Once someone is convicted of a crime, it's more difficult to obtain bail. It's not impossible, but bail requirements are tougher. The presumption of innocence no longer applies. It doesn't matter if the conviction was in federal or state court.

Federal Courts

Obtaining bail in the federal courts is governed by the Bail Reform Act of 1984 (Act). There's a presumption in the Act that a conviction is correct and that a convicted defendant isn't entitled to bail. This presumption applies if a defendant was convicted at trial or entered a guilty plea. Different rules apply to a defendant's release pending sentencing and release pending appeal.

Bail Pending Sentencing

Under the Act, a convicted defendant seeking release before being sentenced must remain in custody unless a judge finds by clear and convincing evidence that the defendant isn't a flight risk and doesn't pose a danger to the community. Basically, the factors relevant to bail before trial are relevant to bail pending sentence. A defendant has to overcome the presumption in favor of remaining in custody and no bail.

There's a special rule for defendants convicted of certain violent and drug-related crimes. A defendant convicted of one of those specific crimes must remain in custody prior to sentencing unless:

  • There's a substantial likelihood that a motion for a new trial or acquittal will be granted, or
  • A government attorney recommended no sentence of imprisonment, and
  • There's clear and convincing evidence that the defendant isn't a flight risk or a danger to the community

This rule applies to crimes punishable by life imprisonment or death, crimes of violence, sex trafficking of children and drug offenses punishable by 10 or more years in prison.

Bail Pending Appeal

If a convicted defendant is sentenced to prison and seeks bail pending an appeal, the judge must also consider the merits of the appeal as well as the defendant's risk of flight and dangerousness. Essentially, the judge must find by clear and convincing evidence that:

  • The defendant isn't likely to flee
  • The defendant isn't a danger to the community
  • The appeal isn't a delay tactic
  • The appeal raises a substantial question of law or fact likely to result in reversal, an order for a new trial, a reduced sentence or a sentence that doesn't include a prison term

An issue is substantial if it presents a close question that could be decided the other way on appeal. If the court thinks that an issue is substantial, it has to determine if the issue would result in a reversal, new trial or a change in the term of imprisonment. Basically, there can be an issue that's significant but wouldn't result in a reversal or new trial. If that's the case, bail isn't appropriate. Furthermore, a defendant considered dangerous won't be released, despite the merits of a pending appeal.

An appeal can also be filed by the government. Typically, a government appeal concerns the defendant's sentence. If that's the case, the Act provides that a defendant sentenced to prison must remain in custody while the appeal is pending.

State Courts

A difference between state courts and federal courts is that state courts have discretion to grant bail before sentencing or pending appeal of a criminal conviction. Nevertheless, some state laws restrict a judge's discretion to grant bail after a conviction for certain types of crimes. This can include murder, drug offenses or kidnapping.

The most important factor a court considers in deciding if bail is appropriate after a conviction is whether a defendant is a flight risk if released. As such, a court looks to the defendant's ties to the community and record of appearance in the criminal proceedings. Along with that, a court may take into account the seriousness of the convicted offense and whether the defendant poses a danger to the community if released.

Understandably, a community wants convicted criminals behind bars. At the same time, a defendant wants to be free on bail while trying to get a more favorable sentence or appealing the conviction. Whether a defendant can obtain bail before sentencing or pending an appeal is a balance between the community's interests in justice and the defendant's rights.

Questions for Your Attorney

  • Can a convicted defendant get bail after sentencing to get their affairs in order if there's no appeal filed?
  • Some appeals can go on for months or even years. Is there a time limit for how long a defendant can remain on bail?
  • Can pre-trial bail money be used for bail pending an appeal?

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