The Role of Trauma and Mitigation in Capital Punishment

In the ear­ly 1990s, the case of Erik and Lyle Menendez cap­ti­vat­ed the American pub­lic, not only because of the bru­tal­i­ty of their crime but also because of the defense they pre­sent­ed. The broth­ers, age 18 and 21 at the time of the crime, were charged with first-degree mur­der with spe­cial cir­cum­stances for killing their par­ents, Jose and Kitty Menendez. These spe­cial cir­cum­stances made the crime a death-eli­gi­ble offense. Prosecutors alleged they were priv­i­leged young men act­ing out of greed, but defense coun­sel pre­sent­ed a very dif­fer­ent sto­ry, intro­duc­ing evi­dence of sus­tained abuse, includ­ing phys­i­cal, psy­cho­log­i­cal, and sex­u­al abuse by their father start­ing when they were very young. The broth­ers argued that years of abuse left them in a state of con­stant fear and con­fu­sion, lead­ing them to a break­ing point and result­ing in their par­ents’ deaths. Family mem­bers tes­ti­fied to the abuse that they wit­nessed and recount­ed sto­ries that the broth­ers had told them as chil­dren dur­ing the first of two tri­als. Ultimately, after a mis­tri­al, and retri­al, the Menendez broth­ers were con­vict­ed and sen­tenced to life in prison with­out parole. New evi­dence bol­ster­ing the broth­ers’ claims of abuse has now sur­faced, and coun­sel for both broth­ers filed habeas peti­tions argu­ing for a new tri­al. On October 24, 2024, Los Angeles County District Attorney George Gascón announced he would ask the court for a resen­tenc­ing hear­ing. Since both broth­ers were under the age of 26 at the time of the inci­dent, they would be eli­gi­ble for parole if resen­tenced to 50 years to life.

If there is a new sen­tenc­ing hear­ing for the Menendez broth­ers, the evolv­ing sci­ence about the effects of trau­ma will be a cen­tral issue. Numerous soci­o­log­i­cal and psy­cho­log­i­cal stud­ies have found a pow­er­ful link between child­hood abuse and lat­er crim­i­nal behav­ior, par­tic­u­lar­ly vio­lent crime. One of the most influ­en­tial stud­ies on this sub­ject is the Adverse Childhood Experiences (ACE) Study pub­lished by Kaiser Permanente in 1998, just two years after the Menendez broth­ers were sen­tenced. This study estab­lished that indi­vid­u­als who expe­ri­enced abuse, neglect, or house­hold dys­func­tion dur­ing child­hood were at sig­nif­i­cant­ly high­er risk of devel­op­ing men­tal health issues, engag­ing in risky behav­ior, and devel­op­ing sub­stance abuse dis­or­ders — all of which are fac­tors asso­ci­at­ed with an increased like­li­hood of crim­i­nal behav­ior. Research con­tin­ues to show that crim­i­nal behav­ior is linked with adverse child­hood expe­ri­ences. A 2013 study found that those with exten­sive crim­i­nal records had a greater num­ber of ACE than their coun­ter­parts with­out criminal records.

Mental health issues and trau­mat­ic expe­ri­ences are often pre­sent­ed as mit­i­ga­tion evi­dence dur­ing cap­i­tal tri­als, which are dif­fer­ent from oth­er crim­i­nal tri­als, as they have two sep­a­rate phas­es of guilt and sen­tenc­ing. The United States Supreme Court has held that a defen­dant has the right to present any rel­e­vant mit­i­gat­ing evi­dence in sup­port of a life sen­tence dur­ing the sen­tenc­ing-phase. Prosecutors may present aggra­vat­ing evi­dence in sup­port of a death sen­tence, such as details of the crime deemed par­tic­u­lar­ly heinous or atro­cious. Following the land­mark 7 – 1 deci­sion in Lockett v. Ohio (1978), the Court required states to allow cap­i­tal sen­tenc­ing judges and juries to con­sid­er all rel­e­vant mit­i­gat­ing evi­dence, strik­ing down Ohio’s law which had only per­mit­ted mit­i­gat­ing evi­dence if it met cer­tain cri­te­ria. Sandra Lockett, the defen­dant in the case, had been sen­tenced to death in 1975, at the age of 21, with no pri­or felony con­vic­tions. The evi­dence in Ms. Lockett’s case estab­lished that she was, at worst, a get­away dri­ver who did not kill any­one nor intend for any­one to be killed. As a result of the rul­ing, Ms. Lockett and approx­i­mate­ly 100 oth­er death-row pris­on­ers in Ohio were resen­tenced to life with the pos­si­bil­i­ty of parole. In the case of the Menendez broth­ers, coun­sel pre­sent­ed exten­sive evi­dence of the abuse that both broth­ers expe­ri­enced dur­ing their first tri­al. However, this tri­al end­ed in a mis­tri­al when nei­ther jury could reach a unan­i­mous deci­sion. During their sec­ond tri­al, much of this mit­i­gat­ing evi­dence was not pre­sent­ed, and pros­e­cu­tors con­tend­ed that both broth­ers were lying about the abuse they suffered.

The Death Penalty Information Center (DPI) found that of the 90 peo­ple exe­cut­ed from 2020 through October 31, 2024, 76.7% of them had expe­ri­enced sig­nif­i­cant trau­ma, 53.4% had severe men­tal ill­ness, and 44.4% had low IQ and/​or brain dam­age. Wesley Purkey’s men­tal health his­to­ry was marked by an array of severe psy­cho­log­i­cal and neu­ro­log­i­cal dis­or­ders, com­pound­ed by pro­found trau­ma begin­ning in child­hood and wors­ened by pro­gres­sive cog­ni­tive decline. Sentenced to death in 2004 for the 1998 mur­der of a teenage girl, Mr. Purkey’s jury did not hear the depth of his men­tal ill­ness. Diagnosed with schiz­o­phre­nia and psy­chosis, con­di­tions with symp­toms of delu­sions and hal­lu­ci­na­tions, Mr. Purkey had a frag­ment­ed grasp on real­i­ty. He was also being treat­ed for bipo­lar dis­or­der and com­plex post-trau­mat­ic stress dis­or­der (PTSD), stem­ming from ​“per­va­sive and extra­or­di­nary child­hood phys­i­cal, sex­u­al, and emo­tion­al abuse he endured.” One psy­chi­a­trist that eval­u­at­ed Mr. Purkey not­ed 11 dis­tinct trau­ma cat­e­gories, includ­ing repeat­ed sex­u­al abuse and assault inflict­ed by his moth­er from the age of 10.

As Mr. Purkey aged behind bars, his delu­sions con­tin­ued. He held a ​“con­sis­tent belief” that he was going to be exe­cut­ed because of ​“a grand con­spir­a­cy against him” in retal­i­a­tion for griev­ances and law­suits he filed against the Federal Bureau of Prisons. He reit­er­at­ed that cor­rec­tions offi­cers admit­ted to him ​“all the time” that they knew his legal fil­ings were the ​“real rea­son” for his death sen­tence. A psy­chi­a­trist assess­ing Mr. Purkey’s com­pe­ten­cy for exe­cu­tion deter­mined that he ​“lack[ed] a ratio­nal under­stand­ing for the basis of exe­cu­tion,” and instead ​“has a fixed belief that he is going to be exe­cut­ed in retal­i­a­tion for his legal work.” In 2017, Mr. Purkey was diag­nosed with demen­tia, which pro­gressed to Alzheimer’s dis­ease by 2019. Ultimately, the fed­er­al gov­ern­ment exe­cut­ed Mr. Purkey on July 16, 2020, after a 5 – 4 overnight deci­sion from the United States Supreme Court cut short judi­cial review of his legal claims. 

As of October 31, 2024, DPI deter­mined that 16 of the 20 peo­ple exe­cut­ed this year, or 80%, had expe­ri­enced trau­ma, large­ly dur­ing child­hood and ado­les­cence. Florida death-sen­tenced pris­on­er Loran Cole, who was exe­cut­ed on August 19, 2024, was one of these indi­vid­u­als. Mr. Cole was sen­tenced to death in 1995 for the mur­der of a Florida State University stu­dent. Following the governor’s issuance of an exe­cu­tion war­rant, coun­sel for Mr. Cole filed a motion request­ing the judge vacate his death sen­tence, argu­ing in the motion that the state of Florida is ​“com­plic­it in the hor­rif­ic and trag­ic” abuse that Mr. Cole expe­ri­enced at the ​“noto­ri­ous” Arthur G. Dozier School for Boys. In 1984, at age 17, Mr. Cole was sent to the Dozier School, where he lived through ​“tor­tur­ous treat­ment.” Dozier was a reform school oper­at­ed by the Florida Department of Juvenile Justice at the time of its clo­sure in 2011. The dis­cov­ery of numer­ous unmarked graves on the prop­er­ty pro­vid­ed grim evi­dence of the harsh con­di­tions, vio­lent inci­dents, and cru­el treat­ment endured by the chil­dren and ado­les­cents sent there. Former stu­dents have recount­ed har­row­ing sto­ries of abuse and tor­ture inflict­ed by Dozier staff, shar­ing these accounts with Florida law­mak­ers. According to court fil­ings, Mr. Cole’s pre­vi­ous­ly repressed mem­o­ries of abuse at Dozier resur­faced after he watched a doc­u­men­tary detail­ing sim­i­lar expe­ri­ences suf­fered by oth­ers at the insti­tu­tion. He alleged that dur­ing his six-month stay he endured fre­quent beat­ings, suf­fered sex­u­al assault by a guard, and had both legs bro­ken fol­low­ing an attempted escape.

In 2021, 36.4% of exe­cut­ed pris­on­ers expe­ri­enced the com­pound­ing effects of trau­ma, severe men­tal ill­ness, and low IQ and/​or brain dam­age, includ­ing Lisa Montgomery, whose exe­cu­tion marked the first fed­er­al exe­cu­tion of 2021. Ms. Montgomery, a moth­er of four, killed a preg­nant woman and cut her baby out of her stom­ach. She read­i­ly admit­ted to her crime when police found her with the new­born the fol­low­ing day. Ms. Montgomery’s tri­al attor­ney nev­er pre­sent­ed her cap­i­tal jury with a com­plete pic­ture of the intense abuse and trau­ma she expe­ri­enced through­out her entire life. Instead, he argued that she suf­fered from pseudo­cye­sis, a phan­tom preg­nan­cy, and attempt­ed to make an insan­i­ty plea. Once Ms. Montgomery moved to appel­late pro­ceed­ings, her attor­neys began to unearth the details and sig­nif­i­cant evi­dence of her men­tal ill­ness and trau­mat­ic expe­ri­ences. As a young child, Ms. Montgomery’s fam­i­ly moved in with her step­fa­ther, who built a struc­ture in their back­yard where he and his friends sex­u­al­ly abused her. Ms. Montgomery’s own moth­er pros­ti­tut­ed her in order to ​“pay the bills” and at the age of 18, she was forced to mar­ry her step­broth­er, who con­tin­ued to sex­u­al­ly assault her. Ms. Montgomery’s legal team also found evi­dence that she had been beat­en so bad­ly it had caused a trau­mat­ic brain injury. According to a 2018 study, trau­mat­ic brain injuries are asso­ci­at­ed with an increased risk of vio­lence and crim­i­nal con­vic­tions. Those with a his­to­ry of trau­mat­ic brain injury tend to report sig­nif­i­cant­ly high­er lev­els of past abuse, neglect, and trau­ma com­pared to indi­vid­u­als who have not expe­ri­enced a trau­mat­ic brain injury. Additionally, these indi­vid­u­als are more like­ly to expe­ri­ence ongo­ing chal­lenges with men­tal health issues and substance abuse.

The jury in 2008 nev­er heard about Ms. Montgomery’s men­tal health diag­noses: bipo­lar dis­or­der, tem­po­ral lobe epilep­sy, com­plex-post trau­mat­ic stress dis­or­der, dis­so­cia­tive dis­or­der, and psy­chosis. Had this infor­ma­tion been pre­sent­ed as mit­i­gat­ing evi­dence, she may not have been sen­tenced to death and then exe­cut­ed. The American Bar Association’s most recent ​“Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases” empha­sizes the impor­tance of devel­op­ing mit­i­gat­ing evi­dence in cap­i­tal cas­es. It states: “[I]t is imper­a­tive that coun­sel begin inves­ti­gat­ing mit­i­gat­ing evi­dence and assem­bling the defense team as ear­ly as pos­si­ble — well before the pros­e­cu­tion has actu­al­ly deter­mined that the death penal­ty will be sought.”