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December 10, 2017

Fascinating look at sentencing mitigation videos (and advocacy film festival)

The New York Times has this great new "op-doc" by Lance Oppenheim on the topic of sentencing mitigation videos under the headline "No Jail Time: The Movie." All sentencing fans will want to take the full 10 minutes to check out the video that is the heart of this op-doc (e,g., two-thirds in is an interesting reference to "the real America"). Here is part of the text that the filmmaker has with the video:

When my parents went to law school in the 1980s, they took courses on contracts, torts, criminal law, constitutional law — the list goes on. While there were lessons on persuasion, to be sure, they never took a class on how to tell a story. And they certainly never learned how to make a film.

Today, however, a growing number of lawyers are creating empathetic biographical mini-documentaries, or “sentencing videos,” to reduce their clients’ prison sentences. Inspired by the storytelling techniques of traditional documentary film, some lawyers team up with independent filmmakers while others become filmmakers themselves. These films are made for an audience of one: the presiding judge.

While videos have historically been permitted in the courtroom, this phenomenon took off in 2005, when the Supreme Court, in United States v. Booker, allowed trial courts to consider an offender’s “personal history and characteristics.” Before Booker, judges were bound by sentencing guidelines and were generally restricted in looking past a defendant’s crime and criminal record.

In sentencing videos, lawyers try to portray their clients in a positive light, notwithstanding the nature of the crime of which they were found guilty. These short videos, which can cost $5,000 to $25,000 to make, can be extremely effective, sometimes substantially decreasing sentences, including those involving the death penalty.

I immersed myself in this phenomenon at the The Sentencing and Post-Conviction Film Festival, held in New Orleans in June at an annual training conference for federal public defenders. The event is organized by Doug Passon, an attorney, filmmaker, attorney-filmmaker, and sentencing video expert.

Mr. Passon, who took film classes after law school and now runs a joint law firm and video production company in Scottsdale, Ariz., treats sentencing videos in an artful manner nearly indistinguishable from narrative-driven, fictional films. He has narrowed his focus to how sentencing videos can sway a judge’s decision. Having seen results from his own clients’ films, he’s determined to teach other lawyers how to create powerful stories.

In a drab hotel conference room filled with beleaguered lawyers, Mr. Passon offers a model: “Make judges suffer.” Not only should judges “agonize over the proper sentence in each case,” Mr. Passon said, they must also “truly feel the client’s pain as they do so.”

In photography and film, there’s an elusive color tone halfway between black and white called middle gray. Just like the phenomenon of middle gray, sentencing videos exist in an in-between space where legal conceptions of fact and fiction, right and wrong, become amorphous. Even though the videos are grounded in truth, their ability to play with judges’ emotions challenge the courtroom’s conception of “truth, the whole truth, and nothing but the truth.” What I discovered from looking at the growing practice of sentencing videos was far more complicated than I ever imagined.

In the aftermath of making this film, and as a filmmaker myself, I have continued to ask myself whether all documentaries are like sentencing videos. Facts presented in a subjective manner, with footage altered or deleted to serve the filmmaker’s message and elicit a particular emotion from an audience. In the case of sentencing mitigation films, we know the judge will be the final arbiter. For all other documentaries, though, the court of public opinion will need to decide what is, in fact, “true.”

A few prior related posts about sentencing videos:

December 10, 2017 at 04:05 PM | Permalink


These false mitigation propaganda films should not be allowed without a movie about the crime victims experience of the crime, its aftermath, its effect on the family, and on the property values of owners in the surrounding neighborhood. There should also be films depicting the gangbanger threatening, and then bragging about the crime on social media.

In statute, it should be reversible error in the Rules of Evidence to show without the other.

Posted by: David Behar | Dec 10, 2017 4:22:02 PM

Then make the judge and jury suffer, as this lawyer filth says. Show them the crime scene photos, and the autopsy recording. This post is disgusting. Any judge allowing this film should be removed from the bench, during the trial.

Posted by: David Behar | Dec 10, 2017 4:43:39 PM

I have seen these in federal court sentencings as a federal probation officer and can attest to their effectiveness. As US Probation Officers, we work for the Judge, we are neutral and tasked with presenting all of the information about the defendant in the PSR. We include bad things, eg. the offense and impact on the victims, along with the good things, he was an eagle scout or has a college degree or a family to support. Sentencing should be difficult for Judges and Judges will tell you, sentencings are probably the most difficult part of their job. AUSA's have an opportunity to speak to the seriousness of the crime, the impact of the victims and as you probably know, victims are permitted to speak at sentencing, or include a victim impact statement for the Court. The Judge needs to see everything, the good, the bad, and the ugly, and defense attorneys are simply doing their job - and quite well I may add.

Posted by: atomicfrog | Dec 11, 2017 7:57:33 AM

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