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Brandon Bernard's Planned Execution Stirs Debate Over Punishment for Young Offenders

Brandon Bernard was 18 when he took part in the grisly murders of two youth ministers. He is scheduled to be put to death on Thursday despite a drive among his supporters for clemency.

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Planned Execution Stirs Debate Over Punishment for Young Offenders

Brandon Bernard was 18 when he took part in the grisly murders of two youth ministers. He is scheduled to be put to death on Thursday despite a drive among his supporters for clemency.

Demonstrators outside the Supreme Court in 2017. The Trump administration began carrying out the federal death penalty this year after a nearly two-decade moratorium.
Demonstrators outside the Supreme Court in 2017. The Trump administration began carrying out the federal death penalty this year after a nearly two-decade moratorium.Credit...Brendan Smialowski/Agence France-Presse — Getty Images
  • Dec. 9, 2020Updated 8:48 p.m. ET

WASHINGTON — Brandon Bernard, then 18, joined a haphazard robbery plot in June 1999 that resulted in two grisly murders, a jury found in his federal trial.

Several of his accomplices, who were ages 15 to 17 and considered juveniles under the law, were ineligible for the federal death penalty and received prison sentences for their roles. But another participant in the kidnapping and murder case, who was 19 at the time, was executed in September, and on Thursday the Justice Department plans to execute Mr. Bernard, now 40.

The disparate sentences for the teenagers in the case, determined in part by age differences of months or a few years, have put new focus on the distinction between adults and juveniles when it comes to sentencing and what critics of the death penalty see as its arbitrary application.

The execution of the man who shot the victims, Christopher Vialva, was one of eight since the Trump administration ended a nearly two-decade moratorium and resumed carrying out the federal death penalty in July. Mr. Bernard’s defense team started an online campaign to commute his sentence, and supporters have sent tens of thousands of letters to President Trump, advocating his clemency, his lawyer said.

Among his supporters is Kim Kardashian West, who has been instrumental in raising clemency issues with Mr. Trump and has tried to rally public support for Mr. Bernard on Twitter. Senators Richard J. Durbin, Democrat of Illinois, and Cory Booker, Democrat of New Jersey, also called for Mr. Trump to commute Mr. Bernard’s sentence.

The Federal Death Penalty Act, the 1994 legislation that expanded the crimes eligible for the federal death penalty, stipulated that no one under the age of 18 at the time of the offense may be sentenced to death.

The Supreme Court ruled in 2005 that the execution of those under 18 at the time of their crimes constituted a “cruel and unusual” punishment prohibited by the Eighth Amendment. And several years later, the court found that a mandatory life sentence without the possibility of parole was also unconstitutional for those under the age of 18 at the time of their crimes.

“The essence of law is to impose discrete categories on life’s continuum,” said Robert Blecker, a professor emeritus at New York Law School.

There may be no meaningful difference between someone who is nearly 18 and someone who is 18, Mr. Blecker said, but one may be eligible for the death penalty and one may not. “If you can’t tolerate that,” he said, “you can’t tolerate law.”

The designation of 18 as the age threshold that largely defines adulthood in the United States has become the subject of scrutiny. Research has found that those in their late teens and early 20s lack complete brain maturity. In the landmark Supreme Court case that ruled juvenile death penalty cases were unconstitutional, the majority — acknowledging the potential arbitrariness of an 18-year-old lower limit — maintained that “a line must be drawn.”

Since Mr. Bernard’s sentencing 20 years ago, states have begun to reconsider who they define as juveniles, said Lael Chester, the director of the Emerging Adult Justice Project at Columbia University’s Justice Lab. Vermont, for one, has moved to include both 18-year-olds and 19-year-olds in its juvenile jurisdiction by July 2022, except those charged with serious violent felonies.

Rob Owen, a lawyer for Mr. Bernard, argued that his client’s brain was not yet fully developed at the time of the murders. He added that Mr. Bernard’s case was also marred by bias against young Black people, who he said were often treated as if they were older.

“Brandon in a sense was sentenced under a legal regime that did not give due consideration to his youthfulness,” he said.

The crimes for which Mr. Bernard was convicted grew out of a plan to abduct and rob a victim using an A.T.M. card, according to court documents.

The group split up before Mr. Vialva and two of his accomplices carjacked the victims, Todd and Stacie Bagley, youth ministers who were visiting Texas from Iowa. Mr. Bernard and Terry Brown, then 17, did not participate in the carjacking. At points during that day they went to a laundromat and placed applications at Winn-Dixie because their parents wanted them to find jobs, the Justice Department said in a court filing.

Mr. Vialva, portrayed in court proceedings as the ringmaster, insisted that the group needed to kill the Bagleys. Four members of the group, including Mr. Bernard, then got together and drove the victims to a remote location on the Fort Hood military reservation. Mr. Bernard and Mr. Brown poured lighter fluid on the car. Mr. Vialva shot the victims with Mr. Bernard’s handgun, killing Mr. Bagley and leaving Ms. Bagley unconscious. Mr. Bernard set fire to the car.

During the group’s attempted escape in another car, they slid off the road into a muddy ditch. There, the four were arrested. Because the murders took place on a military reservation, it was deemed a federal crime.

Mr. Bernard was convicted of murder, among other offenses, and sentenced to death.

“I’m sure this Brandon guy was not acting like a child when he committed the murders,” said Michael Rushford, the president of the Criminal Justice Legal Foundation, a legal organization that supports crime victims and the death penalty.

Mr. Vialva and Mr. Bernard were tried together. Like Mr. Brown, two of the other defendants, Christopher Lewis and Tony Sparks, were too young to face the death penalty.

Mr. Brown and Mr. Lewis, who was 15 during the crime, pleaded guilty and testified for the prosecution. Mr. Sparks, who was 16 at the time of the crime, also pleaded guilty. Mr. Brown and Mr. Lewis have since been released from federal prison, and Mr. Sparks is projected for release in 2030, according to a Bureau of Prisons database. He was originally sentenced to life without the possibility of parole.

Courts have been unreceptive to Mr. Bernard’s recent pleas for a delay to his execution. In what could be Mr. Bernard’s final days, his lawyers claimed that the government had suppressed an expert opinion showing that Mr. Bernard held the lowest level of status within the gang with which the government claimed he and the other defendants were affiliated.

The suppressed opinion, his lawyers argued, would have altered the jury’s calculation of his relative culpability. In September, the Fifth Circuit declined to offer Mr. Bernard any sort of reprieve in a case related to the claim. His lawyers brought a similar case in a federal court in Indiana, which a judge denied on Wednesday.

Among those opposing Mr. Bernard’s execution is one of the jurors in the case, Gary McClung, a 56-year-old handyman who lives in Centerville, Tenn. In an interview, he said he had some misgivings about the jury’s recommendation of the death sentence but decided not to put up a concerted fight against what appeared to be the consensus.

Angela Moore, who represented the government on appeal during Mr. Bernard’s and Mr. Vialva’s cases, has since become an opponent of the death penalty. As a young lawyer at the time, the case felt like “a feather in my cap,” she said, and though she had some misgivings about the case, she did not believe airing those concerns would have made a difference.

She later became a public defender. One morning in September, after years of not thinking much about the case, she was stunned to hear news of Mr. Vialva’s execution on NPR. Now, she is advocating on behalf of Mr. Bernard’s clemency and against what she called the “blood lust” in the United States.

“What the U.S. Supreme Court has said is juvenile males, especially who were involved in heinous cases, their brains are not fully developed,” she said. “The jury heard none of that.”

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