The Trump administration is planning to execute Brandon Bernard today and Alfred Bourgeois tomorrow, despite serious questions about the constitutionality of executing Mr. Bernard—a Black teenager who did not actually shoot the victims and was condemned by a nearly all-white jury—and Mr. Bourgeois—who has presented compelling evidence that he is intellectually disabled and therefore ineligible for the death penalty.
Brandon Bernard was sentenced to death for acting as an accomplice to a crime committed in 1999, when he was just 18. He is one of the youngest people ever sentenced to death in federal court. In a clemency petition submitted to President Trump, his lawyers explain that Brandon had no prior violent criminal record and did not shoot either victim.
Brandon was tried alongside Christopher Vialva, whom prosecutors described as the shooter and the ringleader of the crime. Mr. Vialva was executed in September.
At trial, current counsel argues, Brandon’s lawyer declined to give an opening statement, failed to present critical mitigating evidence, and did not alert the jury to forensic issues that would have resulted in a life verdict.
All but one of the jurors who convicted and sentenced Brandon, a Black teenager, were white. Five of the surviving nine jurors have stated in writing that they now believe a sentence to life imprisonment without the possibility of parole is the appropriate sentence for Brandon Bernard; three of them have urged the president to commute Brandon’s death sentence.
“The death penalty is far too harsh for his level of involvement in this crime,” juror Gary McClung told CBS News.
Angela Moore, the federal prosecutor who defended Mr. Bernard’s conviction and death sentence on appeal, believes that his death sentence should be vacated. “Mr. Bernard did not shoot and kill the victims in this case,” she told CBS News. “He was not the person who planned this robbery gone wrong.”
Two other teenagers who played similar roles to Brandon were sentenced to 20 years in prison, which they have completed. Now 40 years old, Brandon Bernard has been a model inmate for over two decades. In that time, he has never received a single disciplinary infraction, and he has worked to atone for his role in the crime by counseling others and helping at-risk youth both inside and outside of prison.
Alfred Bourgeois is a person with intellectual disability, whose execution is barred by the Constitution and the Federal Death Penalty Act, his attorney Victor J. Abreu said in a statement. But Mr. Bourgeois’s trial lawyers did not present evidence of his intellectual disability to the jury, and despite clear rulings from the Supreme Court that require courts to evaluate intellectual disability using current medical standards, no court has done so.
In October, the Seventh Circuit Court of Appeals acknowledged that Mr. Bourgeois may be intellectually disabled under current medical standards, but ruled that his claim could not be reviewed because he was previously denied relief. “The question in this appeal is not whether Alfred Bourgeois is intellectually disabled,” the court wrote. “It is, instead, whether he was able to litigate his intellectual-disability claim.”
Attorneys for Mr. Bernard and Mr. Bourgeois argue that the federal government violated federal death penalty law by giving them less than 91 days’ notice of their execution dates. As The Texas Tribune reports, it’s critical for people facing execution to have enough notice to file court challenges that can only be raised after an execution date is set—such as mental competency and whether lethal injection drugs will cause cruel and unusual punishment—and request clemency from the appropriate authorities.
But Mr. Bernard’s execution was set just 55 days in advance. Mr. Bourgeois received only three weeks’ notice of his execution date—91 days’ notice would have prevented the Trump administration from executing him.
The executions would be the ninth and tenth federal executions this year. They are set to take place at the federal correctional complex in Terre Haute, Indiana, where eight prison employees who participated in the execution of Orlando Hall last month have tested positive for Covid-19. Coronavirus concerns have led most states to suspend executions this year.