Bail Pending Appeal  

The Eighth Amendment states that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”  This language does not create a Constitutional right to bail only a Constitutional prohibition against excessive bail.  Nevertheless, in almost all cases federal and state jurisdictions provide for reasonable bail where the defendant does not pose a danger to the community and is not a flight risk.

Once a defendant is convicted, however, and the presumption of innocence no longer applies, it is much more difficult to obtain bail pending appeal in order to avoid incarceration.  Motions for bail pending appeal are filed in the trial court. 

In federal court, as a general matter, bail will not be granted pending appeal unless the district court finds, by clear and convincing evidence, that the convicted defendant is not likely to flee or pose a danger to the safety of any other person or the community if released and that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in (1) reversal, (2) an order for a new trial, (3) a sentence that does not include a term of imprisonment, or (4) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.  (See 18 U.S.C. § 3143(b)(1))  Where a convicted defendant could have been sentenced or was sentenced to life or death, is a violent offender, or is a drug offender who was sentenced to at least 10 years in prison, bail is almost impossible to obtain pending appeal unless exceptional reasons can clearly shown.  (See 18 U.S.C. § 3145(c))