How a unique California law puts the Menendez brothers' fate into the hands of one politician

CNN

8 hours ago

After serving several decades in prison, Erik and Lyle Menendez are facing the possibility of freedom as the California Board of Parole Hearings this week considers whether they've adequately atoned for the 1989 murder of their parents.
While this may seem like the final moment in the long and captivating saga, refueled by several attempts by the brothers' lawyers and the former district attorney to achieve what they say is a more modern version of justice, the brothers have one more potential roadblock – California Gov. Gavin Newsom.
The governor holds an unusual power that allows him to 'affirm, modify, or reverse the decision of the parole authority on the basis of the same factors which the parole authority is required to consider' for someone convicted of murder and sentenced to an indeterminate term, according to state law. While the governor is required to follow certain parameters, he is given broad oversight on the decision.
The little-known and rare ability, established in the 1980s, looms large over the brothers as they prepare to explain to a parole panel why they should be released.
It's not clear how Newsom is leaning, and his office did not answer a question from CNN about his potential decision, but here's what we know about the power that gives him ultimate authority to decide on the brothers' freedom.
The governor's ability to veto the parole board's decision dates to the 1980s, when public reaction toward a now-forgotten case grabbed headlines – as well as the attention of voters.
William Archie Fain, convicted of the 1967 killing of a teenage boy and rape of two teenage girls, was released on parole in 1983 to much outrage from the public, according to the Los Angeles Times. After getting parole, he continued to be accused and found guilty of other crimes, ranging from assault to peeping.
Then-Gov. George Deukmejian tried to prevent his release, but state courts ruled Fain had to be freed.
In response, the California legislature passed Proposition 89, which gave voters the option to allow the governor power to modify the parole board's decision. While there were concerns it would unjustly give a politician too much power, many were more worried about the potential for violence during a tough-on-crime era.
'Proposition 89 will not politicize the parole process, but it will provide an extra measure of safety to law-abiding citizens by giving the Governor the authority to block the parole of criminals who still pose a significant threat to society,' Deukmejian and a state senator wrote in a 1988 voter information guide arguing for the proposition. 'Prop 89 will correct a weakness in the state's parole system and further strengthen California's system of justice.'
The proposition ended up passing with 55% of the vote, according to the UC Law San Francisco Repository. The only other state that gives its governor the power to veto parole grants is Oklahoma, according to the American Civil Liberties Union.
The proposition does limit the window of reversal to 30 days, meaning if the parole board votes to release the brothers, Newsom has 30 days from when the decision is released to change it.
Since the proposition's passing, the power bestowed on the California governor has been curbed slightly by court rulings over the past two decades, said Christopher Hawthorne, clinical professor of law and director of the Juvenile Innocence & Fair Sentencing Clinic at Loyola Law School.
In one, the California Supreme Court ruled the governor must reasonably assess the defendant's risk against public safety, Hawthorne said. Another ruling several years later allowed the governor to consider whether the defendant had insight into their crime, he added.
While the power has been modified, the governor still has room to a make a decision in the Menendez case as long as it follows these guidelines.
Since the proposition was added to the California state constitution, governors have often used it to deny parole in cases during the 1990s and early 2000s, when tough-on-crime policies were more popular, according to Hawthorne.
'In the mid-'80s, California passed law after law after law, frequently by initiative, that made it much harder to get anyone out of prison. And that flow only reversed in about 2012 or 2013 when Gov. (Jerry) Brown was in office,' he said.
'For a long, long time, it was almost impossible to get parole, get found suitable for parole, and if you did get found suitable, the governor reversed a lot of parole grants at that time.'
Hawthorne cited the case of Leslie Van Houten, a former Charles Manson follower and convicted murderer, as an illustration of when governors repeatedly denied parole despite the board approving it. Newsom also denied parole for Sirhan Sirhan, who assassinated US Sen. Robert F. Kennedy in 1968, with the governor citing Sirhan's 'refusal to accept responsibility for his crime' and 'lack of insight and accountability,' among other reasons.
'He does not understand, let alone have the skills to manage, the complex risks of his self-created notoriety. He cannot be safely released from prison because he has not mitigated his risk of fomenting further political violence,' Newsom wrote in a 2022 Los Angeles Times op-ed explaining his decision.
'Every governor is fairly allergic to releasing high-profile defendants,' Hawthorne said, though 'California has done really well in the last 10 years or so' in increasing the availability of parole overall.
'It was something that was not available, essentially, during the (Pete) Wilson, (Gray) Davis or (Arnold) Schwarzenegger administration, with very, very few exceptions,' he said. The three governors served successively from 1991, but starting in 2011, 'Jerry Brown's administration and Gavin Newsom's administration have done infinitely better,' he said.
While the Menendez brothers have some elements working in their favor, such as family and public support, as well as encouraging recommendations from prison and corrections officials, some have passionately argued against their release.
Los Angeles County District Attorney Nathan Hochman hotly contested their potential resentencing earlier this year, despite his predecessor, George Gascón, requesting it.
The previous district attorney, Hochman said in a statement, 'did not examine or consider whether the Menendez brothers have exhibited full insight and taken complete responsibility for their crimes.' His statement also cites the two points Newsom can consider in a potential reversal of a parole board decision.
To help make his case, Hochman created a chart comparing factors considered by the parole board for Sirhan and each Menendez brother. Some of the factors include time served in prison, their education level before and during incarceration, and the gravity of the offense. Since Newsom denied Sirhan's parole based on the factors laid out in the chart, Hochman argued, the Menendez brothers definitely don't qualify for release as the they have more prison rules violations and haven't exhibited full insight into their crimes.
Hochman has said the brothers lied when they claimed the motive for killing their parents was due to abuse they faced from their father. He has previously said he believes evidence to corroborate the abuse allegations is 'extremely lacking;' earlier this year he said his review of the case showed the killings were premeditated and not the result of a threat from their parents.
Although a judge ultimately ruled to resentence the brothers earlier this year – which is why they now have a parole hearing – the positions taken by Hochman's office could still factor into the governor's decision on parole.
The situation is definitely a 'political hot potato,' Hawthorne said, though the overwhelming support for release from family members could heavily weigh the decision.
More than 20 Menendez relatives have banded together over the past year to advocate for release, saying they believe the brothers' abuse claims and that society's understanding of childhood sexual abuse has changed dramatically since their conviction in 1996. They also say the brothers have grown and tried to help others through rehabilitative programs in prison.
Anamaria Baralt, a cousin of the Menendez brothers and leader of the coalition, told reporters last October that 'If Lyle and Erik's case were heard today, with the understanding we now have about abuse and PTSD, there is no doubt in my mind that their sentencing would have been very different.'
She also read a statement from Terry Baralt, Jose Menendez's sister: 'I implore the district attorney's office to end our prolonged suffering and release Lyle and Erik back to our family. Thirty-five years is such a long time. My prayer is that I live long enough to see my nephews again and to hug them once more.'
Oftentimes, a victim's family opposes release, Hawthorne said, making this a unique situation.
'It's interesting in this case, given that Jose and Kitty Menendez's family are largely in favor of both Eric and Lyle getting out – those voices will matter, and they will be brought to bear in that 30-day window when the governor has the case,' he said. The family will be able to express their opinions to the governor's office through calls, letters and other documents, in an attempt to sway his opinion.
'I can't think of a governor who wouldn't be sensitive to that,' Hawthorne said.