In most state and in federal courts, defendants might be able to remain on bail or secure bail for the first time after conviction. But unlike pretrial bail, which is supported by the constitutional right to the presumption of innocence, post-conviction bail is not premised on a federal constitutional right. Instead, state or federal statutes set the rules, which give trial judges wide-ranging discretion as to whether to allow it at all and under what conditions. The trial judge will take into consideration the timing of the request and factors set forth in laws that vary from state to state.
A convicted defendant might seek bail either while awaiting sentencing or pending an appeal. Learn what factors a judge considers when deciding whether to allow bail post-conviction and whether it's a defendant's best option.
Possible Release on Bail While Awaiting Sentencing
Defendants are convicted of crimes by way of plea bargains or trial. At the sentencing hearing, a judge decides on the appropriate punishment. In many courts, sentencing happens immediately after conviction for most misdemeanors and infractions. In more serious or complex cases, sentencing happens at a hearing weeks or months after conviction.
Defendants who are awaiting sentencing likely want to bail out in order to get their personal and business affairs in order. They might also want to help their attorneys gather evidence, such as statements from employers, that will support a light sentence or alternatives to incarceration, like an ankle bracelet.
Public Safety Considerations
Judges who have been asked to grant pre-sentence bail will be concerned about public safety. Factors relevant to public safety include:
- the seriousness of the crime, which includes whether the defendant harmed or threatened the victim or used a weapon or whether alcohol or drugs were involved, and
- the defendant’s criminal history, including prior convictions—their seriousness, number, and recency.
Finally, although the effect of a sentence on a judge’s reputation will never be mentioned during a sentencing hearing or in a statute covering post-conviction bail, judges will almost always consider the political consequences of their sentencing decisions. In most states, judges are elected and naturally fear negative publicity if a defendant whom they’ve released after conviction goes on the run or commits a new crime.
Flight Risk Considerations
When setting bail, judges evaluate whether a defendant is likely to make future court appearances. A defendant who might leave the area to avoid prosecution is a flight risk. Factors relevant to flight risk include:
- the defendant’s record of appearing (or not) in court
- the defendant’s ties to the community (such as employment, family, and property ownership), and
- the severity of the sentence and how much time the defendant is facing.
Defendants facing long prison terms are rarely granted post-conviction bail because they are more likely to skip town to avoid the sentence awaiting them.
Possible Release on Bail Pending Appeal
A conviction (followed by a sentence) is not always the end of a criminal case. A defendant can file an appeal, asking a higher (appellate) court to review and change a decision of a lower court. A defendant can appeal the conviction or appeal just the sentence.
Requests for bail on appeal are made to the trial court. Many of the bail factors that apply to bail decisions while awaiting sentencing (discussed above) also apply after the defendant has been sentenced and the case is on appeal. In addition to these factors, judges consider whether the appeal is likely to succeed or has been filed (and bail requested) merely to delay having to serve the sentence.
Defendants who ask for bail pending their appeals are rarely successful. An appeal will succeed only when the lower court has made an error that is likely to result in reversal in the defendant’s favor, or the error is so constitutionally egregious that the defendant deserves a new trial.
Defendants who have been given a short sentence are the ones for whom bail on appeal is most important. That’s because appeals can take a year or even longer. During that time, a defendant with a short sentence might well have already served the entire term. Winning an appeal will be cold comfort to a defendant in this situation.
Downsides of Post-Conviction Bail
Post-conviction bail isn’t always in a defendant’s best interest. The court can raise the amount of bail after conviction, increasing the financial burden on defendants and their families. The court can impose restrictions on what defendants can and cannot do while out on bail. If the appeal has a slim chance of succeeding, bail might drag out a stressful situation and just delay an inevitable return to custody.
Talk to a Lawyer
If you’ve been accused or convicted of a crime, consult with an attorney. Only an experienced criminal defense lawyer can review your case and explain whether bail is possible and how you can get it.