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A New ‘Disturbing Reality’ in Criminal Court

Sep 18, 2018 | 831 videos
Video by Lance Oppenheim

Narrative is one of mankind’s sharpest tools. Doug Passon, a defense attorney-turned-filmmaker, knows this better than most. In the courtroom, he harnesses the power of storytelling to create sentencing mitigation videos. These are emotionally rousing documentaries designed to appeal to a judge’s sense of empathy and humanize Passon’s clients. These biographical short films have one express purpose: to motivate the judge to deliver a reduced prison sentence.

Lance Oppenheim’s short documentary, No Jail Time: The Movie, profiles Passon and his controversial practice in all its variegated shades of gray. In the process, the film offers a meta-analysis of objectivity in the realm of narrative nonfiction. “Passon treats sentencing videos in an artful manner nearly indistinguishable from narrative-driven, fictional films,” Oppenheim recently told The Atlantic. According to Oppenheim, defense attorneys and sentencing video makers are increasingly drawing inspiration from true-crime entertainment, such as The Jinx and The Thin Blue Line, “to bend the rules of reality in the courtroom with visual storytelling.”

“I would argue that the whole genre of nonfiction filmmaking has largely been rooted in assembling and constructing the messier parts of reality into exciting ‘truths,’” Oppenheim continued, “and seeing this very practice take shape in the courtroom was fascinating to me.”

While videos have historically been permitted in the courtroom, the phenomenon of sentencing mitigation videos became prevalent in 2005, when the Supreme Court ruled to “relax evidentiary standards,” as Oppenheim said. The United States v. Booker decision allowed courts to legally consider an offender’s “personal history and characteristics” in sentencing. Before the ruling, a judge’s access to information about a defendant’s past and criminal record was generally restricted. Today, jurors are given the ability to accept or reject the presentation of a sentencing mitigation video at their discretion, according to Oppenheim, who believes that the democratization of media-making will cause the practice to become more commonplace.

“In photography and film,” Oppenheim said, “there’s an elusive color tone that exists halfway between black and white, called middle gray. Just like the phenomenon of middle gray, I would argue that sentencing videos exist in an in-between space where legal conceptions of fact and fiction and right and wrong become amorphous.”

Many scholars argue that storytelling—our ability to invent fictions, and to collectively believe in them—is what ultimately distinguishes Homo sapiens from chimpanzees. For Oppenheim, making No Jail Time and following Passon’s success in the courtroom revealed the power of narrative. “I saw how effective [mitigation videos] are at illustrating a disturbing reality—one in which the power of a cinematic portrayal can alter one’s life.”

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Author: Emily Buder

About This Series

A showcase of cinematic short documentary films, curated by The Atlantic.