The Legitimation Strategies of “Progressive” Prosecutors
| Author | Alexandra L Cox,Camila Gripp |
| DOI | http://doi.org/10.1177/09646639211060814 |
| Published date | 01 October 2022 |
| Date | 01 October 2022 |
| Subject Matter | Articles |
The Legitimation Strategies
of “Progressive”
Prosecutors
Alexandra L Cox
University of Essex, UK
Camila Gripp
The Justice Collaboratory, Yale Law School, USA
Abstract
This article focuses on the self-legitimation strategies of frontline prosecutors working in
a Northeastern city in the United States (“Belton”). The research took place in a self-
described “progressive”prosecutor’soffice in the midst of a legitimacy crisis that pro-
secutors faced across the country. The prosecutors in Belton spoke about their role and
practices in the face of this legitimacy crisis through a strategy of differentiation from
other criminal justice actors, aimed at establishing their purported positional and
moral superiority in enacting criminal justice practices, and through minimizing their
responsibility for the systemic harms that prosecutors more generally have been said
to perpetuate.
Keywords
Self-legitimacy, legitimation, prosecutors, mass incarceration, procedural justice
Introduction
The study of legitimation discourses and practices helps us to understand how those in
power “seek to cultivate and sustain an identity as morally valid authority figures”
(Tankebe, 2019: 100). This article contributes to the literature on self-legitimation by
Corresponding author:
Alexandra L Cox, University of Essex, Wivenhoe Park, Colchester, CO4 3SQ, UK.
Email: Alexandra.cox@essex.ac.uk
Article
Social & Legal Studies
2022, Vol. 31(5) 657–678
© The Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09646639211060814
journals.sagepub.com/home/sls
exploring how key actors in state criminal justice systems in the United States (US), pro-
secutors, speak about and justify their power.
Prosecutors have a central and determinative role in the criminal justice system—they
decide whether and how to accept police arrests and move them forward into criminal
cases. They also decide what crimes people will be charged with. And, because almost
all cases are resolved via plea bargaining, they determine the ultimate fate of most defen-
dants. Ironically, despite this tremendous power, prosecutors are typically not required to
explain or justify their decisions and, because of plea bargaining, their actions are almost
never subject to the processes of discovery and cross-examination that the legal system
has enshrined as its mechanisms of accountability. It is vitally important, therefore, to
shine light on how prosecutors understand their role and justify their exercise of power.
Our findings draw from in-depth interviews with prosecutors in an office that self-
identifies as “progressive.”Our interviews took place at a time when prosecutors
across the United States were being criticized in the media and amongst reform advocates
for their role in contributing to mass incarceration and racial disparities in the criminal
justice system. In this context, our data evidences how a group of frontline prosecutors
attempt to differentiate themselves from other criminal justice actors by highlighting
the virtuous nature of their work, and from other prosecutors around the country by
emphasizing their progressive leaning. Their rhetoric, as we will demonstrate, justifies
the very practices that have caused them to come under scrutiny: their considerable dis-
cretion, their use of subpoena power, and their monopoly over the plea-bargaining
process.
This research about prosecutors’views is part of a larger qualitative study, based on
in-depth interviews, about internal organizational legitimacy, self-legitimacy, and
emotion management amongst six different groups of frontline criminal justice
workers. In this article, we explore how one of these groups, prosecutors, discursively
justify their power and authority, and how their rhetoric is aimed at re-gaining or enhan-
cing public legitimacy in the face of a legitimacy crisis. Our findings are based on inter-
views with 31 prosecutors operating in a politically liberal, Northeastern U.S. city (which
we refer to by the pseudonym “Belton”), where some of their ongoing practices, includ-
ing their reliance on bail, their withholding of discovery materials, and the racially dis-
proportionate outcomes of their prosecutions were being challenged in the media and
by the public.
1
In our interviews, the prosecutors in Belton focused on two dimensions of their author-
ity: their responsibility to act in the interests of the community they represent, and their
power to exercise discretion over punishment. By doing so, our interviewees, attempting
to respond to claims that they engage in overly punitive, racist strategies, discursively
engaged in strategies of legitimation through differentiation. In this effort, they distin-
guished themselves from three other criminal justice agents, purportedly more deserving
of blame: (i) other prosecutors’offices that they deem to be more conservative; (ii) the
police, whom they feel they have been unfairly conflated with; and (iii) defense attorneys,
whom they describe as bound to their clients’best interests, while prosecutors are com-
mitted to “doing justice.”
Dovetailing with such rhetoric, the prosecutors engaged in seemingly contradictory
claims about justice and the public good. As our interviews have evidenced, although
658 Social & Legal Studies 31(5)
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