President Donald Trump’s recent executive order, “Taking Steps to End Cashless Bail to Protect Americans,” will build momentum toward smart pretrial release policies across the country, protecting public safety by focusing pretrial detention on risk and dangerousness.

The president’s efforts will help bring about the right type of bail system – the same one used in 94 federal districts – which properly considers dangerous people and dangerous offenses before deciding whether to release someone.

The main problem is jurisdictions like New York. In 2019, New York Gov. Andrew Cuomo signed a bail law that both eliminated cash bail for most offenses and did not consider the defendant’s danger to the community. It took less than a "New York minute" to realize this system was dangerous.

New York amended the law, but never properly accounted for a defendant’s actual risk to public safety. Some defendants could be experiencing mental health challenges that lead to new offenses, while others might simply choose to commit more crimes.

Danger to society should be a key consideration with bail

But in places like New York, the result is consistently the same: release. This led to outrageous and unsafe bail decisions, like the 2022 career criminal who smeared feces in a woman's face.

That 37-year-old defendant had been arrested more than 20 times in the prior decades, and was out after being released on two pending assault cases. In the federal system and in states that consider the offender’s dangerousness, this defendant would likely have been detained.

In fact, if this happened just a mile away in New Jersey, a state with a sophisticated risk-based bail system and the option to use cash bail, this defendant would almost certainly have been detained pending trial.

The tragic reality is that bail laws that do not consider risk do not work, as dangerous individuals are routinely released back into society. This is true for both cash and cashless bail policies that do not properly consider risk and, based on that risk assessment, tailor conditions to the defendant’s release.

Consideration of financial resources must always be second to the severity of the crime and the defendant’s criminal history. Put simply, money should not matter when dealing with dangerous crimes or dangerous people.

The primary consideration must be the protection of the public. This is true for New York-style cashless bail and cash bail without risk consideration.

There is a better way to handle bail for serious crimes

A better system, which will likely come from Trump’s executive order, puts risk of re-offense and severity of the crime first, just like the federal system and a select number of states.

The president’s executive order will accelerate the adoption of innovative bail policies where a person's ability to pay should never be the primary determinant of their release. Judges must be empowered to make informed decisions based on a defendant’s criminal history and the threats they pose to the community, not their financial status.

Legislators and governors must pass laws that provide for presumptive detention for particular offenses, regardless of the defendant’s bank account.

The president's executive order does not seek to jail people simply for being poor. In fact, it was Trump who embraced the First Step Act, the most consequential piece of criminal justice reform legislation in decades.

In my time with the president and his team drafting and passing the First Step Act, and at subsequent events celebrating second-chance hiring and second chances, Trump consistently stood up for smart-on-crime policies.

He embraced rehabilitated people with criminal records and worked to empower all Americans, regardless of their pasts, to embrace and participate in the American dream.

Instead, the executive order seeks to ensure that dangerous individuals, regardless of their financial status, are not allowed to pose a clear and present danger to our communities. This is not about low-level, nonviolent offenses; it is about stopping the most dangerous people from re-offending.

It’s time to end the destructive cycle of pretrial release that ignores risk and places cashless (or cash) systems above the safety and security of all Americans. This order is a clear sign that the administration will prioritize risk-based decisions, which will ultimately create a safer and fairer system. John Koufos is a former criminal trial attorney and is now a consultant advising the private and public sectors on technology, health care and justice issues. He worked with President Donald Trump's administration on the First Step Act, and regularly assists law enforcement leaders around the country to advance smart crime policies. Follow John on X @JGKoufos or at www.cottagefour.com

This article originally appeared on USA TODAY: Trump's push to end cashless bail will create the right type of system | Opinion

Reporting by John Koufos / USA TODAY

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