WASHINGTON – Many have come to believe that Brandon Bernard should have lived. The jurors who sentenced him to death two decades ago think so. So does a former federal prosecutor who helped send him to death row.
Bernard was executed Dec. 10. Barring court intervention, the Trump administration will have executed a total of 13 prisoners by January, outnumbering any presidency since Franklin D. Roosevelt’sand outnumbering all states combined. Nearly half of the prisoners who were executed and are scheduled for execution, including Bernard, are Black.
The Trump administration’s execution spree highlights longstanding inequalities in a criminal justice system that continues to disproportionately treat Black prisoners as the worst of the worst criminals, death penalty experts and advocates say. As the nation reckons with the issue of race and criminal justice following the deaths of George Floyd, Breonna Taylor and others at the hands of police, the Trump administration executed Black prisoners who alleged that their death sentences were made possible by racial bias and prosecutorial wrongdoing – issues that their attorneys said were never meaningfully explored before they received the ultimate punishment.
“Carrying out death sentences that are so clearly shaped by racial bias really ignores, and in some ways, offends the growing recognition on the part of the people in this country that the legal system has not been fair to people of minority race,” said Robert Owen, who represented Bernard.
That the Trump administration moved forward with the executions of Black men —including during the post-election lame-duck period before President-elect Joe Biden takes office — showed “a complete disregard” of societal changes following Floyd’s death, said Ruth Friedman, director of the Federal Capital Habeas Project.
“We come from a history, which I think is getting more attention than it has in the past. Our criminal justice system treats Black and white people differently. You can’t look at the death penalty outside of that context,” Friedman said.
Death penalty disparities
Recent studies have found that in deciding who gets executed, Black lives are treated as if they matter less than white ones.
Defendants convicted of killing white victims were 17 times more likely to get executed than those convicted of killing Black victims, according to a study published last summer by the Harvard Civil Rights-Civil Liberties Law Review.
“It’s clear that no society that claims to be committed to the rule of law could have a system where whether or not someone lives or dies is shaped by either the race of the victim or race of the defendant,” said Sam Spital, director of litigation at the NAACP Legal Defense and Educational Fund. “We know that death penalty in America is shaped by those two things.”
Another study published last fall by the Death Penalty Information Center, which looked at executions in cases involving interracial murders since 1976, found that 295 Black defendants were executed for killing white victims, while only 21 white defendants were executed for killing Black victims.
“What the jury is supposed to be determining is the worst of the worst: Worst of the worst crime, worst of the worst person,” Ngozi Ndulue, senior director of research and special projects for the center. “We’re seeing jurors and prosecutors that are making value judgment about who’s the worst of the worst. The crime becomes worst of the worst when the crime involved a white victim.”
The federal system currently has the same number of Black and white prisoners on death row. By January, the Trump administration will have executed the same number of Black and white prisoners: six each, and one Native American.
But racial disparities can be found by looking at nationwide numbers. Black and white prisoners each make up a little over 40% of federal and state death row inmates, according to the Death Penalty Information Center. Advocates say that’s hugely disproportionate in a country that’s only 13% Black and 76% white.
In Texas, which leads the country in the number of executions, state numbers show the majority of prisoners on death row (44%) are Black, even though the group is only 13% of the state’s population. In contrast, only 27% of death row prisoners are white, in a state that’s nearly 80% white.
In Oklahoma, a state that’s about 8% Black and 74% white, Black prisoners make up about 42% of death row inmates. White prisoners make up nearly 47% of the state’s death row inmates.
“How do we get these incredibly lopsided numbers? The answers would be very much worth pursuing, and a real examination of that has never happened … I would hope that this killing spree (by the Trump administration) might make people take another look,” Friedman said.
Issues of racial bias in recent executions
At least two prisoners who were executed in the past weeks brought up the issue of racial bias.
Bernard, who was convicted in a gang killing of two youth ministers in Texas in 1999, alleged that prosecutors failed to disclose evidence from a police sergeant, who told prosecutors before trial that Bernard was at the very bottom of the gang’s hierarchy. His attorneys said this contradicts with prosecutors’ assertion that Bernard, who did not shoot the victims, was just as culpable as the other suspects.
The Justice Department argued in court papers that the death sentence was lawful. Despite Bernard’s non-leadership status in the gang, he played a substantial role in the ministers’ murders, the department said, noting that Bernard helped set the victims’ car on fire while they were trapped in the trunk. One of the victims was already dead after being shot by the group’s ringleader, while the other was unconscious.
Still, several of the jurors who convicted Bernard have since said that although they believe he is guilty of the crimes, he should not have been sentenced to death.
Angela Moore, a former federal prosecutor in Texas who defended the death sentence on appeal, said last month that she no longer believed Bernard should be executed. Bernard, who was only 18 at the time of the crimes, was seen less for his youth and more for his race, Moore wrote in an op-ed published in the Indianapolis Star.
“The jury found him to be a continuing threat to society and I think that was largely because, at the time of his trial, there was a very widespread but false belief on the part of the white majority in this country that young Black men of that era posed a unique threat of violence and dangerousness,” Owen, Bernard’s attorney, said.
Still, the Supreme Court denied Bernard’s petition to halt his execution. In her dissent, Associate Justice Sonia Sotomayor said “perverse and illogical” rules required Bernard to promptly raise the issue of prosecutorial misconduct – even though he could not have known it existed.
“Bernard has never had the opportunity to test the merits of those claims in court. Now he never will,” Sotomayor wrote.
Another recently executed inmate, Orlando Hall, alleged that one of the prosecutors in his case had a history of striking Black jurors based on their race, a constitutional violation. But his lawyers did not learn of that history until years later. Hall was convicted in the kidnap, rape and murder of a 16-year-old girl in 1994.
During his trial, prosecutors struck a Black juror because of her views on the death penalty, but seated a white juror who expressed similar views, according to Hall’s petition to the Supreme Court. The same Black juror was struck also because she had relatives in prison, but other white jurors with incarcerated family members were seated.
The Justice Department disputed in court records that prosecutors at Hall’s trial discriminated against Black jurors and said Hall relied on evidence of improper jury selection in other cases.
Hall was convicted by an all-white jury. The Supreme Court denied his petition to halt his execution in November.
The Justice Department is set to execute three more people in January – an unusual flurry of executions by an administration just days before the next one takes over.
Lisa Montgomery, who is white and the only woman on federal death row, will be executed on Jan. 12 for strangling a pregnant woman, cutting open her body and kidnapping her child.
Cory Johnson and Dustin Higgs, both Black, will be executed on Jan. 14 and 15, respectively. Johnson was convicted of killing seven people he believed to be rivals in the drug trade. Higgs was convicted of kidnapping and killing three women.
Attorney General William Barr has defended the Justice Department’s resumption of executions after a nearly two-decade hiatus.
“The Justice Department upholds the rule of law – and we owe it to the victims and their families to carry forward the sentence imposed by our justice system,” Barr said last year after the first of several executions were scheduled.
Biden has promised to eliminate the federal death penalty and to give incentives for states to do the same.
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