Faculty Works-in-Progress Seminar: Regina Austin "Moms, Morals, and Mitigation: A Primer on Sentencing Videos"

Friday, November 2, 2012 - 9:30am

436 Cohen Hall

Please join us as we discuss Penn Law Professor, Regina Austin's latest research in her working paper, "Moms, Morals, and Mitigation: A Primer on Sentencing Videos." Faculty respondents are Marie Gottschalk (Political Science) and Kathleen Brown (School of Nursing).


To receive a copy of the paper and reserve a lunch, please RSVP below.


Abstract of the paper:

“Moms, Morals, and Mitigation: A Primer on Sentencing Videos” considers the legal and ethical issues related to producing videos to support reductions in the sentences imposed on defendants based on social, biological and economic factors, particularly their family histories and the environments in which they were raised. Mitigation evidence is intended to raise the moral and normative issues that should be weighed against aggravating factors so that the punishment the defendant receives fits her/his crime. The inquiry is essentially one of how much blame for a defendant's crimes can be placed on factors beyond her or his control.

Mitigation arguments tend to turn defendants into victims of child abuse, sufferers of insurmountable mental and physical challenges, or paragons of familial devotion. Most often, the defendant's parents, particularly their mothers, are demonized and if still alive put on the spot to explain their offspring's antisocial behavior. Similarly, mothers of the children of defendants are expected to stand by the defendants and allow their children to be witnesses to the defendants' alleged substantial contributions to family life. What is a mother to do? The most important issues regarding mitigation concern family life, including the admission of images of the defendant as a child; the use the defendant's children as on camera informants not subject to cross-examination; disclosure of family secrets by parents and other persons privy to the defendant's upbringing; evidence of the defendant's sibling's service in the military; and disparities in the admission of evidence of foreign-born or bred defendants and native-born defendants.

Video is an excellent medium for telling mitigation stories because it can capture environments and human interaction, as well as take the trier of fact to the places beyond the courts' jurisdiction where witnesses reside. However, video is also accused of unfairly manipulating emotions and leaving the opposing sides in a criminal case unable to challenge the content for relevance and truth. Mitigation videos present opportunities for manipulation and exploitation of the family witnesses who appear in them, while their reception carries the biased readings full of the stereotyping of the mothers and other family members of criminal defendants. This paper nonetheless argues in favor of their admission.

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