The Menendez case: rethinking justice through trauma and adolescent development

I still remember where I was when Jose and Kitty Menendez were murdered. It was the summer of 1989, and I was consulting at a big cable channel in Universal City. My co-workers programmed movies and licensed them from dozens of buyers - including LIVE Entertainment, where Jose Menendez was president. So, when the news came, it was not, "Did you hear about the murder in Beverly Hills?" It was, "Did you hear what happened to Jose and Kitty?"  I remember it feeling very close. I also remember - quoting Joan Didion in another context - no one seemed surprised.

No one seemed surprised, because in 1989, we had already made up our minds about why such murders happen. Morally, the world was spinning out of control. The Central Park Five had been arrested and everyone knew they were guilty (they were innocent). Bernhard Goetz was a New York folk hero for shooting Black kids on the subway. A few years later, John DiIulio would write "The Coming of the Super-Predators," coining a term that gave America permission to treat children who committed crimes like animals. It was the beginning of a decades-long moral panic, during which California locked up tens of thousands of children in adult prisons.

To accomplish this feat, California - particularly Los Angeles - had to adopt a willful blindness to the suffering of children and youth. Lyle and Eric Menendez became a convenient target for this blindness; not just because of the violence of their crime, but because of who they were. Even in the 1990s, it was obvious that poverty, racism and a non-existent social safety net were major influences on violent crime. None of these applied to the Menendez brothers - they were just spoiled, wealthy brats. Also, according to the law at that time, they were adults - not juveniles, not youths, but the fully mature agents of their own fate. The law allowed no mercy, and nobody was prepared to give any.

Then Leslie Abramson, Erik's devoted and resourceful defense attorney, broke the allegation that Erik had been sexually abused by his father.

I remember talking to people about Erik's allegations. I heard two reactions. The first reaction was wide-eyed disbelief. It couldn't be true! Why didn't he say something sooner, instead of after he was charged with murder? Also, it just didn't make sense. Sexual abuse didn't happen in the home; it happened at scary places like the McMartin Preschool. The family was a place of sanctuary and moral clarity.

The second reaction was a moralistic shake of the head. "Well, even it's true - that's no excuse."

The "abuse excuse"

"That's no excuse." It should be written on the gravestone of the 1990s. The idea of "no excuse" had been percolating in Los Angeles since UCLA professor James Q. Wilson's 1975 book, "Thinking About Crime." "Wicked people exist," wrote Wilson. "Nothing avails except to set them apart from innocent people." The 1960s and its tiresome, complicated attempt to understand the psychosocial roots of crime were whittled back to an easy bromide: "Wicked people exist." They didn't need help; they needed severe punishment, and they needed to be separated from innocent people.

Soon, a cottage industry emerged, decrying an imaginary national trend that had of course begun during the Civil Rights era. We were coddling people who refused to take responsibility for their own lack of self-control. We were especially coddling children, letting them run wild to do more and more terrible things, rather than infusing them with traditional values - by force, if necessary. The cottage industry even had a handbook written by Alan Dershowitz, with the mellifluous title, "The Abuse Excuse: and Other Cop-Outs, Sob Stories and Evasions of Responsibility."

"The Abuse Excuse" devotes several pages to the Menendez case, offering a more nuanced analysis than its sensational title might suggest. But Dershowitz ignored an important reality of California law at that time. Because Erik and Lyle were over 18, if they were convicted of murder, they could receive one of two sentences: death, or life without the possibility of parole. Either way, they would die in prison.

Put differently, the law allowed for an excuse, but not an explanation. Explanations were out of fashion in the 1990s - not just for the public, but for judges. In a series of laws and initiatives, starting with the Determinate Sentencing Act of 1976, California systematically took away judges' power to make decisions about sentencing. The law was widely popular. Both liberals and conservatives thought judges had too much discretion, and the result was wildly disparate sentences for "identical" crimes - though as we have learned in California, no crimes are identical.

Before 1976,  Abramson might have focused her defense on reducing her 18-year-old client's sentence. But by 1994, that strategy would have been useless. Nothing Abramson could say in the penalty phase would have any effect on Erik's sentence. He had to plead self-defense or die in prison.

The law of explanation

Today, the law is different. As DA Nathan Hochman acknowledges, starting in 2012, California judges won back some of the sentencing discretion they lost in the 1970s. None of that reform has come easy. For years, the Legislature resisted changing the laws that created mass incarceration in California. It took a federal lawsuit to break the logjam. In 2011, a three-judge panel in Brown v. Plata ordered California to dramatically reduce the population of its overcrowded prisons. Reform followed soon after, and it has continued ever since.

But the lawsuit was only half the story. By 2012, California was culturally ready for reform. We were a different state: more diverse and accepting of diversity. We had lost our overweening moral certainty about crime and its causes. The Central Park Five had been exonerated in 2002. Barack Obama was elected in 2008. In 2012, we witnessed the racialized murder of Trayvon Martin in Florida. Maybe we - the "innocent" people who needed protection from the wicked - weren't as innocent as we thought.

Just as important, we were once again open to explanation. One important explanation was functional magnetic resonance imaging, or fMRI. Starting in the 1990s, scientists were able to image the developing human brain, especially the adolescent brain. These images - often in startling color - showed how the brain of a teenager or young adult processed information. Or, more accurately, did not process it. As the psychologist Laurence Steinberg pointed out in his seminal article, "Less Guilty by Reason of Adolescence," a teenager's cognitive and psychosocial development is dramatically different from a fully mature adult's development - which most psychologists now agree is not complete until around age 25.

Imagine if these scientific findings had been available in 1994. Erik and Lyle Menendez might still have pleaded the excuse of self-defense, but they could also have used the explanation of mitigation. They could have talked about the terrible, helpless rage they experienced because of their sexual abuse. They could have described their hypervigilance - a common symptom of childhood trauma - that made their emotional reactions violent and incoherent. Their attorney could have produced evidence that, at ages 18 and 21, their brains were far from fully developed, and, because of the trauma they experienced, even less developed than other youths their age. Would any of this have proved their innocence? Absolutely not. But it might have kept them from dying in prison.

Today, judges are not only allowed to consider these characteristics of adolescence; they are required to do so. A judge must give weight to whether the defendant is a "youth" - which means the defendant was under age 25. The judge must consider a defendant's "psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence." Also, a judge can resentence a youth who was originally sentenced under the old rules, taking those factors into consideration. All it takes is a request from the District Attorney or the Secretary of Corrections, or - in a few cases - the decision of the judge herself to take a second look at the defendant's sentence.

Protecting the guilty from the innocent

We are still uncomfortable with explanations. We prefer simple emotions. We want to feel Erik and Lyle Menendez are either impossibly evil or terribly wronged. We wonder if they are lying or shading the truth to gain their release. We think, what if they're just remorseless psychopaths, and all their good behavior in prison, their education, their compassion for fellow inmates, their work in addiction and therapy groups, is just a mask for two now-middle-aged men who have never lost their taste for killing? What if wicked people simply exist?

The response to this longing for certainty is deeply unsatisfying. Erik and Lyle Menendez committed an appalling double murder, but they are not evil. They are not lying about their sexual and physical abuse, but they probably knew it was a weak argument for self-defense. They knew what they were doing when they shot their parents to death, but "knowing" is different for adolescents. Because of their brains, causation becomes tangled. Moral values are completely upended. They do things in pairs or groups that they would never, ever do alone.

Fortunately, the law doesn't have to honor our desire for black and white solutions. For their resentencing, Erik and Lyle Menendez can present mitigating evidence in a place where it belongs: a mitigation hearing. They can also present the truth of who they are today - not horribly traumatized teenagers who committed a terrible act, but men in their 50s who hope to prove to the California Board of Parole Hearings that they deserve to be released. They can also talk about their remorse. And, make no mistake, once Erik and Lyle woke from the dark dream of adolescence, they confronted the awful reality of what they did, every night of their 30-plus years in prison.

During my 13 years as the director of the Juvenile Innocence & Fair Sentencing Clinic at Loyola Law School, my students and I have represented hundreds of youth offenders - at resentencing hearings, parole hearings, and juvenile transfer hearings. Nearly all my clients killed or tried to kill another person and served years in adult prisons for their acts. But today, nearly 150 of those former children are out of prison, and with almost no exceptions, they are giving back to the community as drug counselors, community reentry specialists, and gang intervention experts. Their time in prison gives them a credibility that speaks to system-involved children, and they have helped thousands of children who might have taken their path to prison. Erik and Lyle have said that is the route they plan to take, and I believe them. They should be allowed to make their case for freedom to the Board of Parole Hearings.

We now have the explanation from Erik and Lyle Menendez that we couldn't hear in 1994. We have heard the truth about why violent crimes occur, not just from these two youths, but from thousands of others who experienced sexual and physical abuse and then vented their rage and despair on other human beings. We should listen to these explanations and give them the weight they deserve, not only in the courtroom but in our hearts.