S-2705-119
Read twice and referred to the Committee on the Judiciary.
Sponsored by Marsha Blackburn (R-TN)
What it does
This bill would amend the Omnibus Crime Control and Safe Streets Act of 1968 to make states and local governments ineligible for Edward Byrne Memorial Justice Assistance Grants (JAG) if they have a law or policy that substantially limits cash bail as a condition of release for individuals charged with a defined set of "covered offenses." Covered offenses include violent and sexual crimes (murder, rape, robbery, assault, burglary, carjacking) as well as public disorder offenses (looting, vandalism, rioting, fleeing law enforcement). The restriction would take effect beginning with the first federal fiscal year after the bill's enactment.
Who benefits
Victims of violent crime and their advocacy organizations, who argue cash bail ensures defendants appear for trial. Law enforcement agencies in jurisdictions that retain cash bail systems, who would face no funding penalty. Bail bond industry businesses and their employees, whose market depends on cash bail requirements. Jurisdictions that already use cash bail broadly, who would face no competitive disadvantage for federal funding. Taxpayers in jurisdictions that retain cash bail, who would continue receiving JAG funds.
Who is hurt
States and localities that have enacted bail changes — including New Jersey, Illinois, New York, and California — which could lose JAG funding used for law enforcement equipment, training, and programs. Low-income defendants in affected jurisdictions who cannot afford cash bail and may be held pretrial regardless of flight risk, potentially losing jobs or housing before trial. Public defenders and legal aid organizations in those jurisdictions, whose clients may face longer pretrial detention. Local governments that would face a binary choice between their own enacted laws and federal funding. Researchers and reform advocates who argue pretrial detention data supports alternatives to cash bail.
Supporters argue
Supporters argue that cash bail is a proven mechanism for ensuring defendants charged with serious crimes appear in court and do not reoffend while awaiting trial, and that jurisdictions limiting it have seen measurable increases in pretrial crime and failure-to-appear rates. They contend that federal taxpayers should not subsidize criminal justice policies that, in their view, endanger public safety, and that conditioning grants on bail practices is a legitimate use of Congress's spending power — a well-established constitutional tool used in areas ranging from highway funding to education policy. They further argue the bill targets only a defined set of serious offenses, not all charges, making it a narrowly tailored condition rather than a blanket mandate.
Opponents argue
Opponents argue that cash bail systems have been shown to detain low-income defendants not because they are dangerous or likely to flee, but simply because they cannot pay — a wealth-based outcome that raises serious equal protection concerns under the Fourteenth Amendment. They contend that multiple studies, including a 2022 Arnold Ventures analysis of New Jersey's bail changes, found no increase in crime following the elimination of cash bail for most offenses, directly undermining the bill's public safety rationale. They further argue that using federal grant conditions to override state and local criminal justice policy decisions raises anti-commandeering concerns and that the bill's broad definition of "covered offenses" — including vandalism and fleeing law enforcement — extends well beyond violent crime.
Constitutional context
Congress's spending power (Art. I, §8) permits it to attach conditions to federal grants, but South Dakota v. Dole (1987) requires those conditions to be related to the federal interest in the program. The Eighth Amendment's Excessive Bail Clause prohibits excessive bail but has not been interpreted to require cash bail specifically; Timbs v. Indiana (2019) incorporated the Excessive Fines Clause against states, signaling continued Court attention to financial conditions of criminal proceedings. Equal protection challenges to wealth-based pretrial detention have been raised in lower courts but have not been definitively resolved by the Supreme Court.
Checks and balances
The Executive Branch (Attorney General) gains discretionary authority to withhold or deny JAG grants; Congress sets the eligibility conditions by statute, and affected jurisdictions may challenge the conditions in federal court under the Spending Clause or constitutional grounds.
Historical precedent
The federal government has previously conditioned JAG and other Byrne grants on immigration enforcement cooperation (the "sanctuary city" funding disputes of 2017–2020), which courts partially struck down as exceeding the Executive Branch's — though not Congress's — conditioning authority.