Measuring the Consequences of Criminal Jury Trial Protections

The Sixth and Fourteenth Amendments to the U.S. Constitution guarantee criminal defendants the right to a jury trial and require that the elements of crimes be proved beyond a reasonable doubt. Academics, judges, and practitioners generally assume that these constitutional guarantees protect defendants. Recently, however, scholars and even members of the Supreme Court have suggested that expanding jury trial rights may actually work to the detriment of defendants given the existing rules and structure of the criminal justice system. Others have argued that procedural protections such as jury trial options and higher standards of proof are irrelevant in light of significant prosecutorial resources and discretion. In this paper, I seek to measure the consequences of expanding criminal jury trial rights. To do so, I study the Supreme Court’s landmark criminal procedure decision in Apprendi v. New Jersey (2000), which held that a jury—not a judge—must decide beyond a reasonable doubt any fact that causes the penalty for a crime to exceed a prescribed statutory maximum. I use the limited reach of the Apprendi decision and the calculations required by the United States Sentencing Guidelines to create groups of offenders who were differentially affected by Apprendi ’s expansion of jury rights but who were otherwise comparable. By comparing the change in sentence length of these groups preand post-Apprendi, I am able to identify and measure the effect of the broader jury trial rights (including the higher standard of proof) mandated by that case. I find that this expansion in jury trial rights substantially benefited criminal offenders, reducing the average sentence for those most affected by more than 5%. ∗Preliminary and incomplete; do not cite without permission. Comments are very welcome. Many thanks to Jennifer Arlen, David Autor, Omri Ben-Shahar, Doug Berman, Stephanos Bibas, David Bitkower, Eve Brensike, Steve Clymer, Michael Greenstone, Toby Heytens, Bert Huang, Howell Jackson, Christine Jolls, Nancy King, Louis Kaplow, Melissa Kearney, Vic Khanna, Rick Lempert, Justin Levitt, Leigh Linden, Tom Miles, Marc Miller, Mark Ramseyer, Steve Shavell, Bill Stuntz, Albert Yoon, Kathy Zeiler, and workshop participants at many welcoming schools and institutions. I gratefully acknowledge financial support from the John M. Olin Centers at the University of Michigan Law School and Harvard Law School. All errors are mine.