Federal Government Carries Out Two More Executions, Capping Deadliest Federal Death Penalty Year Since the 1890s

The federal government carried out back-to-back executions of Brandon Bernard and Alfred Bourgeois on December 10 and 11, 2020, capping the deadliest run of federal executions in the United States in the 20^th and 21^st centuries. According to the Espy file, a database of executions in the U.S. and its colonies between 1608 and 2002, the ten executions since July 14 constitute the most federal civilian executions in a calendar year since the federal government executed sixteen civilian prisoners in 1896, during the second presidency of Grover Cleveland.

Bernard and Bourgeois were the sixteenth and seventeenth prisoners executed in the United States in 2020, and the last executions scheduled in the country in a year filled with historically aberrant practices. The year marked the first time in U.S. history in which the federal government conducted more civilian executions than all of the states of the Union combined.

The executions brought to three the number of prisoners executed since former Vice President Joe Biden defeated Donald Trump in the November presidential election. The lame-duck executions are the most in the United States since 1888-1889, when three executions were conducted during the transition between the first presidency of Grover Cleveland and the presidency of Benjamin Harrison. The most executions during any transition period is five, in 1884-1885, during the transition between Chester A. Arthur and Cleveland’s first presidency. The Trump administration has scheduled three more transition-period executions for January 11–15, 2021, the week before President-elect Biden’s inauguration.

Biden said during the presidential campaign that the federal death penalty should be ended and that he would create federal incentives for states to abolish their death penalties as well.

Bernard’s and Bourgeois’ executions are the latest in a series of controversial election-year uses of the death penalty by the federal government this year.

The Execution of Brandon Bernard

Bernard was 18 years old when he was an accomplice to the kidnapping, robbery, and murder of a white couple that occurred on federal grounds in a remote portion of Fort Hood. He was the second teen offender executed during the current spate of executions, and the youngest offender executed by the federal government since 1952. Bernard sought a stay of execution to permit the federal courts to review his claim that federal prosecutors had presented false testimony to the jury concerning his degree of involvement in the murder, while suppressing evidence that he was a follower who ranked in the bottom levels of the hierarchy of the group of boys who committed the murder.

On December 10, the Supreme Court declined to hear his case and denied a stay of execution, with Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor dissenting. Justice Sotomayor wrote: “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.”

The Execution of Alfred Bourgeois

Bourgeois was executed despite evidence that he may have been ineligible for the death penalty because of intellectual disability. During his earlier appeals, a federal court in Texas denied Bourgeois’ claim of intellectual disability, relying on a series of lay stereotypes that had no clinical validity and whose use the Supreme Court later declared unconstitutional. When he sought to obtain judicial review of his condition based upon current clinical definitions of the disorder, a federal district court in Indiana — where Bourgeois was incarcerated — found in March 2020 that he had made a “strong showing” of intellectual disability and granted him permission to litigate that claim.

A panel of the U.S. Court of Appeals for the Seventh Circuit reversed, saying “The question in this appeal is not whether Alfred Bourgeois is intellectually disabled. It is, instead, whether he was able to litigate his intellectual-disability claim.” Over the dissents of Justices Sotomayor and Kagan, the Supreme Court declined on December 11 to hear his case and denied his application for a stay of execution. In her dissenting opinion, Justice Sotomayor wrote that, whether or not Bourgeois was entitled to review of the constitutional issue in his case, “[t]he Federal Death Penalty Act (FDPA) provides that ‘a sentence of death shall not be carried out upon a person who is mentally retarded.’” The Court, she wrote, was allowing Bourgeois to be executed without review of his claim even though his IQ scores between 70 and 75 could qualify as intellectually disabled under current clinical standards. “Without the benefit of full briefing and argument, I cannot say for certain whether Bourgeois is correct,” she said, but denying review “may mean permitting the illegal execution of people with intellectual disabilities.”