One early afternoon in March, Michael Boren was driving to a PetSmart in Albuquerque, N.M. to pick up some food for his Great Dane. The driver in front repeatedly hit his brakes. As Boren tried to pass, the vehicle swerved to the left, forcing Boren to brake hard.
Both vehicles came to a stop. The other driver, standing 6-foot-5, hopped out and approached Boren’s Ford pickup, spouting obscenities. Boren, 71, reached inside the driver’s side door for the revolver he was legally allowed to possess in the open-carry state. The driver ran back to his vehicle and sped off.
As Boren then continued to the store, several police cars pulled him over. The other driver had telephoned police and said Boren threatened him with a weapon near a school building, pointed the gun at him and racked a bullet to the chamber. Boren, who disputed that, was arrested and charged with aggravated assault with a firearm.
Prosecutors asked Second Judicial District Court Judge Jennifer Wernersbach to jail Boren until trial. But the judge, seeing Boren had no prior arrests or convictions, allowed him to return home on condition he surrender his weapons while awaiting trial. Seven months later, following a two-day trial, a jury determined Boren acted in self defense and found him not guilty.
“If I sat in jail for seven months, it would have torn me down,” Boren said in an interview. “I have medications. I have a job, I have animals that I take care of. I would have lost everything.”
Boren avoided spending those months in jail, for a crime he was found to have not committed, under a cashless bail program started in 2014 after the New Mexico Supreme Court ruled that requiring bail discriminated against indigent defendants.
But cashless bail in New Mexico and other parts of the nation is now in doubt amid attacks by President Donald Trump and his Republican allies in the US House and Senate, backed by Sens.
Its elimination, supporters of the system say, could pressure more accused defendants to take plea bargains as an alternative to indefinite detention, even if there is a good chance they could be found not guilty at trial or have their cases ultimately dismissed. And it could be a boon for the bail-bond industry that has declined in parts of the country where cashless bail has gone into effect.
Last month, in a bipartisan move, the US House voted 237-179 to eliminate cashless bail in the District of Columbia. Another bill, scheduled to be voted on later this month, would prevent New Mexico and other states that allow cashless bail from receiving law enforcement grants from the Justice Department.
“We can’t allow arrested individuals who are awaiting trial to be released back onto the streets to commit more crimes against their communities,” said
Trump last month sought to blame Illinois’s cashless bail system for an attack in which a woman was set on fire as she rode a Chicago Transit Authority train. The suspect, Lawrence Reed, who also has a history of psychiatric hospitalizations, had been arrested 72 times in 30 years—15 of those arrests since 2016— and was awaiting trial on aggravated battery charges for striking someone in the head at a hospital, prosecutors said. A judge had ordered the suspect released and placed on electronic monitoring over objections from prosecutors.
“They burned this beautiful woman riding in a train,” Trump said last week in Washington. “A man was arrested 72 times — think of that. And they’ll let him out again. The liberal judges will let him out again.”
Following Trump’s criticism, Illinois Gov. JB Pritzker defended the state’s cashless bail system, which has been in place since 2023. Like several other jurisdictions that have eliminated cash bail—including New York and New Jersey—Illinois requires judges to determine whether the accused should be released pending trial due to the person’s criminal history or seriousness of the charges.
“It is the judgment of those elected judges that ultimately determines in most cases whether somebody is released or not,” Pritzker said. “It’s a better way than bail because bail is just sort of an automatic out for people who happen to have just enough money.”
Bail Bonds
Chicago legal experts argue Reed’s case is unusual. They cite recent statistics from the Cook County data showing that 94% of people placed on pretrial release weren’t charged with a new violent crime or crime involving other individuals. Also according to the data, 83% haven’t been charged with a new misdemeanor or felony.
When Illinois voters were considering adopting cashless bail, opponents said the move would result in more violent criminals being released pending trial and committing more crimes, said Sharlyn Grace, deputy public defender for the Law Office of the Cook County Public Defender.
“What we have seen in reality is the exact opposite. The vast majority of those on release do not re-offend and return to court for trial,” Grace said. “But the White House is using the same kind of misinformation, fear-mongering, talking points.”
Grace said she believes the move to eliminate cashless bail is being pushed by the bail bonds industry. Bail bondsmen pay the bail — usually 10 percent of the total bond — to secure the defendant’s release in exchange for a premium guaranteed by collateral such as a deed or other asset. If the defendant fails to return to court, the bondsmen tracks them down, returns them to jail and begins the process of collecting the full bond or collateral.
Grace called cash bail “a form of economic discrimination.” The federal government would probably face litigation from jurisdictions that have cashless bail if withholds funds, Grace said.
Michelle Esquenazi, president of the National Association of Bail Agents, agreed that re-implementing secured bail nationwide would result in more bail bond agents entering into the industry of about 10,000 agents. But providing secure bail, she said, also provides more options for defendants while guaranteeing their appearance in court.
Esquenzai’s group has been working with Stefanik, who has announced she is running for New York governor, to eliminate cashless bail and was mentioned as a supporter in Stefanik’s September press release announcing the bill.
The White House and Justice Department should “team up” with the bail bond industry to better ensure an industry that doesn’t discriminate against poorer defendants, Esquenazi said, while ensuring there is a secured bail system that doesn’t rely on taxpayer initiatives or government funding.
“Secured bail is a proven accountability piece of the criminal justice system,” she said.
‘Unconstitutional Behavior’
Washington, DC, has used cashless bail since 1992. Its system became a model for courts elsewhere.
Longtime attorney Todd Baldwin, who heads a group of 200 court-appointed defense attorneys in DC’s Superior Court, said he sees bail bondsmen returning to the nation’s capital.
“It was a disaster in the 1990s to hold so many people who economically couldn’t afford to put forth the money that was set for a cash bond. And the people who made a lot of money were bail bondsmen and the bail companies,” Baldwin said. “Those people were making money on the indigent poor who couldn’t put up bond.”
In addition to the growing bond industry, industry observers also say eliminating cashless bond will result in jail overcrowding, which would mean more jails being built.
New Jersey voted to eliminate cash bail in 2017. Mary Ciancimino, deputy public defender of the Hudson County trial region, said restoring cash bail could prompt more defendants to accept plea deals, even if their attorneys argued the evidence showed they likely would be acquitted or even a possibility that prosecutors would dismiss the charges for lack of evidence.
If defendants are jailed for months or even years as they await trial, Ciancimino said, they often become more desperate to take an offer of time served and a conviction on their records, rather than go to trial.
“When a person is locked behind bars, their main focus is being released, at any cost,” she said. “They often aren’t thinking clearly or listening to their attorneys who are filing motions to suppress evidence or statements, which takes time in the court system.
“If they are in jail awaiting trial, they sometimes don’t want to wait that amount of time and will take whatever offer prosecutors make. That goes to the heart of unconstitutional behavior.”
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