Can you solve this riddle?

Two brothers walk into a bar and start to order drinks. One of the brothers gets into a fight with the bartender. The other says, "Don't do it," but the he doesn't listen. He stabs the bartender and kills him. They both get arrested and both sent to court but the judge says, "I know you killed the bartender but I cannot send you to prison." Why can't he go to prison?

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