Brandon Bernard, who was 18 when he took part in a 1999 double murder in Texas, is set to die by lethal injection in a federal prison Thursday evening, barring a successful 11th-hour court intervention or reversal by the Trump administration.
The case has drawn renewed interest in recent weeks and sparked debate over whether the death penalty is a necessary punishment for someone who was barely a legal adult at the time of the crime. Now 40, he is set to become the youngest person, based on his age when the offense occurred, in nearly seven decades to be executed by the federal government.
His execution is set for 5 p.m. CT at the federal prison in Terre Haute, Indiana. Less than three hours before, a federal appeals court that includes Indiana denied an emergency request from Bernard's lawyers to halt the execution, although legal efforts in other courts were still pending.
Bernard would be the ninth person put to death by the federal government this year after the Department of Justice 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 a hold on executions. But the surging number 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 on Wednesday asked a federal appeals court to temporarily halt his execution while they pursue 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 now says she doesn't believe he should be put to death, in part, because he was a teenage offender and has 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," Rob Owen, an attorney for Bernard, said.
In addition, reality television star 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 earlier Thursday that she had been "crying all morning" before hearing of the appeals court's decision.
Democratic Sens. Dick Durbin of Illinois and Cory Booker of New Jersey, members of the Senate Judiciary Committee, also urged Trump to grant clemency and argued 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 Friday. All involve Black men except for the case of 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 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.
Bernard was sentenced to death for his role in a robbery plot carried out by a group of friends between the ages of 15 and 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 the heads before the car they were in was set on fire, according to court documents.
Bernard's lawyers argue that he was a follower in the plot and had not known the couple was going to be murdered. Another adult defendant tried with Bernard, Christopher Vialva, who was the accused ringleader, was executed in September. Three others involved were not adults when the crime occurred and ineligible for the death penalty, instead 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.
"Please remember the victims and their families whose lives have been shattered and are still trying to cope," Todd Bagley's mother said in a prior statement.
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U.S. set to execute Brandon Bernard, who was 18 at the time of his crime, despite appeals - NBC News
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