Memo to Byron York: Going To Jail Pending Appeal Is The Norm, Not The Exception

Writing in The Hill, Byron York laments the fact that Judge Walton is "determined" to send Scooter Libby to jail pending his appeal:

At sentencing this week, Walton also said that he saw no reason why Libby shouldn’t be behind bars sooner rather than later — in other words, that he should begin serving his sentence while his appeal is underway. Why the hurry? These days it’s often the case that when a defendant is judged no danger to society and no danger to flee the country, he is allowed to remain free on appeal.

Tom Maguire seconds the motion. I had the same thoughts when I first heard this. But we were all wrong. I think it is due to the fact that York, Maguire and I are not well versed in criminal law. You see, going to jail pending appeal is the norm, not the exception. The relevant statute says:

b) Release or Detention Pending Appeal by the Defendant.—

(1) Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds—

.....(B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in—

(i) reversal,

(ii) an order for a new trial,

(iii) a sentence that does not include a term of imprisonment, or

(iv) 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.

So it is the norm that there be immediate jail time, not the exception. For a civil litigator like myself, this stands things on it head. But such is the system.

Judge Walton is not having a fit of pique when he applies the law as he is here. The problem is the law, not Judge Walton. Sometimes, folks like me, York and Maguire shoot from the hip without knowing what we are talking about. And criticize public figures unfairly. This was one of those times.

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    Martha Stewart (none / 0) (#1)
    by Tom Maguire on Sun Jun 10, 2007 at 10:00:38 PM EST
    Martha Stewart was freed on bail pending appeal, although she opted to go to jail and get it done.

    I mention that because her case is often compared to Libby's.

    As to how often this happens, who knows?  But this case is not your garden variety buy and bust either, or even your garden variety white collar crime.

    pending appeal (none / 0) (#2)
    by Bushwacker on Sun Jun 10, 2007 at 10:20:37 PM EST
    As a member of the "working class" I can tell you that when someone is convicted of any charge  and sentenced, incarceration is immediate. No hugs no kisses. No looking back. I have wondered why white collar criminals remain free pending an appeal.  hmmmm?

    White Collar Crime (none / 0) (#3)
    by Electa on Mon Jun 11, 2007 at 08:32:49 PM EST
    is what I was convicted for.  I appealed to the ultra conservative 4th Cir. but did 6 mos. in prison and 6 mos. on home confinement.  Although, I won on appeal I still did the time.  My attorney asked the judge to allow me to remain free pending the appeal...nope go straight to jail do not pass go.  Fortunately I was allowed to self report which saved me from the county jail nightmare and flying the friendly skies with ConAir.