Brandon Bernard, who was 18 when he took part in a 1999 double murder in Texas, was killed by lethal injection at a federal prison Thursday, despite eleventh-hour attempts for court intervention.
The case drew renewed interest in recent weeks and sparked debate about whether the death penalty is a necessary punishment for someone who was barely a legal adult at the time of the crime. Bernard, who was 40 when he was executed, was the youngest person, based on his age when the offence occurred, in nearly seven decades to be put to death by the federal government.
The Supreme Court denied a request for an emergency stay Thursday night, and Bernard was pronounced dead at 9:27 p.m.
In the moments before his death, a calm Bernard spoke directly to the family of the couple he killed. “I’m sorry,” he said. “That’s the only words that I can say that completely capture how I feel now and how I felt that day.”
Bernard’s attorney called the execution “a stain on America’s criminal justice system.”
“Brandon made one terrible mistake at age 18,” said the lawyer, Robert C. Owen. “But he did not kill anyone, and he never stopped feeling shame and profound remorse for his actions in the crime that took the lives of Todd and Stacie Bagley. And he spent the rest of his life sincerely trying to show, as he put it, that he ‘was not that person.'”
Bernard was the ninth person put to death by the federal government this year after the Justice Department resumed executions in July after a 17-year hiatus on the federal level.
This year, fear over the spread of the coronavirus in prisons has largely led states to put holds on executions. But the surging numbers of Covid-19 cases and deaths in recent months have not deterred the federal government from acting in the final weeks of Donald Trump’s presidency.
Bernard’s attorneys asked a federal appeals court Wednesday to temporarily halt his execution while they pursued claims that the prosecution at his trial unconstitutionally withheld evidence that would have led jurors to give him a life sentence. Five jurors have since come forward to attest that they no longer support the death penalty in the case, while a former prosecutor who challenged Bernard’s appeal of his death verdict said she did not believe he should be put to death, in part, because he was a teenage offender and had become a model prisoner.
“Given that five jurors no longer stand by their death verdict, Brandon must not be executed until the courts have fully addressed the constitutionality of his sentence,” Owen said.
In the Supreme Court’s decision to decline a stay Thursday, Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor would have granted the request.
Kim Kardashian West, who has championed criminal justice causes, again asked her millions of followers on social media this week to appeal to Trump to commute Bernard’s sentence. She tweeted Thursday: “Just spoke to Brandon for what will likely be the last time. Hardest call I’ve ever had.” She added that she was in tears.
Democratic Sens. Dick Durbin of Illinois and Cory Booker of New Jersey, members of the Judiciary Committee, had also urged Trump to grant clemency, arguing that “the death penalty in the United States is fatally flawed in its imposition and is disproportionately imposed based on race.”
Attorney General William Barr said in July that those slated for death were “among the worst criminals” and acknowledged a desire to bring justice to the victims. The Justice Department did not respond to a request for further comment on the next batch of planned executions.
Aside from Bernard’s case, the federal government has scheduled four more executions, including one on Friday. All involve Black men except Lisa Montgomery, who is set to die next month and would be the first woman in nearly 70 years to be executed by the federal government.
Death penalty experts say that the way the Trump administration is moving ahead with executions during a lame-duck period has no parallel and that in the past, the outgoing administration would defer such cases to the incoming one. President-elect Joe Biden campaigned in support of a moratorium on the death penalty, favoring instead life sentences without probation or parole.
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Bernard was sentenced to death for his role in a robbery plot carried out by a group of friends ages 15 to 19 on a remote stretch of the Fort Hood military reservation near Killeen, Texas. The victims, Todd and Stacie Bagley, married youth pastors who were white, were kidnapped and shot in their heads before the car they were in was set on fire, according to court documents.
Bernard’s attorneys argued that he was a follower in the plot and had not known the couple were going to be murdered. Another adult defendant tried with Bernard, Christopher Vialva, who was accused of being the ringleader, was executed in September. Three other people involved were not adults when the crime occurred and was ineligible for the death penalty, instead of receiving prison sentences.
The victims’ family have said that despite reports of how the co-defendants may have turned their lives around in prison, they still support their executions.
Todd Bagley’s mother, Georgia, in a written statement, thanked the Trump, Barr and the Justice Department.
“This senseless act of unnecessary evil was premeditated and had many opportunities to be stopped at any time during a nine-hour period,” she said in the statement. “This was torture, as they pleaded for their lives from the trunk of their own car.”
“Please remember that the lives of family and friends were shattered and we all have grieved for 21 years waiting for justice to finally be served,” she wrote.
But Georgia Bagley said she was moved by the apologies of Bernard and Vialva before he was executed in September.
“The apology and remorse … helped very much heal my heart,” she said, beginning to cry and recompose herself, according to The Associated Press. “I can very much say: I forgive them.”
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