Brandon Bernard was 18 when he was arrested as an accomplice in the 1999 kidnapping and murder of two youth ministers on a secluded stretch of the Fort Hood military reservation in Texas.
On Thursday evening, Bernard, now 40, is set to become the youngest person, based on the age when the crime occurred, in nearly seven decades to be executed by the federal government.
Of the next five scheduled federal executions, four of them, including Bernard’s, involve Black men; the fifth person, Lisa Montgomery, would be the first woman to be executed by the federal government in nearly 70 years.
Already in 2020, the federal government has put eight people to death, including the only Native American on federal death row, whose execution in August was opposed by his tribe, the Navajo Nation.
Together, these cases reflect a detachment from this year’s “awakening on the racial injustice that is endemic to our criminal legal system,” Robert Dunham, executive director of the nonpartisan Death Penalty Information Center, said.
“The myth for years has been that the federal criminal justice system was more advanced and fairer than the state court systems and did not suffer from the same legacy of racism and bigotry,” Dunham said.
A Death Penalty Information Center report released in September examined the historical context of how capital punishment has been a tool for authority over Black Americans. Since executions were reintroduced in the United States in 1977, nearly 300 Black defendants have been executed for the murder of a white victim, while only 21 white defendants have been executed for the murder of a Black victim, the report said.
Earlier this year, while the center notes that white men made up the majority of the defendants who were executed by the federal government, the victims in those cases were also white.
“These cases illustrate that on the federal level, as well, the lives of white victims still matter more than the lives of Black victims,” Dunham said, “and the lives of defendants of color matter less than anyone else.”
The Trump administration and the Department of Justice under Attorney General William Barr ramped up executions in July after a 17-year hiatus on the federal level — a combination of the lack of priority under previous administrations, concerns over botched executions and the delays caused by extended appeals.
Barr in July said the those slated for death were among “the worst criminals.” The Justice Department did not immediately respond to a request for further comment.
No state has carried out executions since July, when Texas did so.
Critics argue that employing death sentences during a pandemic is unsafe, particularly when it requires inmates, their families and legal representatives, and teams of federal execution specialists to travel to the federal prison in Terre Haute, Indiana, where executions are held.
Following one federal execution in November, eight members of a 40-person federal execution team later tested positive for Covid-19 after returning home, according to a court declaration of a Federal Bureau of Prisons official filed this week in response to a lawsuit by two Terra Haute prisoners seeking to halt the executions.
The exact circumstances for how the team members became infected was not detailed, but five of those staffers are expected to take part in separate executions scheduled this week, including of Bernard. A Justice Department lawyer said during a federal court hearing Tuesday that “it is difficult to even make the assumptions they contracted it during the execution” in November, and that protocols for upcoming executions are adequate.
But the number of infected could potentially be higher since the testing of members of the execution team is not mandatory, Cassandra Stubbs, director of the American Civil Liberties Union’s Capital Punishment Project, said.
“These executions were wrong for a whole host of reasons related to the quality of counsel, how many of these prisoners had intellectual disabilities or evidence of racial basis,” she said. “So what’s truly breathtaking is how the government has inflicted so much illness and allowing the risk of death to carry out these executions now when they don’t have to.”
The initial execution date for Montgomery, who was convicted in 2007 of strangling a Missouri woman who was eight months pregnant and taking her unborn baby, was moved from December to Jan. 12 after her attorneys caught Covid-19 and couldn’t prepare her clemency application.
The last of the upcoming five executions is scheduled for Jan. 15, five days before the inauguration of President-elect Joe Biden, who campaigned on passing legislation to eliminate the death penalty at the federal level. Instead, his aides say, he supports death row inmates serving life sentences without probation or parole.
Barr told The Associated Press he’s likely to schedule more executions before he leaves the Justice Department. The DOJ last month amended its execution protocols, paving the way for other methods, such as firing squads and poison gas, in addition to lethal injection. The rule goes into effect Dec. 24.
Dunham said the way the Trump administration is moving ahead with its “federal execution spree” during a lame-duck period has no parallel.
“The sheer appetite for killing prisoners is unprecedented in modern American presidential history,” he added.
Angela Moore, a former federal prosecutor for the Western District of Texas, was standing in her bathroom in September getting ready for work when a news report on the radio caught her off guard: The federal government had executed Christopher Vialva, a Black man and the accused ringleader in the Texas murder that involved Bernard as an accomplice.
Moore was the prosecutor who had argued against Bernard’s appeal of his death verdict. She had thought about him over the years, she said, assuming he would spend the rest of his life on death row since the U.S. had not executed anyone for nearly two decades. But hearing that Vialva was killed meant that Bernard would face the same fate.
Her name had been on death warrants for cases such as Bernard’s that ultimately left her questioning whether capital punishment was an effective deterrent against crime.
In these cases, she said, prosecutors seek convictions, in part, to make names for themselves and get promoted, as she had sought; young Black males are often cast to juries as being “dangerous,” and not viewed with humanity; and juries are left to trust that the criminal justice system and courts are foolproof enough to catch flaws in the prosecution or defense.
“I no longer support the death penalty,” Moore, who is white and now in private practice, said. “I felt like I needed to step up and take responsibility. I saw this man did not deserve to die.”
She’s now speaking out against Bernard’s execution, writing an op-ed in The Indianapolis Star in November that although Bernard was an adult in 1999, he “lacked an adult’s capacity to control his impulses, consider alternative courses of action or anticipate the consequences of his behavior.” Emerging scientific studies indicate that teenagers’ brains are still developing and maturing through their mid-20s.
A jury of 11 white people and one Black person found Bernard and Vialva guilty in the deaths of Todd and Stacie Bagley, married youth pastors who were white. Vialva was 19 at the time. Three others involved in the couple’s deaths were not legal adults and ineligible for the death penalty, but pleaded guilty and were sentenced to prison.
Prosecutors said the group devised a plan to intimidate and rob a victim with a gun, and they had come across the Bagleys, according to documents. Vialva was identified as the leader and gunman who fatally shot the couple in their heads. Bernard was accused of buying the lighter fluid and setting the couple’s car on fire with them in it, although the other members of the group testified they hadn’t seen him do it.
One of the jurors in Bernard’s case, Gary McClung Jr., wrote this week for the progressive-leaning American Constitution Society that he now regrets agreeing to the death penalty for him.
“At the time of the trial, I felt that Mr. Bernard was a follower, pressured by his friends into participating in the situation that led to the murders,” McClung said. “I did not think he would have participated if he knew the victims would be killed, and I did not think he would have taken any action to personally kill anyone.”
Bernard’s attorney, Rob Owen, said four other jurors have also come forward to attest that they no longer support the death penalty in the case. In addition, Owen said the federal government hid certain evidence in the case that could have changed the outcome of Bernard’s sentencing.
“Brandon must not be executed until the courts have fully addressed the constitutionality of his sentence,” Owen said in a statement Tuesday.
A federal judge in Waco last week denied a motion to pause the execution after federal prosecutors argued that the defense’s 11th-hour claims were previously rebuffed in court.
Family for the Bagleys could not immediately be reached for comment. Todd Bagley’s mother previously released a statement after Vialva’s execution expressing gratitude that justice was served for her son and his wife.
“The story was focused on Vialva’s life and the changes that he has made,” Georgia Bagley said. “This is not about him and his changed life, but about the victims in this case … Please remember the victims and their families whose lives have been shattered and are still trying to cope.”
Reality television personality Kim Kardashian West, who has championed criminal justice cases by soliciting the help of President Donald Trump, tweeted her support of a campaign asking him to stop Bernard’s execution.
Brandon Bernard, a 40-year-old father is going to be executed tomorrow by our federal government. Having gotten to know Brandon, I am heartbroken about this execution. I’m calling on @realDonaldTrump to grant Brandon a commutation and allow him to live out his sentence in prison. https://t.co/soccUQFmac
— Kim Kardashian West (@KimKardashian) December 9, 2020
Moore said she understands that victims and their loved ones are owed a right to retribution and closure for horrific crimes. But society as a whole, she added, shouldn’t lose sight that Bernard has long expressed remorse and turned his life around behind bars as a model prisoner who helps at-risk youth.
“He used his time in prison to serve his community and somehow changed as a human being, knowing he’d be executed and that none of these good deeds would make a difference for him,” Moore said.
“We have a blood lust in this country,” she added, “and I don’t know where it’s coming from.”