Federal Death Row Executions Raise Red Flags For Advocates

By Emily Lever | December 20, 2020, 8:02 PM EST

On Dec. 10, Brandon Bernard was executed by the federal government for a crime committed in 1999, over the objections of jurors who sentenced him to die, the prosecutor who defended his conviction on appeal, and a host of public figures and private citizens.

On Jan. 14, Corey Johnson is set to be executed over objections that he has an intellectual disability that makes his death sentence unconstitutional, if his attorneys can't convince the courts to put a stop to executions as a COVID-19 outbreak spreads like wildfire through federal death row in Terre Haute, Indiana.

Bernard was the ninth person on federal death row to be executed in 2020 — a year that saw the U.S. government execute more people than all states put together, according to the Death Penalty Information Center, with more federal executions in the past five months than in the entire 20th and 21st centuries. Johnson is among three more scheduled to die before President Donald Trump leaves office. The federal execution spree stands in stark contrast to the dramatic decrease in the use of the death penalty nationally, Robert Dunham, the executive director of the DPIC, told Law360.

"None of the executions that have happened this year would have occurred in an administration that respected the judicial process and allowed the courts to meaningfully consider whether the executions were even legal," Dunham said. "In an administration that was concerned about the integrity of the judicial process, one would have expected that the prisoners selected for execution would not have controversial issues pending in their cases, but all of them did."

These cases were also tainted by improper legal proceedings, Dunham said, alleging that the government illegally set execution dates for defendants whose appeals had not run their course and that federal judges approved executions on an excessively quick timeline, or without respect for defendants' civil rights.

Among the controversies, Dunham noted that Alfred Bourgeois, executed on Dec. 11 for killing his 2-year-old daughter, was intellectually disabled and, as such, his legal team argued his execution was constitutionally prohibited. Wesley Purkey, who was killed June 16, and Lisa Montgomery, scheduled to be executed Dec. 31, are both severely mentally ill, according to their counsel.

Orlando Hall, who was Black, was sentenced to death by an all-white jury and executed Nov. 18. Lezmond Mitchell, a citizen of the Navajo Nation, was executed Aug. 26 for the murder of fellow members of his tribe on tribal land, against the will of the Navajo Nation. Bernard and his co-defendant Christopher Vialva, executed Sept. 24, were teenagers when their crime occurred.

"Rather than exemplifying why there should be a federal death penalty, they represent the things that are wrong about the federal death penalty," Dunham said.

The U.S. Department of Justice has defended its policies, leaning heavily on grisly details of the crimes of the condemned. It also maintains that there are no outstanding legal issues in the cases for which it has set execution dates, and has issued public statements that the defendants all had fair trials and have exhausted their postconviction and appellate legal remedies. The federal Bureau of Prisons could not immediately be reached for further comment. 

"Under Administrations of both parties, the Department of Justice has sought the death penalty against the worst criminals," the DOJ said in one statement. "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."

Counsel for Dustin Higgs, who is set to be executed Jan. 15, argue that calling him one of the "worst criminals" is inapposite, given that Higgs was sentenced to death despite not being convicted of murder. His co-defendant, who was recognized at trial as the triggerman who killed three people, was sentenced to life without parole, while Higgs was convicted of ordering the murders based solely on what his attorneys called the "flimsy" testimony of a cooperating third co-defendant.

Higgs is also one of the many incarcerated people across the country to have tested positive for COVID-19, his attorney Shawn Nolan announced Thursday. The series of executions that were already carried out this year at Terre Haute likely caused the outbreak currently affecting the facility, according to the American Civil Liberties Union's Capital Punishment Project.

"This is surely the result of the super spreader executions that the government has rushed to undertake in the heart of a global pandemic," Nolan said in a statement Thursday, referring to his client's infection. "We have asked the government to withdraw the execution date and we will ask the courts to intervene if they do not."

Another person on death row, Johnson, has also tested positive for the virus, his attorneys announced Friday. 

"The government must stop conducting executions during a COVID-19 outbreak in the facility, and we have called on the Department of Justice to withdraw Mr. Johnson's execution date," Donald Salzman and Ronald Tabak said in a statement. "The widespread outbreak on the federal death row only confirms the reckless disregard for the lives and safety of staff, prisoners, and attorneys alike."

Death penalty trials are divided into "guilt-innocence" and sentencing phases, the latter of which involve presenting mitigating evidence about the defendant to the jury, such as past trauma and hardship, remorse for the crime and other factors. A recurring theme in advocates' concerns about the current spate of executions is that most defendants had substantial mitigating circumstances that jurors were never told about during the sentencing phase.

That was the case for Bernard, who became the youngest person executed by the federal government in over 70 years, according to advocates. The case was irredeemably tarnished by the substandard legal counsel Bernard and his co-defendant Vialva received and the prosecution's decision to present junk psychology to the jury and suppress the testimony of an expert who contradicted the prosecution's argument that Bernard was habitually violent and an active gang member, according to Robert Owen, Bernard's postconviction attorney.

"Many things went wrong to put Brandon on death row, including egregious government misconduct in concealing evidence and misleading the jury, which the courts refused to remedy," Owen said in a statement.

The federal jury that sentenced the two teenagers to death was told to consider their "future dangerousness," and heard from an expert testifying on behalf of the government who said they were both irredeemably locked into a trajectory of violence.

But both defendants, while in prison, grew into completely different people from the picture painted by the government expert, according to Adam Andreassen, a youth pastor who spoke to Bernard in the aftermath of his arrest.

"Any of the opinions by mental health experts who implied that his trajectory of dangerousness was locked in is laughable," Andreassen, who is now a youth psychologist, told Law360. "Vialva was in a much different, more hardened place than Brandon and even he changed his path in life."

The defendants' youth — the human brain does not finish developing until the age of 25 — did not weigh in their favor, according to Owen.

"There's a tendency to project maturity onto Black children in the way that they don't onto white children, particularly when it comes to perception of dangerousness," Owen told Law360, pointing to research on what sociologists call the adultification of Black children and youth. "The innocence of childhood is being denied to Black kids."

When presented in 2018 with evidence that had not come to light at trial, the prosecutor who defended Bernard's conviction on appeal and five of the nine surviving jurors voiced their support for a commutation of Bernard's sentence, arguing that the prosecution withheld mitigating evidence about Bernard's remorse and put spurious experts on the stand to advocate for his death.

Greg McClung, one of the jurors, was unsure at the time about giving Bernard the death penalty and advocated strongly for his life to be spared, especially given how young and impressionable he was at the time of the crime and how much he had changed.

"It's weighed on my conscience for a long time," McClung said of Bernard's death sentence. "Justice is one thing, but revenge is another."

The rash of federal executions is the first to take place during a presidential lame-duck period since the 19th century. After a 17-year pause on all federal executions due to the unavailability of lethal injection drugs, the Trump administration devised a new protocol — requiring the use of only one drug, pentobarbital, rather than a combination of three drugs — that was the subject of litigation leading up to the U.S. Supreme Court's ruling Barr v. Roane , which gave the green light to the new protocol. While the Trump DOJ put the wheels in motion, the executions were possible only through the actions of previous presidential administrations.

On the heels of the 1994 crime bill, which was drafted by then-Sen. Joe Biden and expanded the federal death penalty, President Bill Clinton signed into law the 1996 Antiterrorism and Effective Death Penalty Act. The AEDPA imposed restrictions on death row defendants' rights to appeal their sentences. Bernard's legal team say their hands were tied by the AEDPA, because they uncovered new evidence they say would have changed the course of his sentencing only after their appeal had failed.

Advocates expect Biden to halt federal executions again, but Dunham said he hopes the incoming president will issue mass commutations as well for federal death row prisoners.

"A half-measure like declaring a moratorium on executions simply kicks the can down the road and makes it possible for future presidents to carry out this kind of execution spree," he said.

--Editing by Breda Lund.

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