How 'Black Lives Matter' and Falling Crime Are Rewriting the Rules for Legal Dramas (Guest Column)
A former New York assistant district attorney argues that with falling crime rates and a growing cultural conversation around social and racial equality, TV stories "ripped from the headlines" increasingly will reveal the flaws in our criminal justice system.
Leaves are falling, pumpkin-flavored everything is on the market, and favorite TV shows are returning for new seasons: zombies on The Walking Dead and law students getting away with murder. As always, this year’s new slate of premieres focus heavily on crime and police. But those expecting the same old tough-on-crime procedurals are in for a surprise. Americans’ attitudes toward criminal justice have changed dramatically — and so have Hollywood’s.
When Law & Order took to the airwaves 26 years ago, it resonated with viewers because it reflected its time. In 1990, there were 2,245 homicides in New York City and citizens of Gotham lived in perpetual fear of crime. The series’ famous opening narration captured that sentiment:
In the criminal justice system, the people are represented by two separate yet equally important groups: the police who investigate crime, and the district attorneys who prosecute the offenders. These are their stories.
Twelve million viewers watched the show’s first season to see New York’s toughest cops and district attorneys investigate and prosecute some of the Big Apple’s worst fictional criminals. But one of this year’s most talked-about new shows takes a different angle. What happens when law enforcement pins the crime on the wrong guy?
ABC’s Conviction, premiering Monday night, focuses on a newly created Conviction Integrity Unit in New York City. The network undoubtedly is hoping the show will resonate with a public that’s increasingly aware of the myriad faults in the criminal justice system, especially on the heels of programs like the Serial podcast, Netflix’s Making a Murderer, and this past summer’s eight-episode run of HBO’s The Night Of, in which “the system didn't work so much as it was so broken that it ended up circling back around to justice,” THR critic Daniel Fienberg wrote.
This newfound awareness of the criminal justice system’s flaws, coupled with dramatic drops in crime rates, has opened the door to more rational, nuanced thinking and a willingness to acknowledge mistakes of the past. Today, dozens of district attorney’s offices have set up conviction integrity units devoted to reviewing cases where there is an allegation of actual innocence. Remarkably, more than 1,700 people nationwide have been exonerated of crimes since the late 1980s. Today, about three exonerations occur each week.
Since ABC is the network of Shondaland, Conviction will add some dramatic flair as it delves into the potentially botched investigations. The show’s female lead, an attorney who happens to be the daughter of a former U.S. president, is blackmailed to head up the new unit. But despite the strange plot device (why would someone have to be blackmailed into heading up such a unit?), the show will examine real problems with the criminal justice system.
For one, it will likely shed light on the fact that more than 95 percent of state and federal criminal prosecutions are resolved by plea bargain. Why does this matter? Because defendants have an incentive to plead guilty to crimes they may not have committed if the concrete punishment in the bargain is less severe than the potential punishment that comes along with a trial in front of one’s peers.
Despite television viewers’ almost limitless capacity to binge-watch dramas about crime and justice, it seems unthinkable that a primetime television show about overturning convictions would have had much of a following in the 1990s. If Conviction proves successful, it may just inspire a generation of attorneys and investigators to focus on injustices in the system, just as Law & Order inspired many people to apply to law school or join the police force.
Conviction isn’t the only new show drawing its topic from the news. A soon-to-air Fox series was inspired by tensions between police and the people they serve. Shots Fired will focus on racially charged shootings in a southern town. A casting call looking for extras says material “will deal with the heavy subject of escalating racial tensions in the United States, police shootings, and the incidents that created the ‘Black Lives Matter’ movement.”
And in another sign of the times, this fall HBO rolled out a half-hour comedy series called High Maintenance that centers on a Brooklyn marijuana dealer who connects seemingly unrelated New Yorkers as their collective pot dealer. Currently, 25 states and the District of Columbia have laws legalizing marijuana in some form — in November voters in five more states (including California) will decide whether to legalize fully; in four others they’ll vote on allowing medical marijuana.
Networks are also unleashing a slew of other legal shows this fall that have less of a public policy bent. ABC’s Notorious, which premiered Sept. 22, focuses on a defense attorney and a TV producer who join forces to manipulate the media and the criminal justice system. The show is based on the relationship between infamous criminal defense attorney Mark Geragos (who represented Michael Jackson and Winona Ryder, among others) and Larry King Live producer Wendy Walker. And later this fall, CBS will air Doubt, a show about a successful defense lawyer at a small law firm who falls in love with one of her clients — who, it turns out, may be guilty of a vicious crime.
Although it is doubtful that Conviction or Shots Fired will generate the almost cult-like fan base of the Law & Order franchise, these new shows also “ripped from the headlines” will hopefully spur viewers to think about the criminal justice system in new ways. As a former prosecutor, I — along with my fellow district attorneys — was inspired by shows like Law & Order. Walking to court, we often mimicked the “dun dun” sound between the show’s scenes. Perhaps this fall, newly minted prosecutors will aim to work in conviction integrity units, or at the very least, will look at their cases in a new light — one more open to the possibility of innocence.
Eisen is senior counsel in the Justice Program at the Brennan Center for Justice and former assistant district attorney in New York City.