Sentencing mitigation videos or sentencing courtroom videos are a form of documentary that is filmed by the defendant’s attorneys. In these videos, individuals who know the defendant provide words of support or praise the defendant’s characteristics. This legal measure originated from the landmark Supreme Court case United States v. Booker, which essentially mandated that federal judges need to complement the sentencing by incorporating a wider range of evidence. It also declared that the inability to use forms of “reasonable evidence” is a violation of the Sixth Amendment’s right of jury trial. Since this decision, attorneys -- particularly defense attorneys -- have exploited these videos as a legal leverage to ease minimum sentencing for felonies.
While debates over the ethical and lawful legitimacy of using such techniques have remained heated for more than ten years, it is likely the general public has never even heard about this topic. That is, however, until an exposé was published in The New York Times back in December 2017. In the exposé, which is accompanied by a video from a lawyers conference in New Orleans, one of the leading lawyer-directors, Doug Passon, bragged about himself mitigating the sentencing of a kidnapping case after using the technique. In the video, Passon received a round of applause after he said his video technique led to the defendant being sentenced for only three months. Kidnapping, by U.S. federal law, is still a felony with a statutory minimum of 20 or more years.
Passon’s client Joseph DeRusse, a then undiagnosed and mentally unstable man, kidnapped his ex-girlfriend from Austin to Wichita by threatening her with a fake pistol. DeRusse claimed he was trying to rekindle their relationship. The video showed DeRusse with a friendly smile from pictures he had taken. It also showed DeRusse’s friends and family sobbing in disbelief that he would commit such malice. Tears and empathy appeared to be the tools that touched the judge so that they would lessen the sentence of the defendant.
At the conference, Passon showed another video of a different court case, where the defendant was presented as a devout Christian who had to commit armed robberies because he lacked money while his wife was in the hospital from kidney failure. The appearing defendant also received a mitigated sentence. Attendees of the conference called the videos in both cases “as real as it gets.”
It is important to ask whether this is a suitable way of sympathizing with criminals. Passon, for instance, calls these videos “the emotional truth.” However, as emotional as appeals often are, the videos are often hyperbolic and misleading. Passon entrenched the persuasiveness of such videos as a selling point, with his personal website’s logo being the combination between a film camera and a gavel. On the website, Passon shows several cases of his mixture of the emotional truth and the legitimate truth. For example, when presenting a 79-year-old who was caught up in a sting operation of underage sex with minors, Passon accompanies his story with sad music and recorded phone calls from catfishing officers.
So, should pitying be brought into the courtroom? University of Pennsylvania Law expert Regina Austin argues against the impact of these videos. In 2010, Austin wrote a paper on videos promoting the perspective of the victim, known as “victim impact videos.” In this paper, she states that victim impact videos are problematic because the irrational narration, sad background music and fulfillment of obligation to recall the tragedy make cases difficult for the defendant to argue against. Austin argues a similar case against sentencing mitigation videos, because their perspective of narration comes from hearsay, which is deemed second hand evidence in the American judicial system. There is also the additional issue of the prosecutor’s ability to gain access to the video before it is presented to the courtroom to avoid backroom deals.
It will be difficult to determine the effects of these sentencing mitigation videos, but the fact that a 20+ year felony can be reduced into a three-month sentencing is disconcerting. While the essence of all biographical documentaries is to amplify parts of a person’s character with emotional appeal, using this technique presents a challenge over the fairness of judicial decisions.
Aristotle once said that “The law is reason, free from passion.” Intentionally eliciting emotional elements as a tool to persuade, no matter if it’s on the side of the plaintiff or defendant, is nefariously outreaching the solemnity of justice. If even the most redeemed, principled, and reason-based system in this country is encroached by feelings similar to a reality television show, then the verdict of criminal cases will be decided by the more persuasive storytellers.
Photo retrieved from City of Bel-Ridge Municipal Court Website