"Every day over 450,000 Americans sit in jail not because they've been convicted of anything, but because they are too poor to pay bail & don't have high powered attorneys."
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Do more than 450,000 Americans sit in jail because they are too poor to pay bail?
A California Democrat responded to news of Paul Manafort’s pretrial jailing by pointing out that many other Americans suffer the same fate, due to a simple lack of money.
Responding to an appearance by Harvard Law Professor Alan Dershowitz on Fox & Friends in which Dershowitz called the pretrial jailing of Paul Manafort "unfair," U.S. Rep. Ted Lieu took to Twitter to point out how pretrial detention affects the poor.
"Dear @AlanDersh: I hope you will work with us on bail reform. Every day over 450,000 Americans sit in jail not because they've been convicted of anything, but because they are too poor to pay bail & don't have high powered attorneys," Lieu tweeted.
Various media outlets and experts in the field have referred to a figure of 450,000 Americans when discussing the scope of the problems with bail. However, we wanted to figure out where Lieu got his numbers from, so we did some digging of our own.
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Ultimately, we found that the number in Lieu’s tweet is an overestimate of the number of Americans who are in jail because they can’t afford to pay bail. In addition, the statistic Lieu is referring to is not one that is kept nationally.
In other words, no accurate count exists of the amount of people in jail in America who are too poor to pay bail, so there’s no way to fully verify Lieu’s claim.
The real meaning of "over 450,000"
We reached out to Lieu’s office and asked where they got the number of 450,000 Americans from. As evidence, Jenna Bushnell, Lieu’s communication director, cited a Marshall Project article and Bureau of Justice Statistics report, the latter of which discloses that there were 458,600 unconvicted inmates in local jails at the end of 2016.
There’s just one problem: that’s not the statistic that Lieu is describing in the tweet.
In his tweet, Lieu equates the Americans who "are in jail not because they’ve been convicted of anything, but because they are too poor to pay bail" with the 458,600 count from the BJS report.
However, the BJS statistic is a count of the total number of Americans who were detained and held in jail before their trials. That count includes those who can’t afford to pay bail, but it also includes other groups of people who are in jail before trial for different reasons. Included within that "over 450,000" statistic are people who are not bailable, like those being held without any bail, meaning that no amount of money paid would result in their release.
In other words, Lieu’s tweet is an overestimation of the number of Americans who are too poor to bail their way out of jail.
And there are still other groups included in the 458,600 figure.
"The unconvicted population in jails can also include mentally-ill persons awaiting commitment to a mental-health facility," Darren Hutchinson, a University of Florida professor, told us.
Lauryn Gouldin, an Associate Professor of Law at Syracuse University, said that it’s also important to distinguish between judges who make informed, intentional decisions about setting high bails, and judges who are more careless in their decisions.
"Judges setting bail may be oblivious to the financial circumstances of those who end up detained (so is it ignorance/judicial accident that leads to detention) or judges may deliberately set high bails to assure detention for those they believe are high public safety/flight risks," Gouldin said.
Because the BJS data only distinguishes "convicted" from "unconvicted" members of the jail population, there’s no way Lieu would know the exact number of how many people are in jail because they’re too poor to pay bail.
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Although the data on how many people can’t afford to pay bail is scarce, the experts we spoke to pointed to some resources that were the best data available.
Gouldin cited a Vera Institute of Justice study that said nine out of 10 felony defendants are unable to afford the bail amount set by the judge.
Meanwhile, Insha Rahman, a program director at the Vera Institute of Justice, pointed to two studies that locally analyzed how many people were being detained pretrial due to an inability to pay bail.
In all three studies, a majority of the pretrial detainees were in jail because they could not afford to pay their bail. However, both Gouldin and Rahman cautioned against generalizing the results of these studies to the national unconvicted jail population.
"I think the tweet is about as accurate as our scandalous lack of attention to what we are doing in the criminal system allows," Alec Karakatsanis, the founder and Executive Director of Civil Rights Corps, said.
Gouldin concurred, saying "It would be great if we had more information about exactly how many of the (458,600 unconvicted Americans)...spend time in jail because they can’t afford bail. I think there is more attention being paid to the fact that we don’t have this information we should have."
Our ruling
Lieu tweeted, "Every day over 450,000 Americans sit in jail not because they’ve been convicted of anything, but because they are too poor to pay bail & don’t have high powered attorneys."
The 450,000 number counts how many people are detained before their trials each year in America. However, Lieu uses it incorrectly here: included in that number are not only unconvicted inmates who are too poor to pay bail, but also unconvicted inmates who are being detained preventively and held without any bail.
Experts confirmed that there is no national figure keeping track of how many unconvicted inmates are unable to pay bail. That said, the point of Lieu’s tweet—that some Americans languish in jail without ever being proven guilty—is largely accurate.
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Our Sources
Tweet from Ted Lieu, 9:48 pm, June 16, 2018
Email interview, Jenna Bushnell, Communications Director, Office of Congressman Ted Lieu, June 21 and 25, 2018
Interviews with Insha Rahman, Program Director, Vera Institute of Justice, June 21-22, 2018
Interviews with Lauryn P. Gouldin, Associate Professor of Law, Syracuse University, June 22, 2018
Email interview, Darren Hutchinson, Stephen C. O’Connell Chair at the Levin College of Law, University of Florida, June 21, 2018
Email interview, Alec Karakatsanis, Founder & Executive Director, Civil Rights Corps, June 21, 2018
Email interview, Shima Baradaran Baughman, Professor, College of Law, The University of Utah, June 21, 2018
The Marshall Project, When Freedom Isn’t Free, February 23, 2015
Bureau of Justice Statistics, Jail Inmates in 2016, February 2018
Vera Institute of Justice, Incarceration’s Front Door, February 2015
Independent Budget Office, The City of New York, Pretrial Detention Rates Report, May 16, 2017
Marie VanNostrand, New Jersey Jail Population Analysis, March 2013
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