In a federal capital punishment resurgence at the end of President Donald Trump’s tenure, his administration planned executions this week for two men convicted of various murders in Texas on military property.
Brandon Bernard, 40, was executed Thursday night in the federal death chamber in Indiana. Alfred Bourgeois, 56, will die on Friday. Bernard’s was the ninth federal execution in 2020, a year that ended a 17-year hiatus from the federal death penalty.
Texas has now executed three people this year – the fewest in nearly a quarter of a century, in large part due to the pandemic.
Federal executions should continue after eight prison workers who attended a federal execution last month tested positive for the coronavirus, according to court records. Five of these employees were scheduled to work during the executions that week. Prison authorities reported that they followed the isolation schedule recommended by the U.S. Centers for Disease Control and Prevention.
The prisoners’ advocates argue that the positive cases highlight the potential danger of execution not only for inmates but also for staff and community members.
“The fact that at least 20 percent of the BOPs [Bureau of Prison’s] The execution team signed COVID-19 after the Orlando Hall execution speaks volumes – especially given that we don’t know how many people chose to have the test, ”said Cassandra Stubbs, director of the Capital Punishment Project American Civil Liberties Union made a statement. “There is currently no way to safely conduct these federal executions.”
Bernard was 18 years old when he was sentenced to death in 1999 for his role in the carjacking and murder of an Iowa couple in a remote part of the Fort Hood Army Post in Killeen. Bourgeois was convicted of killing his 2-year-old daughter at Corpus Christi Naval Air Station in 2002. In both cases, the killings were considered a federal crime because they occurred on military grounds.
Both men argued in court that their executions should be stopped: Bernard claimed the evidence was revealed to the police in 2018 and several changes of opinion by the jury regarding the sentence they were imposing should have prevented his death, and lawyers from Bourgeois have long insisted that he is mentally retarded and therefore not legally entitled to execute.
And both inmates challenged the federal government’s new execution protocol, arguing that their execution dates were scheduled without adequate advance warning.
The federal death penalty law requires executions to be carried out in the same manner as in the states where inmates were sentenced. Since Bernard and Bourgeois were both sentenced to death in federal courts in Texas, they argue that their executions must be scheduled at least 91 days in advance. This is a requirement in Texas law that allows inmates to ask the governor to postpone their executions or change their sentences.
The time gap also allows inmates to face new challenges in court that only become relevant once an execution date is set, such as: B. Questions of intellectual competence or the safety of lethal injectables.
However, Bernard’s federal execution for Thursday was set 55 days in advance. Bourgeois received just three weeks notice for his execution date on Friday.
So far, the courts have rejected timing as a reason to stop executions. US District Judge Tanya Chutkan in Washington, DC, admitted this week that the government’s planning deadlines were in violation of federal capital punishment law, but said the problem was insufficient to stop the executions.
“Both have already filed pardons for clemency, and the decision on whether to approve these requests is now up to the President,” she wrote on her ruling Sunday, adding that she “agrees with the argument that such petitions are likely from the EU Incoming administration would be treated more favorably. “
For Bourgeois, 91 days’ notice would have meant that his execution could not have been scheduled before the inauguration of President-elect Joe Biden on January 20, who has declared he is against the death penalty.
The Trump administration planned to resume federal executions last year and schedule five executions from December 2019. The first federal execution since 2003 took place in Terre in July after litigation over the lethal injection method and the possible painful effects of the execution drug delayed executions.
Since then, seven other men had been killed in the federal execution chamber before Bernard, including Bernard’s co-defendant Christopher Vialva, who was executed in September. Bernard and Vialva were tried together in 2000 and sentenced to death for the murder and robbery of Todd and Stacie Bagley.
Vialva, then 19, and other gang teenagers stole the couple, put them in the trunk and, according to court records, tried to withdraw money from their bank accounts and pawn a wedding ring. Eventually, Bernard and another teenage boy joined them in a remote location on Army grounds.
Vialva shot both victims in the head in the trunk, and Bernard set the car on fire, the records say. Bernard was sentenced to death for Stacie Bagley’s death; An autopsy revealed that she died from smoke inhalation.
In his most recent appeals, Bernard’s attorneys argued that in 2018 they found prosecutors withheld evidence suggesting that Bernard was a low-ranking member of the gang and therefore less likely to pose a potential future threat – something jurors should consider when considering a life sentence or one Death consider sentence. The lawyers also argued that five jurors from his trial were no longer available to their sentences, including one who said Bernard was biased because he was tried alongside Vialva.
The courts rejected the argument that the newly discovered evidence clears the bar to stop an execution or overturn a death sentence. On Thursday evening, U.S. Supreme Court Justice Sonia Sotomayor wrote a statement disagreeing with her court’s decision to continue Bernard’s execution using evidence and knowingly false statements against him. “
Bourgeois was convicted after killing his young daughter by banging her on the window of his truck while he was making a delivery at the Corpus Christi military base, according to court records.
In court, his attorneys have argued that he was mentally retarded, and the US Supreme Court has long ruled that people with intellectual disabilities cannot be executed. Bourgeois’ scheduled execution date last year has been postponed while the courts continued to review his claim. His lawyers presented low IQ scores, repeated grades in elementary school, and tried to follow instructions as indicators of intellectual disability.
An appeals court denied his petition despite the judges recognizing that bourgeois may be considered mentally retarded by current medical standards.
“We are unwilling to accept Bourgeois’ sweeping argument that every time the medical community updates its literature, a new intellectual disability claim arises,” a three-judge panel of the 7th Court of Appeals wrote in a statement from October. “The question in this appeal is not whether Alfred Bourgeois is mentally retarded. Rather, it is a question of whether he was able to assert his claim to intellectual disability. “
As of Thursday night, Bourgeois had multiple appeals pending in various federal courts, as well as a call on Trump to suspend his execution, the last in the nation slated for 2020.