The news that Brandon Bernard was scheduled for execution this Thursday hit me hard.
Brandon was convicted and sentenced to death in Waco, Texas, 20 years ago; I was the federal prosecutor who defended that death verdict on appeal. Brandon did not shoot either of the victims, but he was convicted on speculative evidence that he lit the victims’ car on fire while they were inside, contributing to one death by smoke inhalation. I wrote briefs arguing that Brandon had a fair trial according to the law and that his sentence was justified, even though he was only 18 at the time of the crime.
I then argued to a panel of federal appellate judges to affirm his conviction and death sentence, which they did.
After that appeal, I moved on to the next case, because that was my job. I had been a state prosecutor in San Antonio before becoming a federal appellate prosecutor, and I had prosecuted death penalty cases before. Like a lot of people, I didn’t think about the day when the government would take Brandon out of his prison cell and kill him.
A few years later, I left behind my work as a prosecutor and entered the world of private legal practice. I have since represented many young people caught up in the criminal justice system, often younger than Brandon at the time of his crime.
Many of these kids were in the wrong place or with the wrong people, like Brandon. Sometimes, like Brandon, they did not anticipate that a violent crime would occur until circumstances got away from them.
My experience with teenagers who have committed violent crimes, especially boys of color, has taught me much about the recklessness and fragility of adolescents, as well as their ability to mature and change.
For one thing, I know that in the 20 years since Brandon was sent to death row, science has made dramatic strides in understanding the youthful brain. In 2000, it was not widely appreciated that the brain remains physically immature well past age 18. Since then, science has established that the structures of the brain are not fully developed in young men until they are 25 or 26.
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That’s why Brandon, even though legally an adult at age 18, lacked an adult’s capacity to control his impulses, consider alternative courses of action or anticipate the consequences of his behavior. This scientific truth played a decisive role in the Supreme Court’s recent decisions holding that juveniles should be treated differently in the criminal justice system.
The same science shows that 18-year-olds are no different from 17-year-olds in both immaturities and potential for rehabilitation.
Another troubling fact revealed by recent research is that people tend to view Black teens — like Brandon — as more blameworthy than their white counterparts, even where other relevant circumstances are identical.
Indeed, one study showed that Black boys are misperceived as older relative to their peers of other races. Black teens like Brandon are systematically denied the “benefit” of their youth, which is outweighed by their race in the eyes of police, prosecutors, judges and jurors.
Through time and experience, I have come to appreciate that a teenager who takes part in committing a terrible crime may transform over the years into a thoughtful adult. From everything I have read, it appears that Brandon is just such a person — someone who, even in prison, has maintained rich relationships with his loved ones and worked to find meaning in his life by helping at-risk teenagers avoid a criminal path.
Remarkably, in two decades of incarceration, Brandon has never been disciplined for a single violation of prison rules.
Several of the jurors who voted for Brandon’s death sentence, having reflected further on his case and having learned more about his background and successful adjustment to prison, have disavowed their death verdict and publicly called for Brandon’s life to be spared. He is scheduled to be executed by lethal injection in Terre Haute, Indiana.
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They do not doubt his guilt and are not asking for him to be released, but they do feel he should be allowed to live out the rest of his life in prison.
I have come to feel the same way. I always took pride in representing the United States as a federal prosecutor, and I think executing Brandon would be a terrible stain on the nation’s honor.
We rightly must reserve the death penalty for the “worst of the worst,” if as a nation, we continue to impose execution as a punishment. Having learned so much since 2000 about the maturation of the human brain, and having seen Brandon grow into a humble, remorseful adult fully capable of living peacefully in prison, how can we say he is among that tiny group of offenders who must be put to death?
I urgently hope that a court or the president will step in to stop Brandon’s execution.
Angela Moore served as an assistant U.S attorney for the Western District of Texas from 1998 to 2002, and as an assistant district attorney in Bexar County, Texas, from 1990 to 1998. She also has worked as a public defender and as a staff attorney for the Texas Court of Criminal Appeals. Today, she is an attorney in private practice in San Antonio. This column originally appeared in the IndyStar.
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This article originally appeared on Indianapolis Star: In Brandon Bernard execution, prosecutor says he should live