Bail system creates another hurdle for poor defendants, including recent protestors

Protesters are released from the Baltimore City Jail April 28 after being arrested during the Freddie Gray protests
Protesters are released from the Baltimore City Jail April 28 after being arrested during the Freddie Gray protests (J.M. Giordano)

Baltimore police arrested Dominick Torrence, a 29-year-old black man, on April 28 and charged him with disorderly conduct and rioting on North Avenue and Fulton Street; they say he was part of a group throwing rocks, bricks, and bottles at a fire truck. Swept up in the rioting and protests after Freddie Gray’s death, he was taken to jail.

He has never been convicted of a violent offense. His bail was set at $250,000. This is the same bail set for two of the six police officers charged in Gray's death.

Bail in Baltimore is a weird thing—and complicated, but it's worth understanding because it matters.


Here in the city, bail amounts are wildly erratic—depending on the detainee's commissioner or judge and their unique interpretation of who constitutes a flight risk or a danger to the public. The process is confusing, with some judges demanding "cash bail," which is exceedingly difficult for detainees to come up with, and some judges releasing people on their own recognizance for the same crime and similar priors. Nationally, bail-bonds are a multi-billion dollar industry, which is loosely regulated and aggressively competitive. Many of those arrested don't have the means to post bail and instead sit it out in jail.  For example, on one February 2012 day, 62 people arrested for things like trespassing or driving on a suspended license couldn't pay bail amounts of $1,000 or less, according to a 2012 Justice Policy Institute study. On average 60 percent of those arrested in Baltimore will never be found guilty. Still, due to a backlog of cases in the courts, they can languish in detention for weeks or months or even more than a year. Many defendants, sick of jail and watching from afar as their families struggle to make ends meet, simply give up and accept a plea deal. They emerge from jail in debt and less employable, with a record.

When it comes to bail, the stakes are high and consequences potentially dire for the 4,000 held in the city's jail on any given day. And Dominick Torrence just joined their ranks—along with dozens of others still in jail after the mass arrests of rioters, looters, protesters, media, and some innocent bystanders in the last two weeks.


According to the statement of probable cause, a police helicopter spotted several men "throwing various objects" at a fire truck. The police helicopter spotter communicated with the police on the ground. They converged on a group of four men and arrested them. None of the police on the ground specifically identify Torrence as throwing things. Instead, they say he was with a group. One of the men is alleged to have thrown a bottle at an armored vehicle as the officers approached.

Torrence has spent much of his life being stopped by police. Indeed, this was the 15th time Torrence had been arrested. He was arrested three times for traffic violations ranging from driving without a license (six charges) to failure to properly attach license plates (once). His criminal charges include everything from possession of drugs (eight times) to distribution of drugs (five times) with a trespass and one probation violation thrown in. Torrence pled guilty to one possession charge (others were dropped) and to distribution (three times). He was arrested twice for assault but prosecutors dropped the charges.

Despite his lengthy record, Torrence does not appear to be a danger to the public (never charged for a violent crime) nor a flight risk (his 14 previous arrests would indicate he's not that sly and cops deftly snag him when they choose).

Torrence's attorney, pubic defender and Open Society Institute fellow Zina Makar, described his bail as "prohibitively high" and "tantamount to a denial of bail" for her indigent client in an appeal she filed in Baltimore City Circuit Court on Monday, May 11. Makar insisted that, given our constitutional right to a presumption of innocence and legal precedent, there has been no "clear and convincing" evidence that Torrence is too dangerous to go free.


"This is about bail but it is also about a speedy trial and the two go together," said David Walsh-Little, chief attorney for the felony trial division in Baltimore City. "If you lose at bail, it distorts the whole system because of the overwhelmed courts. You are presumed innocent under the law and yet you are waiting and waiting and waiting in this horrible [jail]."

Here's how it works in Baltimore City.

Someone, like Torrence, gets picked up in a sweep with three others and is accused of throwing rocks, bottles, and bricks. He goes to jail where police lock him up and fill out a form saying why he was arrested. Within 24 hours, he is supposed to see a commissioner who sets bail or releases him. (These commissioners are required to have a college degree but need no legal background or expertise to score the job.) If Torrence can pay 10 percent of the bail, he gets out pending trial. If he can't, he either stays in jail or reaches out to a bondsman.

The law states that a person has the right to an attorney at this initial bail appearance. Thanks to a 2006 class-action suit filed by the Baltimore-based firm Venable, with some assistance by University of Maryland Law professor Doug Colbert, who has worked with his students for more than 15 years to lay the groundwork for this precedent-setting case, since 2012, Maryland is now required to provide lawyers for all detainees from the very beginning of the legal process, and in this case, that means the first time someone goes before a bail commissioner. The decision was appealed but upheld the Maryland Court of Appeals in 2013.

Within 48 hours, the accused can appeal his bail before a judge—as a group of men did last week in Judge Devy Patterson Russell's Wabash Avenue courtroom. The lawyers and judges sat in the courtroom while the inmates appeared on a video monitor from the jail to save corrections officers the trouble of transporting them to court. It is sometimes hard to hear what they are saying but this doesn't seem to matter; the judge denies all five requests for reduced bail in the hour I spend there, an average of 12 minutes per case.

If the defendant contacts one of the bail bondsmen who litter the city, cruising the streets in their pink-and-yellow Big Boyz Bail Bonds car, sitting conveniently across the street from Central Booking as Baltimore's Discount Bail Bonds does, or wedged into tiny mom-and-pop spaces in every neighborhood, he borrows the 10 percent from the bondsman.

This, in essence, becomes a flat fee he owes the bail-bond company and is typically collected via a monthly payment plan. The bail-bond company can charge the full 10 percent but many charge less on the down low because they want the business. For example, Big Boyz Bail Bonds advertises this "1% down" writ large on their home page with "to qualified applicants" writ teeny-tiny beneath. "Qualified applicants" are, say, frequent flyers or those who steadily refer friends and relatives. Bail bondsmen, who are required to make sure the defendant shows up for all court appearances, make a handy profit thanks to a powerful lobby in Maryland and at the national level. They regularly defeat efforts to reform the system. (For a detailed expose of the industry's troublesome business practices, see Edward Ericson Jr.'s "Big Boyz Bail Bonds Follows the Law. But do They Keep Their Word?" in the March 27, 2013 issue of City Paper.)

There are a slew of problems with this system.

First, commissioners are supposed to let those who are arrested know that they have a right to an attorney at that initial bail hearing. Those initial bail proceedings aren't open to the public so what the commissioner says about the right to an attorney or how he says it goes on behind closed doors. And what they say matters—a lot.

“I consider bail the most important stage of criminal proceeding,” said Colbert, explaining that studies show those who have a lawyer at this early point in the process are fives times more likely to be released for nonviolent offenses. “And what has been taking place is that many eligible people have been giving up their right to a lawyer under circumstances which are problematic and troubling.”
Colbert, who works pro bono doing eight-hour shifts in the jails in the city and the county, said there is not even time enough to introduce himself to those who’ve been arrested before stepping in. Worse, because the initial conversation takes place behind closed doors, it’s not clear what goes on when the person is offered a lawyer. “What we have been hearing is that people are told ‘you have a right to a lawyer and if you want one, you’ll have to go back to your jail cell and we’ll get you one. It could be a few hours or the next day, or you can have a hearing right now before me and I’ll make a decision for you.’”

Torrence, the man arrested for throwing things at a fire truck, declined legal representation at his first bail appearance; his current public defender, Makar, does not know why.

“Many of us believe that, whether unintentional or not, many defendants are not being given an opportunity to exercise their right to counsel because they believe that substantial delay will occur and they haven’t met the person who would be able to assure them that they would advocate strongly on their behalf,” said Colbert. “People are scared. They don’t want to appear that they don’t trust in the commissioner making fair decision. They don’t want to antagonize him. If person deciding your freedom says, ‘you can have hearing before me or you can wait until lawyer appears or shows up but you’ll have to go back to your cell and wait . . . word gets out, you don’t need a lawyer. Just trust the commissioner.”
While the bail commissioner at that first appearance has the ability to release an offender on his or her own recognizance, it rarely happens. In fact, 57 percent of people in jail were not even offered bail at all, according to a 2012 study of Baltimore’s bail system by the Washington, D.C.-based Justice Policy Institute, a nonprofit research organization. Of those who had a bail set by a commissioner, less than a fourth saw that overturned by a judge when they appealed.
“The determination to release someone on recognizance or to order bail often becomes a subjective decision,” said Colbert. “And that’s where the most prejudice takes place against certain defendants and certainly race plays a substantial role in who is held in jail and who can regain their freedom.”
Baltimore’s jail hold 4,000 people a day on average—and nine out of 10 are not there because they are guilty, they are simply awaiting trial. Most are there for nonviolent offenses—and while the city’s African-American population is 63 percent, they make up 89 percent of the jail population. And the longer they sit there, the more likely they are to accept any plea deal offered by the state.
Baltimore City public defenders see it over and over again. After a client has been sitting in jail for months and the state offers a deal that amounts to time served, the client agrees to a guilty plea. While jailed, the defendant has likely lost his job. Unable to earn money, he has likely lost his apartment, forfeited his car, fallen behind on child-support payments, or sent his family—limping along on one income instead of two—drifting into poverty. He just wants out. But when he gets out, he now has a record, no permanent address, no means of transportation, and lots of bills in arrears. His chances of landing a decent job are slim.
In some ways, it’s the luck of the draw. If a person is arrested and charged with the exact same crime in Washington, D.C., he is unlikely to be detained pretrial since that city has shifted to a system where money and bail are not the knee-jerk response to every arrest—and 85 percent of those arrested are released pretrial. D.C., like many cities across the country, uses a standardized risk assessment (a series of questions about the person that have been tested to ascertain their likelihood of showing up for future court appearances) and judges there rely on things such as drug-use monitoring, trackers, and rehab to keep tabs on those who don’t pose a danger to the public.
“Keep in mind that most people arrested are not convicted of crimes,” said Colbert, pointing out that Maryland’s statewide conviction rate is 40 percent, which means that three out of five people can stay in jail 30 to 45 days only to learn that the prosecution is dismissing the charges. “That’s a substantial hardship.”
Worse, those who have stayed in jail pending trial typically receive harsher punishments than those who were released on their own recognizance or “those able to purchase pretrial freedom,” according to Pretrial Justice Institute, a Gaithersburg, Maryland, nonprofit that studies the issue. Experts speculate that this is due to an unconscious bias among judges and juries who look more favorably on a defendant that has been out working a job every day, paying the bills, and taking care of family than someone who has been sitting around in jail for months doing nothing. Juries also notice details such as if a defendant is brought in by corrections officers or is free to move about.
Makar, Torrence’s public defender, filed a writ of habeas corpus on his behalf last week and said his confinement is wrong on many levels.
First, the police report said he was with a group of people throwing things at a fire truck but never specifically named him as one of those throwing things.
Second, she insisted there was no individualized evidence that he posed a danger to the public.
Third, she took issue with the way bail operates in general in Baltimore City and argued that the law requires judges to “consider less financially onerous conditions of release.” Otherwise, what we are saying as a society is that those with money can buy freedom but those who are poor can’t.
“No bail means you’re too dangerous to be allowed back out, too much of a risk to society and that is before your individual liberty,” Makar said. Detaining people before trial “should be the exception,” she insisted.
Which brings us full circle back to Freddie Gray and Sandtown.
According to a 2015 study by Prison Policy Institute and the Justice Policy Initiative, Baltimore City residents make up a third of the state’s prison population though they make up only one-10th of the state’s population. Not only is the city imprisoning people at a much higher rate, it is skewing the odds by neighborhood.
The highest incarceration rate in the state is in Sandtown-Winchester/Harlem Park where 458 residents are serving time; the lowest is Roland Park/Poplar Hill where three are imprisoned. (And it’s easy to say Sandtown is a high-crime area so this makes sense, but remember that the bulk of arrests in the city are for possession and distribution and, according to the Substance Abuse and Mental Health Services Administration, whites use marijuana and cocaine at higher rates that African-Americans.  College students, clustered in the north of the city, are also regular users, but they aren’t the ones being arrested for it.
Meanwhile, all six officers charged in Freddie Gray’s death were promptly processed and out on bail within hours—even though the charges included murder. But a person from Sandtown is much more likely to stay in jail pretrial, to ultimately land in prison and to begin—or continue—his or her family’s attendant downward spiral into poverty.
Setting bail at a quarter-million dollars for someone who is indigent is absurd and perverts a system that is supposed to be equal, Makar said. She takes issue with the entire bail system, pointing out that people who present a clear and convincing danger to society should not get out simply because they have money and those who are not a danger should not be held simply because they are poor. “You’re essentially saying you can be free, but only if you have money,” she said. “It doesn’t seem right.”