Some Americans who are convicted and sentenced for a crime can post bail (a cash payment by the defendant to the court) and then be released from custody while awaiting an appeal of their conviction. But others cannot.
The differences lie in the circumstances of each individual case – such as the severity of the crime and the defendant’s criminal history – as well as the state laws which apply.
Why was Jussie Smollett released before appeal?
Some people wondered why former Empire actor Jussie Smollett was released from jail March 16, 2022, after being convicted on March 10, 2022, of five out of six counts of felony disorderly conduct (those were related to him making false police reports claiming he’d been the victim of a hate crime).
Smollett’s initial charges had been dropped, but following much criticism, the Cook County District Attorney called for further investigation, which led to a grand jury indicting him on six felony charges, for which he went to trial.
Smollett’s sentence upon conviction of the second set of charges included serving 150 days in county jail and two and a half years on probation. He also was ordered to make restitution to the city of Chicago for just more than $120,000, and he was fined $25,000.
But Smollett’s lawyers filed an appeal the day after his conviction, and five days after that – while he was in jail serving the first part of his 150-day sentence – an Illinois appeals court ordered that he be released from jail upon posting a $150,000 personal recognizance bond.
The court said it would have been unable to resolve the appeal before he served his entire sentence. Of course, if Smollett’s appeal is unsuccessful, he will have to return to jail to finish his sentence.
Texas law allows some pre-appeal releases
Whether a person can post bail and be released from jail pending an appeal depends on the state, and it often involves the severity of the crime. For instance, for a serious crime such as rape or murder, it’s unlikely that a convicted person would be released from jail on bail, or on bond (a bondsman’s pledge to make good on the bail), in any state pending an appeal.
Under Texas law, many persons may be granted release on bond pending their appeal. But that doesn’t always happen.
Texas Code of Criminal Procedure Article 44.04(b) allows a convicted person to be released on bond pending their appeal when their sentence is under 10 years in prison and when the offense is not what’s known as a 3G offense, or an offense more serious than most (the term derives from letters in certain pertinent parts of the code).
In Texas, such 3G offenses which would preclude release on bail or bond pending an appeal include: murder, capital murder, sexual assault, aggravated sexual assault, indecency with a child, trafficking of persons, aggravated robbery, compelling prostitution and sexual performance of a child – among other crimes.
But even if a person did not commit such a serious crime and qualifies for bond prior to appeal, a judge in Texas has the discretion to approve or deny it.
To deny it, a judge might believe the defendant would not show up if the appeal was lost, or the judge might believe that the defendant might commit another crime in the interim, given his or her criminal history.
It’s possible to also appeal a judge’s decision to deny release on bail pending an original appeal. But this rarely succeeds.
Get an experienced Houston-area criminal defense lawyer
If you or someone in your family faces a criminal charge, notify the experienced Houston criminal defense attorneys of the award-winning Neal Davis Law Firm today. We can arrange a consultation for your case, and then you can decide if you want us to fight for your legal rights.