ELEVATING TRUST IN PROSECUTORS: ENHANCING LEGITIMACY BY INCREASING TRANSPARENCY USING A PROCESS-TRACING APPROACH

Abstract

The public's trust in legal authorities has declined precipitously in recent years, along with a slip in the perceived legitimacy of these authorities. Prosecutors are no exception. Amidst growing debate about their contributions to social His like mass incarceration, prosecutors have faced mounting pressure for greater accountability in their decision-making. Studies onthepolice and courts provide insightinto apossible solution. This body Of work has long shown that a critical framework through which the public views legal authorities is the perceived fairness of their decisionmaking processes, including the provision of explanations these authorities provide for their legal decisions. Thus, accountability, legitimacy, and trust in the eyes of the public rests, in part, on evaluating the fairness of decisionmaking processes, which itself requires the ability to distinguish between legal authorities' use of what the law and the public consider appropriate and inappropriate criteria when making legal decisions. Such evaluations can only occur when the factors that shape these decisions are known. Therefore, transparency in legal authorities' decision-making is core to the project of maintaining and building legitimacy and trust. However, as scholars have observed, prosecutorial decision-making largely occurs within a black box, rendering prosecutors' lack of transparency an obstacle to accountability, and in turn, legitimacy, and trust. In this Essay, we argue that an empirical methodology called "processtracing" can peer inside the black box of prosecutorial decision-making to help identify the factors that shape prosecutors' legal decisions, thus increasing transparency in their decision-making overall. As such, this methodology is helpful in several ways. First, it allows prosecutors to compare whatfactors actually drive their charging decisions to a normative legal framework so that they can adjust their behavior to better adhere to such standards. Second, it enables prosecutors to compare those factors with what the public considers to be important regarding prosecution. And third, it supplies prosecutors with a data-driven way to explain the reasoning behind their decisions to the public. Thus, prosecutors can highlight where their decision-making aligns with the public's views of prosecution to reinforce accountability, legitimacy, and trust. Where alignment with the public is weak, prosecutors can identify the legal factors influencing their decisions to promote accountability, legitimacy, and trust. Looking to the future of prosecution, a process-tracing approach provides a basis for a more nuanced, data-driven way to address prosecutorial reform - that is, reform grounded in the idea of building authentic trust between the public and legal authorities like prosecutors.