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.
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.