The growing push by Republicans to roll back limits on when courts can require criminal suspects to pay to get out of jail while awaiting trial could put New Mexico on a collision course with the federal government.
On Aug. 25, President Donald Trump signed an executive order directing the U.S. Attorney General and White House Assistant for Homeland Security to compile a list within 30 days of jurisdictions that have “substantially eliminated” cashless bond and instructs executive agencies within the federal government to identify federal funding and grants that can be terminated or withheld from those jurisdictions.
Trump’s order claims cashless bail policies, which allow criminal suspects to be released from custody without posting a cash bond, have “permitted — even encouraged” suspects to commit new offenses and continue to be a danger to public safety while they are released pending trial.
“Our great law enforcement officers risk their lives to arrest potentially violent criminals, only to be forced to arrest the same individuals, sometimes for the same crimes, while they await trial on the previous charges. This is a waste of public resources and a threat to public safety,” the order stated.
Republicans in Congress have also put forth proposals to ban no-cash bail policies nationwide.
Reaction from New Mexico:
In New Mexico, Republicans applauded Trump’s order.
“This order takes decisive action to restore accountability, protect law-abiding citizens, and stop the revolving door of crime that undermines both safety and trust in the justice system,” the Republican Party of New Mexico said in a statement released the same day as Trump’s executive order.
However, Trump’s approach could have severe repercussions for New Mexico, a state with a stubbornly high crime rate, a predominantly low-income population and which relies on federal dollars to make up 43.5% of its budget.
Gov. Michelle Lujan Grisham, D-NM, and Sam Bregman, the Bernalillo County district attorney running for the 2026 Democratic nomination for governor, have advocated for changes to pretrial detention laws but have nonetheless denounced Trump’s order.
“The one-size-fits-all approach announced today ignores the reality that states know their communities best,” Michael Coleman, communications director for Lujan Grisham, said when the executive order was released.
Coleman added that enhancing public safety requires evidence-based policies that match local needs rather than a federal mandate, which Coleman said threatens state sovereignty and risks politicizing the courts.
Bregman, in his own statement, said it is not right that the federal government penalizes New Mexico for following the will of the people, a majority of whom ratified the state’s constitution to revamp the bail and pretrial detention system.
John Ibarra, a public defender and former district judge, who is the current president of the New Mexico Criminal Defense Lawyers’ Association, said he is not surprised Trump has targeted bail reform in the District of Columbia, but is surprised he has extended that policy out to states.
“That’s my biggest problem with the order, is that that’s a state issue, not a federal issue, that the federal government doesn’t get to tell states how to prosecute or not (prosecute) charges, and you know how to set conditions of release,” Ibarra said.
He added that the order challenges longstanding notions in the American justice system of fairness and presumption of innocence.
“I think the big thing is that as a society, we should believe in equal protection of the laws and that rich people don’t have rights that poor people don’t have, and that we should generally, as a society, believe in the presumption of innocence, and his (Trump’s) order is contrary to both of those,” Ibarra said.
No cash bond
Illinois is the only state that has fully eliminated cash bail. But others, such as New Mexico, have restricted when it can be used, often barring its use for minor offenses and low-risk defendants.
Some states and cities have enacted these changes through legislation, but in New Mexico, the paring back of cash bail came about as a result of a 2014 ruling by the New Mexico Supreme Court, which found that cash bail violated the right under the state Constitution to pretrial release.
“Our rules have always said that release on your own recognizance is supposed to be the default, and that that means something, and that you shouldn’t treat people differently just because of how much money they have,” Ibarra said.
New Mexico voters in 2016 approved an amendment to the state’s Constitution, which prohibits the use of bond solely because of a suspect’s inability to pay but allows a suspect charged with a felony to be held in pretrial detention “if the prosecuting authority requests a hearing and proves by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community.”
Ibarra said before bail reform, judges imposed cash bail more frequently, leading to overcrowding at detention facilities and disrupting the lives of people unable to make bond.
“We have a lot of clients who previously would absolutely have lost jobs, homes, things like that, who didn’t because they were able to get out and go back to work and pay their rents,” he said.
Detention facilities, which were so overcrowded that suspects had to be shipped out of state, also had their burdens eased, and pretrial service for defendants has been strengthened, allowing better monitoring of defendants and affording them more access to treatment.
Ibarra added that while bondsmen worked to ensure defendants showed up for court, which has historically been the reason for courts imposing bail, that did not mean suspects did not commit new crimes.
“Bondsmen. Their job is not to keep people out of trouble. Their job is to make people show up to court,” he said.
What the studies say
The White House, in information released with the executive order, cited a 2023 study out of Yolo County, California, which found that, among other things, suspects released without cash bond during the COVID-19 pandemic were charged with committing new crimes 163% more often than those who were released on bail.
But Ibarra said that the study out of Yolo County is an outlier. Most others, such as one from the Brennan Center for Law and Justice, show no “statistically significant relationship between bail reform and crime rates.”
Ibbara said Trump’s order is not legal, and that while he is not able to nullify state laws and local policies, he is trying use federal funding as leverage to get states to abandon no-cash bond policies, something Ibbara predicts will be challenged in court if federal funding is ultimately threatened.
However, as a practical matter, Ibbara does not see how the federal government could implement that order, especially because no cash bail is in New Mexico; a change to the state constitution is up to voters.
“I don’t know what, you know, how the federal government believes that it can just say, well, go change your constitution. Like it’s not, it’s not that simple,” he said. Ibarra added that the order itself is vague and does not say how the federal government will enforce such an order and make judges impose a cash bond.