Getting Bail During the Appeal Process

A defendant who has been convicted of a crime may choose to appeal the conviction. They may have identified a procedural error during the trial, for example, or they may argue that their constitutional rights were violated. Even if you have been sentenced for a crime, you may be able to post bail and get out of custody during the course of your appeal.

You do not have a constitutional right to bail during the appeal process, as you do while awaiting a trial in a criminal case. Any options for bail while pursuing an appeal will depend on the law of your state. Some states do not provide post-conviction bail at all, while other states give judges substantial discretion in determining whether it is appropriate and how high it should be. You can appeal a judge’s decision if they deny bail or set a high amount, but this generally will not be successful unless the judge failed to consider appropriate factors.

Considering the Crime and Sentence

A defendant has the burden to show that bail after a conviction is appropriate. The court will consider the crime of which the defendant was convicted and the sentence that they received in determining whether to grant bail. Sometimes the state will eliminate the possibility if the defendant was convicted of a very serious crime, such as homicide or a sex crime. This is because the defendant no longer is entitled to a presumption of innocence and could pose a danger to the community based on their history of violence. A sentence of a lengthy prison term also may make a judge reluctant to grant bail, since the defendant would be more likely to flee if their appeal does not succeed.

Some states provide post-conviction bail in any situation in which the sentence is shorter than the time required for the appellate court to review the conviction. If the defendant stayed in custody throughout that time, they would have spent more time in jail than the length of their sentence. This would lead to an unjust result if their appeal succeeds. An appeal may take several months or even a year, so most misdemeanors may fall within this category.

Other Factors in Determining Bail During an Appeal

In addition to these two key factors, the judge may review the same factors that are relevant in post-arrest bail decisions. For example, they may consider the criminal record of the defendant, any history of failing to appear in court, their employment status, and any family relationships in the community. If the defendant has engaged in reckless or irresponsible behavior before, they are less likely to get bail while pursuing an appeal. The judge probably will find that they pose a threat to the community and may commit more crimes during the appeal process. (Even if these crimes are less serious than the crime of which they were convicted, this can be a compelling consideration.)

The judge also will consider certain factors that are specific to the post-conviction situation. To grant bail, they will need to feel confident that the defendant will refrain from tampering with evidence or witnesses while they are outside custody. This could affect any new trial that they are granted. Sometimes the judge will base their decision in part on the strength of the appeal. If it completely lacks merit, the judge probably will not grant bail.

Last reviewed October 2024