There was never any doubt of Mr. Bernard’s guilt. But the death penalty (which we have long opposed) is supposed to be reserved for the “worst of the worst.” Mr. Bernard, now 40, was only 18 years old when the crimes, resulting in the deaths of Todd and Stacie Bagley, were committed in 1999. That would make Mr. Bernard the youngest person in nearly 70 years to be executed by the United States for a crime committed when he was a teenager. Other points to consider: Mr. Bernard did not play a leading role in the crimes (another teen shot the couple in the head, and Mr. Bernard lit the car on fire); his trial attorney made no opening statement, and no witnesses were called at the penalty stage; Mr. Bernard is Black and faced a nearly all-White jury.
It is instructive that five of the nine surviving jurors no longer believe a death sentence is appropriate, and a federal prosecutor who helped put him on death row now argues against his execution, citing scientific strides establishing that the brains of 18-year-olds are not fully developed and that Mr. Bernard lacked an adult’s capacity to control his impulses. “Executing Brandon would be a terrible stain on the nation’s honor,” former assistant U.S. attorney Angela Moore wrote in the Indianapolis Star.
Questions have also been raised about the cases of some of the other people slated for execution. Lisa Montgomery, who would be the first woman to be executed by the federal government in 70 years if her Jan. 12 execution goes forward, suffers from mental illnesses caused by a life of abuse and sexual assault. Dustin Higgs was sentenced to death for the murder of three women, but the man who actually fired the shots received life in prison without possibility of release. That execution is set for Jan. 15, five days before Mr. Trump leaves office and President-elect Joe Biden, who campaigned against capital punishment, is sworn in.
Federal executions during the transition of administrations are extremely rare; the last time it occurred, according to Robert Dunham of the Death Penalty Information Center, was 100 years ago. To top it off, the administration, according to a report by ProPublica, is trying to push through rule changes that would allow firing squads and electrocutions to be used for federal executions.
Mr. Bernard has been a model prisoner, incurring no infractions and mentoring at-risk youths. He is not asking to get out of prison but instead to have his life spared with a sentence that precludes release. Litigation to halt his execution and that of the others is in progress; we hope for its success.