During the 2020 campaign, Joe Biden promised to "lead a national effort to end cash bail and reform our pretrial system."

It didn't happen.

Bail allows people accused of certain crimes to be released as they await trial. In many courtrooms, this includes a money deposit or pledge, and defendants can obtain release only after paying or pledging a certain amount.

This system, known as cash or money bail, means that people's freedom can depend, at least partly, on their bank balances. Many poor Americans languish in jail before their cases conclude solely because they lack money to pay bail. Most states have laws that allow for the use of cash bail, though prosecutors and judges make most bail decisions in local cases.

"In the federal system, money bail, and financial conditions more broadly, have long played a very minor role," said Marc Levin, chief policy counsel at the Council on Criminal Justice, a nonpartisan crime data think tank. "Generally, federal courts either release someone with conditions related to public safety or deny bail if it is determined that the person's poses such a high risk of flight or danger to others that this risk cannot be reasonably mitigated through conditions, such as pretrial reporting, surrender of passport, and electronic monitoring,"

PolitiFact found only two instances in which the Biden administration mentioned ending cash bail or criticized the practice.

In 2021, the administration reiterated that it would work to end cash bail in one line in its National Strategy on Gender Equity and Equality, which called for eliminating gender-based violence, saying it recognized "the harm these processes cause, particularly for Black women and families."

A 2023 Dear Colleague Letter by Biden's Justice Department that focused primarily on fees and fines refers to bail a few times. The department cites cases and research to say bail practices resulting in pretrial incarceration based on poverty violate the 14th Amendment.

Given the 10th Amendment and federalism concerns, Levin said, the federal government lacks the authority to dictate state and local bail practices through passing a law or executive action. But criminal justice reform experts still pointed to a number of actions that the administration could have taken to end cash bail. (The 10th Amendment says powers not given to the federal government are reserved for the states and the people; federalism is a system in which federal, regional and local governments share power.)

Jeremy Cherson, a spokesperson at the Bail Project, a nonprofit that advocates for ending cash bail and pays bail for people who cannot afford it, told PolitiFact the Biden administration "has not taken meaningful actions to eliminate or minimize the use of cash bail, nor limit pretrial detention."

Some of these actions, criminal justice reform experts said, could have included declaring public support for eliminating cash bail, earmarking federal dollars for jurisdictions to reform bail practices, creating a grant program to fund supportive pretrial service programs or supporting bills about pretrial justice and bail reform.

Biden stayed mum on cash bail throughout his presidency and didn't act to eliminate it. We rate this Promise Broken.

During the 2020 campaign, Joe Biden described cash bail as a "modern-day debtors' prison," and promised to eliminate it. But after almost a year in office, he has barely mentioned it.

In October 2021, the Biden administration released a National Strategy on Gender Equity and Equality, a 42-page document that calls for eliminating gender-based violence, expanding access to healthcare and educational opportunities. The topic of cash bail got one sentence: "And we will work to end cash bail and reform our pretrial system, recognizing the harm these processes cause, particularly for Black women and families."

When cash bail is set, it allows a defendant to get out of jail while their case is pending. But many poor Americans languish in jail before the conclusion of their case solely because they lack money to pay the bail. Most states have laws that allow for the use of cash bail, though most decisions are made by prosecutors and judges in cases at the local level, said Insha Rahman, vice president of advocacy and partnerships at the Vera Institute of Justice, a criminal justice advocacy group.

The Biden administration hasn't "taken any concrete steps to date to eliminate money bail or move forward on other pretrial reforms," Rahman said.

Rahman said Biden could take three steps to move this promise forward: 

• Use the federal government's bully pulpit to raise the profile of this issue, such as "statements of interest" in lawsuits challenging the constitutionality of money bail;

• Use discretionary grant programs, like Byrne Justice Assistance Grants, to set aside  federal dollars for local jurisdictions adopting bail reform and pretrial justice measures;

• Revamp the federal pretrial system, which still has one of the highest pretrial detention rates of any court system in the country.

The Biden administration could also offer its support for bills about pretrial justice and bail reform such as the No Money Bail Act or the Community First Pretrial Reform and Jail Decarceration Act. "They have been conspicuously silent on this issue," Rahman said.

If Biden takes steps toward eliminating cash bail during the next three years we will update this promise. For now, we rate this promise Stalled.

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