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.”