No, New York doesn’t have ‘cashless bail’

President Donald Trump issued an executive order Monday taking aim at states like New York by threatening to take away federal funds from states that have adopted “cashless bail” policies. But “cashless bail” is a meaningless phrase, and the executive order’s own parameters for bail policies would appear to largely exclude New York.

Bail is a monetary condition paid either through cash or bond, so there is no such thing as bail without money. The vague and inherently paradoxical nature of the term “cashless bail” has at times made it difficult to pin down how exactly Trump and other Republicans may target states that have limited or eliminated the use of bail. 

“We don't have ‘cashless bail’ in the state of New York,” Gov. Kathy Hochul told reporters on Tuesday. “(Trump) thinks we do, but we don't. He has no concept of how our laws work here.”

The president’s new executive order offers equal parts specific and broad guidance on what the term means. The order directs U.S. Attorney General Pam Bondi to create a list of states that, in her opinion, “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, including offenses involving violent, sexual, or indecent acts, or burglary, looting, or vandalism.” Jurisdictions that fit the bill may see federal aid pulled. 

New York’s bail laws don’t quite fit that description, particularly after changes pushed by Gov. Kathy Hochul to rollback parts of the 2019 reforms.

Most Class A, violent and sex offense felonies have remained eligible for bail, even under the original 2019 changes. But before the law even took effect in 2020, lawmakers approved a slight expansion of bail-eligible crimes to stave off already building criticism around several offenses originally left off the list. Hochul pushed for two more rounds of rollbacks in 2022 and 2023, expanding the list of bail-eligible offenses and providing judges more discretion to set bail. Most significantly, she succeeded in removing the “least restrictive means” standard when setting pre-trial conditions. Previously, judges said they felt constrained not to set bail even if a case allowed for it. The change was meant to provide greater discretion. 

In fact, judges in many high-profile cases that have made the news – including most of those from New York that the Trump administration cited in a press release about the executive order – could have set bail but ultimately did not. Hochul pointed that out on Tuesday, accusing Trump of using “false narratives,” while reiterating her call for judges to make use of their discretion under the law. “I think the question is, come on judges, are you doing your part here?” the governor said.

But the definition of ‘cashless bail’ in the executive order is broad enough that it could in theory be used as a political cudgel against any state that limits bail in any way. Although New York has retained the option of bail for many serious offenses, not all crimes that could be deemed a “threat to public safety and order” are automatically bail-eligible in the state. And the finer details of the state law and the decision of judges may not matter much, if the Trump administration just plans to wield the executive order for political purposes to attack Democratic areas for optics around crime. 

Hochul told reporters on Tuesday that she recently spoke with the president about the prospect that he would deploy the National Guard in New York under the pretext of combatting crime. “I said, ‘Mr. President, I can show you all the data you need to show that crime is down … our policies are working,” she said. She didn’t comment on how Trump responded to her pleas and attempts at showing that crime is not so dire in New York that the federal government needs to step in. 

Days after that conversation, though, Trump signed the cashless bail executive order, with a distinct focus on New York crime as part of his public justification.