Trump administration executes inmate during rare lame-duck period

Brandon Bernard was forty years old when he died by lethal injection on Thursday night inside a federal penitentiary in Terre Haute, Indiana. He was pronounced dead at 9:27 p.m. Eastern time, becoming the ninth person executed under federal authority in 2020 and the first to be put to death during a presidential lame-duck period in more than a century. The last time the federal government carried out executions during a transition between administrations was in the 1890s, under President Grover Cleveland.

Bernard had been eighteen years old in June 1999 when he and four other teenagers approached Todd and Stacie Bagley at a convenience store in Killeen, Texas, asking for a ride. The Bagleys, both in their twenties and returning from a Sunday church service, agreed. Once the couple was in the car, one of the teenagers pulled a gun and forced them into the trunk. For hours, as the group drove around attempting to use the Bagleys' ATM cards, the couple spoke to their captors through an opening in the back seat, urging them to accept Jesus. Eventually, one teenager shot both victims in the head. Bernard then doused the car with lighter fluid and set it on fire. The central legal question that would follow for two decades was whether the gunshots or the flames killed Stacie Bagley—a distinction that would shape arguments about Bernard's culpability and the severity of his sentence.

Before his execution, Bernard spoke for more than three minutes to the witnesses gathered behind a glass barrier. He directed his words to the family of the couple he had killed, his voice steady and deliberate. "I'm sorry," he said, lifting his head to look toward the witness room. "That's the only words that I can say that completely capture how I feel now and how I felt that day." He expressed regret not only for the Bagleys' deaths but for the pain his own family had endured. "I wish I could take it all back, but I can't," he said. Georgia Bagley, the mother of one of the victims, spoke to reporters within thirty minutes of the execution. She thanked President Trump, Attorney General William Barr, and others at the Justice Department for what she described as closure. She became emotional when discussing Bernard's apology and that of another co-defendant, Christopher Vialva, who had been executed in September. "The apology and remorse," she said through tears, "helped very much heal my heart. I can very much say: I forgive them."

Yet Bernard's case had drawn unusual attention in the weeks before his death. Kim Kardashian West, the reality television figure, had appealed directly to President Trump for clemency, tweeting that she had spoken with Bernard and found him focused on his family's wellbeing. A former prosecutor from Bernard's 2000 trial had come forward to say that racial bias may have influenced the jury's decision to impose a death sentence on Bernard, who is Black. Several jurors themselves had since stated publicly that they regretted not choosing life in prison instead. High-profile attorneys Alan Dershowitz and Ken Starr, both of whom had defended Trump during his impeachment, joined Bernard's legal team in filing an emergency petition with the Supreme Court just before the scheduled execution. The Court denied the request roughly two and a half hours later, clearing the way for the execution to proceed.

Bernard's defense team had argued that he was a low-ranking, subordinate member of the group—that the ringleader, Christopher Vialva, who was nineteen at the time, had orchestrated the robbery and committed the murders. They contended that Bernard believed both victims were already dead before he set the car on fire, and that he feared the consequences of refusing an order from the higher-ranking Vialva. A government expert at trial had testified that soot in Stacie Bagley's airway indicated she died from smoke inhalation rather than the gunshot wound, but defense attorneys disputed whether that assertion had been adequately proven. In prison, Bernard had taken up crocheting and had even started a death-row crocheting group where inmates shared patterns for sweaters, blankets, and hats. An anti-death penalty activist who corresponded with him said he was not resigned to dying, that he desperately wanted to live.

The Trump administration had resumed federal executions in July 2020 after a seventeen-year hiatus, proceeding despite coronavirus outbreaks in federal prisons. Eight officials who participated in an execution the previous month had tested positive for the virus, yet the Justice Department refused to delay Bernard's execution or three others scheduled for January. Four more federal executions are planned before President-elect Joe Biden's inauguration on January 20. The eight executions carried out in 2020 already exceed the total number conducted over the previous fifty-six years combined. Critics have noted that the first series of executions over the summer involved white men, which some observers said seemed designed to minimize controversy amid nationwide protests over racial discrimination. Of the five inmates scheduled to die before Biden takes office, four are Black men. The fifth is a white woman who would become the first female inmate executed by the federal government in nearly six decades.