by Derek Gilna
Defendants who plead guilty on both the state and federal level generally are interviewed by the sentencing jurisdiction’s probation department, which seeks background information regarding the criminal history, family history, and health history of the defendant in order to assist the judge in determining an appropriate sentence.
An increasing number of defense counsel are utilizing sentencing mitigation videos to present their clients in a more sympathetic light in the hopes of receiving a lower sentence or a more favorable outcome in a civil action. Personal injury attorneys have long used such videos in an attempt to win plaintiffs big damage awards.
The New York Times describes sentencing mitigation videos as “empathetic biographical mini-documentaries.” They are made for an audience of one—the sentencing judge. Like with most things having to do with the criminal justice system, they don’t come cheap. On average, they cost $5,000 to $25,000 to make.
There are no firm rules either permitting or denying the right to use such videos, and that leaves it up to the judge to decide if one will be permitted. One of the pioneers in this developing area is Doug Passon, president and creative director of D Major Films, as well as a defense attorney.
According to Passon, lawyers must “rise to the challenge of making judges ‘suffer’” much like their clients are suffering, and it appears that the videos are working. Passon claims that “sentences are almost always better than they would otherwise be,” when these videos are used.
Having seen the success of the videos with his own clients, Passon has a passion for teaching other lawyers how to create effective videos for their clients. He has been holding The Sentencing and Post-Conviction Film Festival at the annual training conference for federal public defenders for nearly a decade.
His passion for sentencing mitigation videos is clear. In The New York Times op-doc titled “No Jail Time: The Movie,” he states: “These folks are like me, this could be my own son, this could be my own daughter, this could be myself. And so our job is not to go for sympathy—oh, they’ve had such a hard life, poor me—that never gets us anywhere. Our job is to go for empathy.”
He goes on to observe, “There have been hundreds and hundreds of people who’ve been convicted in court beyond a reasonable doubt, and it’s come out that it’s not true—they’re innocent. These are human beings, so they deserve a little bit more consideration than a sentencing chart pulled out of someone’s ass.”
Sources: https://abovethelaw.com, www.nytimes.com
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