AuthorVardsveen, Trace C.

Introduction 1155 I. The Power of Prosecutorial Discretion 1159 A. The Legal Framework Governing Prosecutors' Charging Decisions 1160 B. The Prior Empirical Work on Prosecutors' Charging Decisions 1163 II. Shining a Light into the Black Box of Prosecutorial Discretion 1167 A. Process-Tracing as Means to Peer Inside Prosecutors' Decision-Making Processes 1167 B. A Proposal to Employ Process-Tracing to Examine Prosecutors' Charging Decisions 1176 III. Harnessing Process-Tracing to Increase Transparency, Legitimacy, and Trust 1180 A. Implications for Prosecutors 1180 B. Implications for the Public 1182 Conclusion 1184 INTRODUCTION

The American public's trust in legal authorities has declined precipitously in recent years, along with a slip in the perceived legitimacy of these authorities. Although this worrisome trend is most palpable in studies capturing public attitudes toward the police and courts, (1) prosecutors have found themselves increasingly thrust under the microscope of public and scholarly scrutiny as of late. Most notably, in addition to long-standing discussions about the nature and extent of prosecutorial misconduct, (2) there has been growing public and institutional debate over the effects of prosecutorial power on mass incarceration, (3) police accountability, (4) rampant racial disparities in criminal legal outcomes, (5) and poverty, (6) among other social plights plaguing the United States. As a result, prosecutors have faced mounting public pressure for greater accountability in their decision-making, raising the question of how best to go about that.

Studies on the police and courts provide insight into a possible solution. (7) This body of work has long shown that a key framework through which the public views legal authorities is the perceived fairness of their decision-making 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, at least in part, on evaluating the fairness of decision-making 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 accountability, legitimacy, and trust.

Indeed, a rapidly expanding cohort of so-called "progressive prosecutors" have attempted to take up this project recently by advocating for (8) or adopting (9) a medley of progressive-minded measures. While these reform efforts have focused primarily on tempering the punitive excesses and discriminatory impact lingering from the "tough-on-crime" era, (10) there have also been moderate efforts to increase transparency in prosecutors' decisions. For example, a handful of prominent prosecutors' offices across the U.S. have established online dashboards that make data on their policies, practices, and case dispositions publicly available. (11) But for reasons we discuss later in this Essay, these macro-level data on their own are inherently limited in answering important individual-level questions about how and why prosecutors make the decisions that they do. As such, they provide a restricted, albeit important, view of the larger picture of prosecutorial decision-making.

However, despite these reforms gaining traction in prosecutors' offices across the country, the issue of transparency in prosecutorial decision-making remains largely underexplored. Therefore, the current lack of transparency is an obstacle to enhancing accountability, legitimacy, and trust for prosecutors vis-a-vis the public. One major reason for this is the law itself, which grants broad discretionary power to prosecutors to carry out their duties while requiring minimal to no disclosure of the reasoning behind their decisions. Thus, the legal framework governing prosecutorial decision-making allows prosecutors to operate within what scholars have often described as a "black box." (12) Consequently, the processes driving prosecutors' decisions remain the least visible and most poorly understood among any actor in the criminal legal system, yet prosecutors' decisions are arguably the most important within this system.

Given the black box within which prosecutors currently operate, it is difficult to respond to public concerns about whether prosecutorial authority should be trusted, as well as to identify specific changes that should be made to prosecutorial policies and practices. Looking to the future of prosecution, what is needed is a clear understanding of how prosecutors actually make decisions at an individual level. As some scholars have astutely noted, "We need a way to crack open the 'black box' of prosecutorial discretion to understand how prosecutors make these life-changing decisions." (13) We fervently echo this call and endeavor to take up its challenge. In this Essay, we propose a way to crack open what we call the psychological black box of prosecutorial discretion to indirectly observe the mental processes operating when prosecutors are making legal decisions. In so doing, we focus on the "heart of the prosecutorial function:" (14) the charging decision.

To that end, this Essay proceeds in several parts. In Part I, we provide an overview of the legal framework that both grants prosecutors their immense discretionary power to make charging decisions and establishes the theoretical guardrails constraining that power. We then raise the question of whether prosecutors actually adhere to this normative legal framework and turn to the small but growing empirical literature on charging practices to help find an answer. Although extensive reviews of the normative and descriptive features of prosecutorial discretion in charging decisions can be found elsewhere in the literature, (15) discussion of these topics bear repeating to help contextualize and inform the empirical ideas we develop in subsequent parts of this Essay. (16)

In Part II, we describe the empirical methodology of "process-tracing." (17) In its most basic form, this methodology involves presenting decision-makers with various pieces of information and then assigning them the task of best using that information to make a specific decision. We argue that this methodology can be applied to prosecutors' charging decisions to ultimately reveal the various legally relevant and extra-legal factors influencing their decision-making at both conscious and unconscious levels--that is, it is a way to indirectly look inside the psychological black box of prosecutorial decision-making. In support of this claim, we outline an experimental process-tracing paradigm that combines an electronic case file management system and mouse-tracking software to map prosecutors' information search, acquisition, and use patterns across different types of criminal cases and under varying levels of discretion constraint when making charging decisions. (18)

In Part III, we discuss how the knowledge gained from this type of process-tracing approach can increase transparency in prosecutorial decision-making, and in turn, enhance accountability, legitimacy, and trust for prosecutors with respect to the public. We contend that processing-tracing reveals both conscious and unconscious influences on prosecutors' decision-making, which allows them to do several key things. First, it allows prosecutors to compare what factors 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 as important regarding prosecution. 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 public views about prosecution to reinforce accountability, legitimacy, and trust. And where that alignment is weak, prosecutors can identify the legal factors influencing their decisions to promote accountability, legitimacy, and trust. (19)

Ultimately, we contend that addressing public discontent with the criminal legal system in general and prosecutors in particular requires bold, innovative, and collaborative solutions from scholars, practitioners, policymakers, and community members alike. The future of prosecution rests on the ability to maintain, if not increase, accountability, legitimacy, and trust in the eyes of the public. The empirical project we propose in this Essay is just one strategy among a larger constellation of approaches, that when working in combination, could help improve prosecutorial decision-making to better achieve prosecutors' goals and those of the public. (20)


    Discretionary power--or the exercise of choice within the bounds of one's authority--is an integral feature of the American criminal legal system. Indeed, the daily operation of this vast legal complex relies heavily upon the discretionary decisions of a host of legal authorities, among which prosecutors arguably play an outsized role. (21) For this reason, scholars have long expressed concerns about the largely unconstrained and unreviewed discretionary power of prosecutors to make pivotal decisions throughout the lifespan of a criminal case, including the momentous choice to bring formal charges against an accused (22)--a choice that some scholars have characterized as the most important in all of the criminal legal system. (23)

    However, despite these concerns and the recent shift toward prosecutorial reform to quell them, there is a relative paucity of empirical research on prosecutors' decision-making processes. Consequently, we...

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