Brandon Bernard called and emailed me daily in the two months before his execution. We spoke a few hours before he was executed and some of our last words were spent discussing his last words. For the first time, his optimism was gone. Even the day before, he sounded hopeful because he had heard that the Department of Justice’s Office of the Pardon Attorney strongly recommended his sentence be commuted to life in prison.
Brandon read his speech to the Pardon Office to me before presenting it, and the profound level of remorse he expressed brought me to tears. He was a different person from the teenager arrested over 20 years earlier. Up until the end, he did not think he would be executed because he knew he had reformed.
I began writing to death row prisoners after reading Bryan Stevenson’s book “Just Mercy” about an innocent man condemned to death row. Books often change my course; I read a book on factory farming a few years ago and haven’t eaten meat since. After reading Just Mercy, I sent out postcards to about a dozen death row inmates across the US. When I started what my husband, family and
Friends universally consider an odd hobby, I had no idea how gratifying and life-altering writing death row prisoners would become.
When we first began exchanging letters a year ago, I warned Brandon that I had one other pen pal at Terre Haute federal penitentiary. In my experience, inmates do not want to write someone with multiple pen pals at the same facility out of legitimate concerns over privacy and safety. Brandon’s immediate response was, “Well, then that makes me one of the two luckiest men at Terre Haute.” To call himself lucky after over two decades of solitary confinement 23 hours a day in a six-by-eight-foot cell was the first of many lessons in gratitude Brandon taught me.
Brandon was 18 when he took part in a robbery gone wrong. He had no prior history of violence. Brandon’s friends carjacked a white couple, Todd and Stacey Bagley, youth ministers innocently offering a ride to kids purportedly in need. Later, Brandon rejoined the group only to see Christopher Vialva, the ringleader of the crime, fatally shoot Todd and Stacey in the head at close range. The man who had just shot two people in the head and still had a gun in his hand then ordered Brandon and three other teens to set the car on
fire with the couple’s bodies inside. Brandon did as he was told.
At trial, Brandon’s court-appointed lawyer made no opening statement, meaning he offered the jury no alternative perspective on the charges. Brandon was the only accomplice not given an opportunity to plead guilty. The other accomplices pleaded out and received
prison sentences; two are home with their families now.
Five of the nine surviving jurors later did a public about-face, stating that they would not have voted for the death penalty had prosecutors disclosed all facts at trial and had Brandon’s own lawyer competently defended him.
Brandon was falsely portrayed as a hardened high-level gang member. Prosecutors suppressed evidence by their own gang expert that the gang had a 13-tier hierarchy with Brandon at the very bottom. Brandon never got the chance to clarify his case in court — it remained the story poorly told at trial two decades earlier. Five of the nine surviving jurors later did a public about-face, stating that they would not have voted for the death penalty had prosecutors disclosed all facts at trial and had Brandon’s own lawyer competently defended him.
In her dissent written hours before Brandon’s execution,
Supreme Court Justice Sonia Sotomayor wrote that the execution was taking place “despite troubling allegations that the Government secured his death sentence by withholding exculpatory evidence and knowingly eliciting false testimony against him. [He] has never had the opportunity to test the merits of those claims in court. Now he never will.” Brandon became the youngest person, based on age when the offense occurred, to be put to death by the federal government in nearly 70 years, according to
NBC News. He was 40 when he died.
Brandon loved his life, even in its limited capacity on death row. He did not have a single disciplinary infraction in his decades behind bars. This is no small feat given that death row is like a prison within a prison, with countless oppressive rules and ensuing frustrations.
Brandon mainly spent his time mentoring at-risk youth, reading, crocheting and playing the guitar. Brandon was calmer and more patient than most people I’ve come across; he spoke slowly and thoughtfully and was an avid listener. He never cursed and when I asked if that was for religious reasons, he said, “No, cursing just feels too aggressive to me.”
A few days before his execution, Brandon’s family visited him for the last time. After the visit, Brandon told me there was a hole in the pane of glass. I naively said, “Oh, so you were able to hold hands.” He explained it was an air hole to speak through, not large enough for hands, “But,” he said, “I could smell my mom.” In 20 years, including in his final days, Brandon was never allowed to physically touch a loved one. Never having physical contact is an inhumane daily assault on the soul.
Brandon’s case fits the death row profile: His crime and trial took place in
Texas, a state that has executed one-third of the national total. Brandon’s jury consisted of 11 white jurors. Brandon was Black — despite being 13% of the U.S. population, Blacks constitute 42% of death row inmates. The victims are white in approximately 80% of homicide death penalty cases. A recent Death Penalty Information Center study found that in executions involving interracial murders since 1976, 295 Black defendants were executed for killing white victims, while only 21 white defendants were executed for killing Black victims. Death row is riddled with racial bias and is disproportionately home to Black men who have committed an alleged crime against a white person. Fairness cannot be achieved. Executions in our country, whether with rope or needle, have always been about race.
President
Joe Biden has pledged to abolish the federal death penalty and to give incentives for states to do the same. There is a simple alternative to government executions: Keep people behind bars without resorting to killing them. Two-thirds of countries worldwide have abolished the death penalty. Italy abolished the death penalty in 1948;
England in 1969. In the Netherlands, the last execution took place in 1952; Australia in 1967. Since ending the death penalty in 1976, Canada’s murder rate has steadily declined. The US is the only Western democracy to conduct executions. Even
Russia stopped executions in 1996. Our country keeps dubious company with
China,
Iran,
Saudi Arabia,
Iraq,
Egypt and
Pakistan. We are very late in ending state-sponsored executions. It can be done; last month
Virginia became the 23rd state to abolish the death penalty. Brandon, with his typical positivity, would say now is the time.
Brandon’s final words were his deep regret to the victims’ families, his love for his own family and, true to his thoughtful nature, he told the prison guards not to let his execution upset them.
Friends sitting on death row for years have taught me many lessons: patience, keeping the conversation real and meaningful, and appreciating what I have. The hassle of driving my daughter to school is now about holding her hand at stoplights and rolling the windows down so I can feel the air. The freedom.
I’ve learned that pure good and evil rarely exist in reality and that I can do better than unequivocal righteousness. But, mainly I’ve discovered that love is such a fundamental need of all people that it can create a bond between a “suburban white girl,” as one San Quentin friend calls me, and a former LA gang member who has forsaken the drugs and crime of his youth. I’ve also come to understand that people can profoundly change with time.
During our daily talks, I never had anything to offer Brandon other than my love and support. He never asked me for a single thing besides friendship. Brandon was religious, but since I’m not, I couldn’t offer him prayers or talk about how heaven is a better place. I could only helplessly listen and tell him that I love him.
Brandon’s final words were his deep regret to the victims’ families, his love for his own family and, true to his thoughtful nature, he told the prison guards not to let his execution upset them. Our final words to each other were about what he would visualize on the gurney to stay calm. I told him to imagine my arms holding him down instead of straps and he promised he would. I was crying and told him I was sorry I couldn’t save him. He said I saved him with my love. And we said goodbye.
Jennifer Wasserstein is an
immigration lawyer. This article first appeared on HuffPost Personal.
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