Ever since Congress granted federal appellate courts jurisdiction over criminal cases in 1879, defendants have had the ability to obtain bail pending appeal under certain circumstances. A high risk is involved in deciding who is entitled to bail pending an appeal. Pursuant to the Bail Reform Act, a defendant shall be entitled to bail pending appeal if he/she can prove that:
- he/she will not be a flight risk or a danger to the community while out on bail; and
- his/her appeal will be meritorious enough to raise at least one substantial question.
18 USCS § 3143 provides that a judicial officer shall order a person who is found guilty of an offense and who awaits an execution of sentence be detained, unless the judicial officer finds by clear and convincing evidence that the person shall not flee or pose a danger to the safety of other people or community if released. If a judicial officer makes such a finding, then he/she shall order the release of the person.
The judicial officer shall detain a person if he/she finds that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in either of the following: reversal, an order for a new trial, a sentence without a term of imprisonment, or a reduced sentence to a term of imprisonment less than the total time already served along with the expected duration of the appeal process.
In a case in which an appeal has been taken by the United States under section 3742 [18 USCS § 3742], the judicial officer shall order that a person be detained if the person has been sentenced to a term of imprisonment and in any other circumstances, release or detain the person.
In relation to appeals from a misdemeanor or other petty offense cases, the defendant may be released pending appeal in accordance with the provisions of law relating to release pending appeal from a judgment of a district court to a court of appeals.
