Resolving a 'Substantial Question': Just Who is Entitled to Bail Pending Appeal Under the Bail Reform Act of 1984?

Abstract

This article discusses the circumstances under which federal law allows convicted criminal defendants to remain free on bail while they wait to see if their conviction is reversed on appeal. Under current law, codified in the Bail Reform Act of 1984, defendants who wish to remain free on bail after conviction must prove (among other things) that their appeal will have enough merit such that it will raise at least one Defendants who cannot leap that hurdle typically must report to prison shortly after sentencing. Federal appellate courts, however, have been deeply divided over how much merit is required to show that an appeal will raise a Ten circuits define the phrase as a close question based on a questionable reading of the Bail Act's legislative history. But the Ninth Circuit has charted a different course and interpreted the requirement to mean that a defendant must prove that his appeal will raise a fairly debatable issue, as that definition has been the historical understanding of what constitutes a substantial question. Many appeals raise issues that are fairly debatable but that are not close questions. It is therefore much easier to obtain bail pending appeal in the Ninth Circuit than in circuits using the close-question test. This article argues that the Ninth Circuit has it right, and thus hundreds of defendants in the other circuits have been wrongfully denied bail pending appeal. At least some of those defendants have had their convictions overturned on appeal, resulting in the gross injustice of a wrongful incarceration.