The Pendulum Swings Back: States Rebuild Pretrial Detention Powers

The bail reform story of the early 2020s was about taking cash out of the system. The story of 2026 is closer to the opposite. The momentum has shifted away from broad no-cash mandates and toward structured risk assessment, public safety carve-outs, and expanded authority to detain.

The numbers are striking. More than a quarter of states that have a constitutional right to bail have proposed or passed amendments in just the past few years, and most of those changes expand who can be held in jail before trial. North Carolina enacted a law requiring judges to weigh prior dangerous behavior and mental health history. Several states now require courts to document why they deviate from a validated safety assessment.

For the bail industry this is a complicated moment. More detention is not automatically more business; a defendant held without bail writes no bond. But the harder line on "risk" reflects a public mood that is more receptive to the secured-release argument than it was five years ago. The political opening is real.

The caution worth flagging: much of the new language is broad, leaning on words like "risk" without tight limits. Agents have a stake in how that discretion is used, both because it shapes who is bailable and because today's broad detention tool can become tomorrow's broad release tool under a different administration.

Source: ALEC; no-cash-bail states.