Bail While Awaiting Appeal

Some defendants can stay out on bail even after they've been convicted.

By , Attorney · Mitchell Hamline School of Law

Often, bail refers to a form of pretrial release when someone is accused of a crime. Those who post bail or are released on their own recognizance can stay out of custody while their cases are pending. In some instances, defendants can get out on bail even after they've been convicted and sentenced, while they appeal their convictions.

When Can a Defendant Get Out on Bail Pending an Appeal?

Not all states allow defendants to post bail after they've received a jail or prison sentence. In those that do, trial court judges often have a great deal of leeway in determining whether to set bail and how high to make it. If a trial court decides the issue using the factors specified by the law, the decision will probably stand. Federal law allows bail pending appeal for certain convictions if the judge is clearly convinced the defendant won't flee or harm someone and the appeal has a good chance of being successful. (18 U.S.C. § 3143.)

Limitations on Serious Crimes and Lengthy Sentences

Many states and the federal government don't allow bail if the conviction was for a serious or violent crime, such as rape or murder, or when the defendant received a lengthy sentence. For instance, a federal court decided that a defendant's sentence of 14 years and 7 months made him a high risk to leave the state; he was therefore properly denied post-conviction bail. (Sims v. Wainwright, 307 F. Supp. 116 (S.D. Fla. 1969).) The reasoning for prohibiting bail in similar scenarios is straightforward: Defendants convicted of serious crimes or facing long prison terms are more likely to skip town to avoid what's awaiting them.

On the other hand, if the conviction is for a relatively minor crime or the sentence is short, trial courts are more likely to allow bail. Many jurisdictions have determined that bail should be available if a defendant's jail sentence is shorter than the amount of time it will likely take to resolve the appeal (oftentimes a year or more). Otherwise, a defendant could win an appeal after having already served an entire jail or prison sentence.

Other Considerations for Release Pending Appeal

Unlike in pretrial bail proceedings, no presumption of innocence exists after a conviction. As a result, when there's a question as to whether bail is appropriate, most states place the burden on the defendant to show that it is.

Courts use many of the same factors in post-conviction bail decisions as they do while the case is pending. These include:

  • the seriousness of the crime
  • the defendant's criminal history
  • whether the defendant has failed to appear for court hearings in the past, and
  • the defendant's ties to the community, such as family and employment.

A defendant who might pose a risk to the public will have a difficult time convincing a judge to allow bail pending appeal. This situation applies to a defendant whose criminal past demonstrates poor decision making or impulsive behavior that has endangered others. Judges also consider the likelihood of the defendant continuing to commit nonviolent crimes if granted release.

Courts additionally need to ensure the defendant won't intimidate witnesses or tamper with evidence if freed on bail. Potential intimidation and tampering are important considerations because a defendant might receive a new trial after a successful appeal.

Lastly, trial courts can consider the merits of the appeal. If it appears the appeal is frivolous or simply intended to delay the proceedings, the court is less likely to allow bail.

Talk to a Lawyer

If you have questions regarding possible release pending an appeal, talk to your criminal defense lawyer. You might want to consider speaking to a defense attorney who specializes in criminal appeals.

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