Will I Stay in Jail During My Federal Appeal?
If you’ve been convicted of a federal crime and sentenced to prison, you may be wondering if you’ll have to stay behind bars while your appeal is pending. This is a common question that many federal defendants have. The short answer is maybe. There are a few key factors that will determine whether you stay locked up or get released while your appeal is reviewed by the higher court.
What is a Federal Appeal?
First, let’s quickly review what a federal appeal is. After you are convicted and sentenced in federal district court, you have the right to appeal your conviction and/or sentence to the federal Circuit Court of Appeals. This court will examine the record of your trial and the judge’s rulings to see if any legal errors were made that warrant reversing your conviction or reducing your sentence.
The appeal process can take many months or even years to complete. During this time, your case is still open and unresolved. So the question is – do you have to stay in prison while waiting for the appeal court to issue its decision?
The Bail Reform Act
The main law governing this issue is the Bail Reform Act of 1984. This federal law states that after a conviction, the judge has the discretion to release you pending your appeal, or require you to remain detained until the appeal is decided. The judge is supposed to consider several factors:
- The nature of the crime you were convicted of
- Your criminal history and background
- Your ties to the community
- Your conduct while on pretrial release
- The strength of your appeal arguments
Based on these factors, the judge will decide if you are a flight risk or a danger to public safety. If so, you’ll probably stay locked up during the appeal. If not, you may get bail while waiting for the higher court’s ruling.
Violent or Dangerous Offenders
In general, if you were convicted of a violent crime like murder, assault, robbery, domestic violence, etc., you are very unlikely to be released on bail pending appeal. Judges view violent offenders as too dangerous to let back out on the streets. Your flight risk is also deemed too high if you’re looking at a long prison sentence.
On the other hand, nonviolent offenders convicted of white collar, regulatory, or low-level drug crimes have a better shot at getting bail. Especially if it’s a first offense and you have stable employment, family ties, and a safe place to live if released. Still, it depends on the judge’s discretion.
Presumption of Detention
The Bail Reform Act establishes a “presumption of detention” for some offenders after conviction. This means the judge will order you detained unless you can show clear and convincing evidence why you’re not a flight risk or danger. The presumption applies if you were convicted of:
- A crime of violence
- An offense with a maximum sentence of life in prison or death
- A serious drug trafficking offense
- A felony involving minor victims or firearms
- A terrorism offense
So if your crime fits in one of those categories, you’ll have to overcome the presumption of detention with strong evidence before the judge will grant an appeal bond.
Factors in Getting Bail Pending Appeal
Assuming you don’t face a presumption of detention, here are some of the main factors judges consider when deciding bail pending appeal:
- Flight Risk – Are you likely to flee or go into hiding if released? The more ties to the community, the better.
- Danger to Community – Are you likely to commit more crimes if released? Violent offenders rarely get bail.
- Strength of Appeal – Does it look like you have a decent shot at winning the appeal and getting your conviction overturned? This can help with bail.
- Prior Record – First time offenders have better chances of getting bail than habitual criminals.
- Behavior in Prison – Good conduct and participation in rehabilitation programs can help convince the judge you’re not a danger.
Your criminal defense lawyer can argue these factors and present evidence to try to persuade the judge to grant bail pending appeal. But again, it’s a long shot if your crime is serious and violent.
Requirements of Bail Pending Appeal
If the judge does grant you bail pending appeal, don’t expect it to be easy freedom. You’ll likely have strict conditions such as:
- Electronic monitoring or GPS ankle bracelet
- Home confinement or curfew
- Reporting requirements to pretrial services
- No drugs, alcohol, or weapons
- No contact with victims, witnesses, or co-defendants
- Travel restrictions
Any violations of these conditions means your bail will be revoked and you’ll go right back to jail. The judge may also require you to post a monetary bond or put up property as collateral.
Seeking Bond While Waiting for Appeal
If the district court judge denies bail pending appeal, your criminal defense lawyer can file an emergency motion with the appellate court asking for bond. But statistically, it’s very rare for the appeals court to overturn the lower court’s detention order. Still, it’s an option if you have a good argument for release.
The appeals court will look at those same factors discussed above – flight risk, danger to public, strength of appeal, etc. Unless there’s clear error by the district judge, the detention order will stand.
Bottom Line on Bail Pending Appeal
The bottom line is that post-conviction bail is very hard to get, especially for violent crimes and serious drug trafficking. Judges are cautious about letting convicted felons back into the community before their appeals are decided. Your best chance is if it’s a first offense nonviolent crime and you have strong community ties and appeal issues.
But for most federal defendants, the answer is yes – you will most likely have to stay in jail throughout the appeal process, which could take a year or longer. This is why it’s critical to have an experienced federal criminal appeals lawyer fighting for your freedom while also challenging your conviction or sentence.
With sharp legal arguments and persuasive evidence, they may convince the court to grant bail pending appeal. But there are no guarantees, so you should prepare mentally and emotionally for the high probability you’ll remain incarcerated until the appeal concludes.
Other Options to Get Out of Jail Pending Appeal
If both the district court and appeals court deny bail pending appeal, you may still have other options to get out of jail:
- Request Bond from the U.S. Supreme Court – Your lawyer can petition the Supreme Court for bond pending filing of a petition for certiorari. But the Supreme Court grants this very rarely.
- File a 2255 Motion – This collateral challenge argues your conviction/sentence was unlawful. If granted, your release may be ordered while the 2255 is pending.
- File for Compassionate Release – Argue to the Bureau of Prisons that you deserve early release for compelling health or family reasons.
- Petition for Presidential Clemency – Request that the President commute your sentence or pardon you. But this is extremely rare.
As you can see, the odds are stacked against you if you want to get out of jail after a federal conviction. But working closely with a skilled federal criminal defense attorney gives you the best chance at freedom while fighting your case.
Conclusion
The prospect of having to stay locked up in federal prison away from your family and life is scary. But unfortunately, that is the reality for most defendants pursuing an appeal. Bail pending appeal is hard to come by unless you have a strong case for release and low danger risk.
Don’t lose hope though. Keep communicating with your lawyer about any options to get out of jail. And focus your energy on your appeal – it’s your best shot at overturning your conviction or reducing your sentence. Stay positive and patient, take it one day at a time, and be ready to finally go home if you win your appeal!
References
Here are the sources I used to write this article:
DOJ Standards for Bail Pending Appeal