While Three US Supreme Court Judges Dissenting, Execution Of Brandon Bernard Was Carried Out After 21 Years Of Crime

The execution was carried out after the US Supreme Court rejected the last-minute application for stay with three justices - Justice Kagan, Justice Sotomayor, and Justice Breyer dissenting. Justice Sotomayor in her dissenting judgment emphatically stated, "Today, the Court allows the Federal Government to execute Brandon Bernard, despite Bernard's troubling allegations that the Government secured his death sentence by withholding exculpatory evidence and knowingly eliciting false testimony against him. Bernard has never had the opportunity to test the merits of those claims in court. Now he never will."

Brandon Bernard was convicted for his role in the gang-lead abduction, robbery, and subsequent murder of a Texas couple in June 1999 when Bernard was only 18 years old. A federal court sentenced him to death despite his young age at the time of his crime, him being in the lowest rung of the gang, and not playing a leading role in the crime. Bernard, in fact, is only barely eligible for capital sentence after the US Supreme Court in Roper v. Simmons made it unconstitutional to impose the capital punishment for offences committed by persons who were below 18 years of age. The execution is particularly troubling in light of the vast advancements in brain science made in the 20-years since the imposition of Bernard's sentence, which has brought to light the still-developing nature of the adolescent brain; the impact of peer groups on adolescents; and their much lower ability to evaluate risk and consequences, and the increased possibilities of reforms in comparison to offenders above the age of 25. The Centre for Law, Brain, and Behaviour (affiliated to the Massachusetts General Hospital, the Harvard Law School, and the Harvard Medical School) explains that "[t]hey [teenagers] can often recognize risks, but incomplete development of brain mechanisms related to modulation of impulsive behavior reduces their tendency to heed those risks."

The execution of Bernard marks the rare execution carried out in the transition period with only a little over a month left until the lapse of the Trump Government. An execution is such transition period has not been carried out in the last 130 years in the United States. The death penalty is legal in 30 US states and a temporary hiatus imposed on federal executions was broken by the Trump government which has now carried out nine federal executions in the year 2020 after a 17-year gap. The government has further five executions scheduled in the short time left of the Trump presidency and despite the still-raging pandemic in the US.

According to Amnesty International, the US is one of the 20 odd countries still carrying out death sentences while around 142 nations have either abolished the death penalty by law or have ceased to use it in practice.

(Shruthi Ramakrishnan is an independent legal consultant working in the field of human rights.)