Nine months after Rutherford and his associates were sentenced—and with the war past—on March 21, 1919, the appeals court ordered bail for all eight defendants, and on March 26, they were released in Brooklyn on bail of $10,000 each.

The decision was immediately appealed to the U.S. circuit court of appeals. But bail pending the hearing of that appeal was arbitrarily refused by Judge Howe,d and on July 4, before a third and final appeal for bail could be heard, the first seven brothers were hastily moved to the federal penitentiary in Atlanta, Georgia.