Trial penalty: cooling appellate attempts to challenge unconstitutional laws

A benefit conditioned on surrendering a constitutional right creates an impermissible burden on that right, even though the burden may be characterized as being only indirect. Sherbert v. Verner, 374 U.S. 398, 404 (1963) 

​Defendants who do not plead guilty and go to trial reserve the right:
To be found guilty only by a unanimous jury of guilt beyond a reasonable doubt and jury instruction that the burden is on the prosecution to prove its case
To raise constitutional and other legal challenges as to the manner in which the government acquired evidence to support prosecution
To appeal the conviction and any ancillary rulings underlying the conviction. For federal firearms cases this means the constitutional muster of the 18 U.S.C 922 (g) prohibitor.
In 2016, 97.3% of defendants in the federal system plead guilt and in 2017, it was around the same 97.2%. Fewer than 3% of federal criminal defendants chose to exercise their constitutional right.

Many reports and lawyers concur on the fact there is ample evidence that many defendants are compelled to waive their right to trial because the prosecutor's offers in their plea bargain far outweigh the alternate "trial penalty" that is too steep to risk. This usually takes the form of extra time served or years beyond the mandatory minimum. 



Formal talking heads will discuss the trial penalty as one of expediting court processes as the system would simply collapse if all defendants had full on trials. While true, too many defendants who are guilty in part or are wholly innocent are compelled to agree to pleas bargains that include time served, a permanent record, and loss of a right to appeal the merits of their conviction. For purposes of this comment, the focus shall be on the effects on appeals.

So given the current climate around the Gun Control Act and the Bipartisan Safer Communities Act, many advocacy groups like Giffords, Brady, and Mom's Demand Action are pushing for "stiffer" penalties for violations of the GCA and increased groups of prohibited persons and firearm classifications. Given that the expenses of a federal civil suit fall on plaintiff, they find themselves unable to advance their federal civil suit challenging the constitutionality of these statutes. A federal defendant may advance their claims through appeal but this is exactly where the trial penalty reveals its pervasive effects. Prosecutors bear wide discretion to dictate the terms and timing of plea agreements, and can insist on objectionable conditions knowing that those terms will likely never be subject to review. It is common practice to require defendants to waive the right to appeal their sentence or important legal rulings.

So given this, then if a defendant is charged with possession of an "assault rifle" violating 922 (g)(4), 932, and 922 (a)(6).

Per §2K2.1 "Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition" a defendant was found with a (I) semiautomatic firearm that is capable of accepting a large capacity magazine ("assault rifle"); defendant was a prohibited person at the time of the offense; defendant was also convicted under 18 U.S.C. § 922(d), § 932, § 933; or was convicted under 18 U.S.C. § 922(a)(6) and committed the offense with knowledge and intent then defendant shall be deemed a level 20. If there were more than three firearms then it moves up to level 22. Since most normal firearm owners buy several firearms this is not uncommon for a defendant to be found with several. So with a level 22,  the recommended time ranges from 41- 51 months. 

However, given the large breadth given to prosecutors and the trial penalty, if defendant wishes to advance their case and plan an appeal on the grounds of Bruen and Rahimi, then the federal prosecutor can recommend ten years or more during the penalty phase. Most defendants especially 922 (g)(4) nonviolent prohibited persons do not wish to serve that much time nor have a vested interest in overcoming a 922 (g)(4) conviction on constitutional grounds in the name of 2A advocacy. Thus defendants usually take a plea of probation or a year of time served and five years probation in exchange of waiving their trial rights and their right to appeal their conviction.
As a note once convicted, they now fall under 18 U.S.C. 922 (g)(1) too as they have been convicted in a federal court, of a felony, for which the judge could have imprisoned them for more than one year, even if they received a shorter sentence including probation (plea bargain). This further dissuades them from pursuing any challenges to their prohibited status. And thus the GCA prohibitors remain largely unchanged and unchallenged in part to this trial penalty scheme.

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