerousness of offender.
Ninety-four federal districts — where we served — and various states use risk-based systems with great results. Public safety is better served when dangerous people and dangerous crimes are part of the pretrial detention equation. Put simply, risk matters more than money — and release should bebased on the safety risk to the public.
A great example of why risk matters more than money is Sean “Diddy” Combs. He has virtually unlimited funds and offered roughly $50 million to secure his pretrial release, but the federal court detained him based on the nature of his charges, allegations of witness tampering and intimidation, and Combs’s international access. While Combs was later acquitted of the most serious charges against him, the decision to detain him while he awaited trial was appropriate under the circumstances.
Whether it is a wealthy high-profile defendant like Combs, or other individuals with means or relationships to cash-rich drug gangs, a system that does not consider risk is perfect for them — they can continue to commit crimes, buying their way out if they happen to get caught.
There are two very simple considerations here: the person and the offense. Courts should consider the person when determining whether to release them after arrest. This includes the severity, consistency and recency of their criminal record. A person who commits dozens of “low-level” offenses should be not automatically released when they have demonstrated that they cannot follow the rules. A first-time offender accused of a particularly vicious crime may need to be detained.
Legislatures also hold significant power here. They can establish a pretrial system where a judge, informed by a risk assessment and an adversary proceeding, decides whether to release or detain a defendant in the interest of public safety. Legislatures also can select offenses that will automatically or presumptively result in detention. They can institute restrictions on people who are arrested while on pretrial release for something else, such as parole, or probation. Cashless bail without consideration of safety risk would permit near-certain and, at times, unchecked release.
We saw this scenario in downtown Cincinnati. On July 26, a woman was knocked unconscious and a male seriously injured in a mob. Four individuals have been arrested for the attacks, with bail set between $150,000 and $500,000. The highest bail was set for Montianez Merriweather, who at the time of the attack was free on just $400 bail (10 percent of a $4,000 bond), despite being indicted for alleged gun crimes, among other charges.
Merriweather’s latest $500,000 bail requirement is steep, but if he could find a bondsman to cover it, he again would be set free, despite already demonstrating that he is a risk to reoffend, and reoffend violently.
Critics across the political spectrum have condemned the decision to allow Merriweather, while facing serious charges, to walk free with such a small bail payment, only to allegedly commit a violent offense. Amid the public outrage, America is again confronted with the failures of state bail systems that reward the ability to pay over an objective assessment of safety risk to reoffend.
The president is correct: Cashless bail is wrong for public safety because it contains no risk calculus. Cash bail (without a risk calculus) is also the wrong answer. The right system is one that blends risk and accountability, to ensure defendants appear in court, and enhance public safety.
Let’s follow the president’s lead and detain the dangerous people who commit crimes. Let’s also leave room for strategic pretrial detention solutions such as those in our federal system that are effective at protecting the public from harm.
John Anderson is a partner in the Santa Fe office of Holland & Hart LLP where his practice focuses on complex civil litigation and government investigations. From 2018-2021, he served as United States attorney for the District of New Mexico. Anderson previously served as an assistant United States attorney in the District of New Mexico from 2008-2013.
Scott A. Coffina served as the county prosecutor for Burlington County, N.J. and as senior deputy chief counsel to Gov. Chris Christie as criminal justice reform was first being implemented in New Jersey. He previously held positions as an associate counsel to President George W. Bush and an assistant United States attorney.
Bill Schuette has held leadership roles in all three branches of government and in multiple areas in the private sector. He has served as a member of Congress, representing Michigan’s 10th District from 1985-1991; as a judge of the Michigan Court of Appeals; and as attorney general of the state of Michigan.