Thirty-five years after they first captured the nation’s attention, the Menendez brothers are back in the spotlight. This year saw the release of both a new Netflix drama series and a documentary revisiting the brothers’ conviction for the 1989 murders of their parents, for which they were sentenced to life in prison without parole.
The documentary highlights the brothers’ claims of abuse, rape and torture they endured from their parents when they were young children. This renewed focus on their trauma has led them to request clemency, a move supported by advocates including Kim Kardashian and exiting Los Angeles County Dist. Atty. George Gascón. On Monday they made their first court appearance in a bid for their release.
The case more broadly shows the need to reconsider how the justice system addresses childhood trauma, especially given that courts are beginning to recognize the prolonged development of the brain into young adulthood and the impact of trauma on behavior. This perspective should be considered by the next L.A. County district attorney, Nathan Hochman, as he evaluates the brothers’ clemency plea.
Decades ago, I got my start as a lawyer representing children and adolescents in New York City, advocating for their rights and fair treatment in cases involving abuse, neglect, education rights, juvenile delinquency and status offenses such as truancy. By and large, the children in my cases were seen by society and the legal system as if there was something intrinsically wrong with them. They were viewed as bad seeds who would never amount to anything — incorrigible, wayward, possibly even evil. Their cases were too often considered in a vacuum. Seldom did the legal system consider the crucible of factors that can make a child capable of violent crime: barely there parents, abuse, drugs.
There is a reason my field frequently refers to the “revolving doors of family court.” Often the very same children who come into the system as abused and neglected leave as respondents in a juvenile delinquency case or as persons in need of supervision.
But there is room for greater empathy in the law, backed by support for trauma-informed judicial sentencing from our nation’s highest court. Over the last quarter-century, the Supreme Court started recognizing brain development in sentencing. In 2005, Roper vs. Simmons abolished the death penalty for minors, recognizing the underdeveloped brain and sense of responsibility in juveniles. In 2010, Graham vs. Florida prohibited life without parole for non-homicide juvenile cases, emphasizing the potential for young people to reform their behavior. The 2012 ruling in Miller vs. Alabama, alongside Montgomery vs. Louisiana in 2016, banned mandatory life without parole for juvenile homicide cases.
Many state courts have followed the Supreme Court and acknowledged that adolescent brains are still developing until the age of 26 years old, especially in decision-making and impulse control. Additionally, recent neuroscience confirms that brains can be physically altered by trauma. These insights are crucial for understanding cases such as the Menendez brothers’, in which prolonged abuse would likely have affected their behavior.
The district attorney’s support for the brothers’ clemency request is welcome in this high-profile case. But the trauma-informed justice standard deserves to be applied beyond the Menendez brothers. We cannot overlook the reality that most of those embroiled in the juvenile justice system are poor and a disproportionate number are Black, Latino or Native American, reflecting institutional racism, systemic inequities and other issues. On top of the harsh sentencing many juveniles receive, it’s rare that those who are already incarcerated get adequate mental health support to support rehabilitation, reduce recidivism and promote healing.
So how do we build a trauma-informed justice system that applies to everyone? First and foremost, we need to make mental health services part of incarceration or juvenile detention. Legislators should pass laws requiring trauma-informed mental health services for incarcerated youth, who currently are likely to receive abysmal services if any.
Second, we should educate the bench and the bar. Judges and lawyers need training on brain science and trauma to make informed decisions in juvenile cases. We need them to understand that the brain is still developing all the way into a person’s mid-20s, and a traumatized brain is especially complicated.
Third, we need to do a better job across society of recognizing the links between childhood trauma and brain science. To punish and incarcerate these children and not offer psychological help is doubly cruel. We need to raise public awareness and increase empathy on this issue.
New York is making strides in embracing trauma-informed justice with the Domestic Violence Survivors Justice Act, which allows abused survivors who kill or harm their abusers in self-defense to have the entirety of their circumstances taken into account during sentencing. It’s a step in the right direction. But there isn’t a corollary for child abuse cases. If the Menendez brothers’ crime happened today, even in New York, there would be no guarantee that a history of abuse and trauma would be factored into their sentencing.
The brothers’ case is heartbreaking for many reasons, but perhaps most powerfully, the evidence suggests they were abused by people they loved and trusted — their own parents. Their story may be unique, but the trauma and violence they say they experienced unfortunately isn’t.
We cannot expect a safer, more just society if we overly penalize and vilify our youngest members before they even have mature brains. In the juvenile delinquency realm, using a compassionate, science-based framework that factors age and trauma into sentencing would reflect the justice system’s commitment to fairness and humanity.
Melissa Breger is a professor at Albany Law School.
