Case Explained: Why Congress’s Push to Withhold Police Funding Over Bail Policy Misses the Mark – Legal Perspective

Congress has rarely gotten involved in the details of state criminal procedure, but last week, the House did just that with the “Keep Violent Criminals Off Our Streets Act” (H.R. 5213)—one of more than a dozen federal bills aimed at reshaping bail practices across the country. Along with a similar measure floated in the Senate, the bill marks a sharp departure from longstanding norms in which state criminal procedure policies, especially those concerning bail, have been left to state and local governments.

It appears that Congress is targeting bail in an effort to address ongoing public concern about crime. However, if Congress is serious about improving public safety, it may find that these bail proposals could carry unintended consequences—especially for law enforcement.

When a high-profile case involves someone committing a new offense while out on bail, it is taken as proof that the system itself is the problem. Unsurprisingly, these cases—though relatively rare—have fueled sweeping calls for national restrictions on pretrial release. However, this has been done without regard for the constitutional limits that vary by state, the legal frameworks governing pretrial practices, or the availability of community-based support, much less the complexity of pretrial decision-making itself. Most concerning is that the federal funding being used as leverage would primarily affect programs like the Edward Byrne Memorial Justice Assistance Grant Program (Byrne JAG)—an initiative that largely supports law enforcement agencies, who have no control over bail decisions.

Bail is widely misunderstood, and bail laws are complicated, often spread across multiple statutes and legal provisions and varying significantly by state. The structure and process behind bail are rarely visible from the outside, making it hard to follow even for those trying to engage with the issue.

In the simplest terms, bail is the mechanism used to release someone facing criminal charges before they plead guilty or go to trial. It fundamentally reflects the tension between someone’s presumption of innocence and the public’s right to safety.

Courts typically have several options before trial, which vary by state:

• Release on personal recognizance (a promise to return)
• Release with non-monetary conditions (e.g., electronic monitoring, pretrial supervision, protection order)
• Release with monetary conditions (a cash amount to be paid for release, or “cash bail”)
• Detention without the ability to be released (“preventive detention”)

In practice, states function as “laboratories of democracy,” testing different approaches to pretrial detention. Some have focused on reducing unnecessary jail time for low-risk individuals charged with low-level offenses, an approach that makes practical and fiscal sense. Keeping these individuals in custody is expensive; disrupts employment, housing, and family responsibilities; and can increase the likelihood of reoffending. Other states have prioritized detaining individuals who pose a serious flight or safety risk. This focus is equally valid, as releasing high-risk defendants can endanger the public and undermine trust in the justice system.

Until now, bail policy has largely remained a matter for state and local governments. This deference is the essence of Federalism, reflecting both constitutional design and practical governance. The Tenth Amendment reserves all powers not expressly delegated to the federal government, including most matters of criminal law, to the states. It also reflects a longstanding principle: Those closest to a community’s needs and risks are best positioned to shape its justice policies.

The federal government is not mandating bail changes, of course—that would be unconstitutional. Instead, it is using fiscal pressure to force the change. This tactic is not new, as both parties have long used funding as a tool to align state actions with federal priorities. During President Donald J. Trump’s first term, federal courts blocked an attempt to withhold Byrne JAG funds from jurisdictions that did not cooperate with federal immigration enforcement. More recently, an effort by progressive lawmakers to encourage cashless bail stalled in Congress.

Such tactics are generally used as an incentive rather than a penalty; however, federal government has taken a markedly more aggressive stance on state criminal justice policies during the second Trump administration. H.R. 5213 and other proposals seem driven more by a desire to appear tough on crime than by evidence of what actually works.

This type of policy pushes states away from risk-based detention toward blanket cash bail mandates—even for offenses like “property destruction,” a vague category that can include low-level, nonviolent acts like graffiti or breaking a window. This strips courts of discretion and risks filling jails with individuals who pose little threat but lack the means to pay.

The result? More pressure on already overcrowded, understaffed local jails and less flexibility for states that are trying to get it right.

At the same time, it threatens federal Byrne JAG funding for states like New Jersey, Texas, and Tennessee that have expanded the use of preventive detention, which allows judges to detain high-risk defendants outright when justified rather than letting them buy their way out. As the main source of federal criminal justice funding for states, these grants largely support law enforcement as well as courts, crime prevention, and substance abuse programs. If Congress ties police funding to the use of cash bail, these states will face a choice between the ability to detain dangerous individuals pretrial and critical public safety funds.

The precedent is also troubling because it paves the way for a future administration to force cashless bail nationwide. Using federal dollars as leverage invites a political tug-of-war—one that undermines local control and long-term public safety goals. There are better strategies that would strengthen the shared responsibility of keeping communities safe rather than undermine it:

• Preserve core law enforcement funding. More than half of Byrne JAG funds support law enforcement. Rather than penalize agencies with no role in setting bail, Congress should ensure their funding remains stable and sufficient to ensure public safety.
• Uphold state sovereignty and support risk-based bail. Because states are best positioned to design their own pretrial systems, any federal involvement should be narrowly focused. This could include expanding judicial discretion to detain high-risk individuals while ensuring the prompt release of low-risk defendants. Such an approach balances public safety with judicial efficiency. By contrast, federal mandates aimed at certain states can unintentionally impose burdens on others with different systems.
• Invest in modern court technology. Help states upgrade outdated or fragmented court systems to improve data collection, evaluate bail practices, and support cost-effective interventions like automated court reminders, which have been shown to reduce failures to appear by 20 to 40 percent.
• Identify and promote research-backed, coordinated solutions. Instead of relying solely on mandates or funding conditions, the federal government should invest in research to help states address complex pretrial challenges—particularly those related to homelessness, mental health, and substance use. Likewise, a federal task force or commission grounded in data and best practices can support states without limiting local flexibility.

Congress is right to want to reduce crime and improve public safety, but good intentions are not enough. Real solutions take time, care, and respect for the principles of limited, effective government. Policymakers must avoid undermining the very agencies they rely on. Law enforcement should not be caught in the crossfire of bail reform debates they neither shape nor control. Even for those who view cashless bail as a failure, there are more effective, measured paths forward—ones that avoid unintended consequences and strengthen public safety.