In Light of the Execution of Brandon Bernard: Death Penalty in America (Opinion)

Vy Nguyen

“You [will] be put to death in the electric chair by having electrical current passed through your body in such amount and frequency until you are rendered death”. There were the words of Judge Clifford B. Shepard to Clifford Williams Jr. on October 27, 1976, when Williams was accused of a break-in murder despite contrasting forensics evidence and a strong alibi. In many ways, he was sentenced because he was Black.

In March 2019, Williams and his nephew, Hubert Nathan Myers, were released after spending 42 years in prison for a crime they did not commit. Williams survived because, in 1980, the Florida Supreme Court overturned his death sentence to life in prison. “There is no credible evidence of guilt, and likewise there is substantial credible evidence to find these men are innocent”, concluded a reformist prosecutor elected by Jacksonville Court in 2016 when they reviewed the case. In a conversation with Nicholas Kristof, Henry M. Coxe III, the prosecutor in Williams’ case, expressed relief that none of the five death sentences he won as a prosecutor was ever carried out.

Williams and Myers at a news conference after their release

Kevin Cooper was arrested on charges of home invasion and murder of four people in 1983. He was sentenced to capital punishment in 1985. For years, activists and investigators have argued for a re-trial given the blatant misconduct in the investigation. Evidence was mishandled: some were planted, others not shared with his lawyers; leads were unfollowed (bloody overalls found at the crime scene that were connected to another suspect were thrown out by the police). DNA testing was not available at the time of the trial, so there was no way then to determine if items tied to the crime scene had been touched or used by Cooper. On December 24th, 2018, Governor Jerry Brown ordered limited DNA tests of some physical evidence, and two months later, Governor Gavin Newsom expanded the test to include more evidence. It will be two years soon since the order of the test, and the public has heard virtually nothing about its results. 

The execution was luckily delayed, but Cooper remains on death row.

Cooper (second from the right) with Kim Kardashian West when she visited him in prison in 2019

In 1993, Kenneth Reams was arrested at the age of 18 for being an accomplice in a murder. They robbed a White man, Gary Turner, at an ATM, and his friend, who asked for Reams’ help with paying for a graduation cap and gown, shot and killed Turner. He was sentenced to death on May 5, 1993, and went on death row as the youngest ever to in Arkansas. Behind bars, he became an accomplished artist with published poems and won second place in the 2016 Lifeline Poetry Competition. 

There was evidence of unprofessionalism and racism in the original trial. In 2018, the Arkansas Supreme Court reversed Reams’ sentence but he remains on death row, pending new hearings and a new sentence. His lawyer, George H. Kendall, mentioned that Reams suffered from years of childhood neglect and abuse, which resulted in slow maturity, “Kenny was a reckless, out-of-control kid who, while barely 18 at the time of the crime, had the mental maturity of a 14-year-old”.

Reams and his wife, Isabelle at their wedding in 2017

In 1994, Scotty Morrow, a Georgian Black man, committed a brutal crime: he fought with his ex-girlfriend, and in a moment of rage, shot her in the head and killed her in front of her five-year-old son. He also shot dead her friend and permanently injured another. He was sentenced to the death penalty. In 2019, the State of Georgia executed him with lethal injection.

Nothing could have justified Morrow’s violent acts, but perhaps a look into his past could explain his actions. He grew up in a violent home and was abused sexually and physically when he was young. Like many other people of color growing up in abusive households, Morrow was never able to seek mental health support to cope with childhood trauma, hence never learned to properly process and express his emotions, according to his lawyer. When his ex-girlfriend told him that she had been exploiting him for money while she waited for her “real man” out of prison, he “just snapped”.

A picture of Morrow

Like Brandon Bernard, Morrow came to be a role model throughout his time incarcerated. The only disciplinary report in his prison record was for intervening in a fight to protect another inmate. In 2019, during a last-hour bid to block his death sentence, correctional officers wrote to the court to appeal for his life, one calling him “just a really nice man”, another noting that he was “literally the only inmate [he] would do this for”. His mental health counselor said “Morrow actually makes the prison safer”, adding that “There were very few inmates I can call fully rehabilitated. But, without question, Scotty is one of them.” Morrow spent every day for the rest of his life since the murder praying for the families of his victims, and in his last moments, he apologized again to them, “I’m truly sorry for all the happened. I hope that you all recover and have healing.” As a Department of Corrections imam finished the prayer with, “I love you, brother”, Morrow responded with, “I love you, too”.

The brief history of capital punishment in America

Legal executions dated back as early as 1630 in American colonies. Back then, capital offenses included minor ones such as pickpocketing or stealing bread. The focus of capital punishment reduced gradually to first-degree murder, killings that were deliberate, willful, and premeditated. and over time, states began to eradicate the death penalty out of their laws, one by one. Michigan became the first state to do so in 1845 and Wisconsin entered the Union in 1848 without capital punishment in its statutes. 

After World War II, the movement against legal executions only expanded, with all Western European nations and Canada removing it from their legislations. Momentum grew in America as well, as the number of executions greatly declined. No executions took place in the country from 1968 through 1976. In 1972, the Supreme Court declared in Furman v. Georgia that capital punishment was unconstitutional because it violated the Eighth Amendment, which prohibits cruel and unusual punishment. They suggested complete reform of capital punishment laws.

In 1976, the Court ruled with new legislations upheld by several states. These laws listed capital crimes that could be punished by death and set up a weighing system for deciding when to apply the death penalty. In this system, a court could only execute someone if the aggravating circumstances, details that made the crime seem worse, outweighed any mitigating circumstances that might excuse the crime or the accused’s actions.

The validation of the death penalty came with dangerous consequences. In the 1987 McCleskey v. Kemp, the defendant attorneys submitted a study by the University of Iowa, which revealed that in 1970s Georgia, Black defendants who killed White people were seven times more susceptible to the death penalty than White defendants killing Black people. Even after considering other variables such as the vicious nature of the crime, Black people were still sentenced to death more than four times as often as White people. In its decision, the Supreme Court acknowledged that there seemed to be some “statistical” racial discrimination, but still ruled by a 5-4 vote that this statistical variation was insignificant in invalidating the death penalty. 

Since then, the Court has prohibited legal executions of certain groups, including those with mental impairments (Ford v. Wainwright and Atkins v. Virginia) and juveniles under 18 (Roper v. Simmons). It has also ruled against the death penalty for crimes that did not result in death, such as rape. 

As of 2020, the United States remains the only Western democracy that still legalizes criminal executions. You can find more information regarding states’ death penalty status here.

In 2019, President Trump called for an expansion of the death penalty, so it would then apply to drug dealers and police murderers and grant them an expedited trial and quick execution. In July 2020, the federal government ordered its first legal execution in seventeen years, in the middle of a pandemic that has killed hundreds of thousands. Ten people have been executed since, including Brandon Bernard, with three more in line.

Bernard with his daughter

A legal system derived of deserved justice

Once, I did not know whether I supported or opposed capital punishment. In 2012, a 17-year-old boy was executed in Vietnam for murdering a family of five and permanently incapacitating the eight-year-old daughter in an attempt of theft. I was of the same age as the daughter then, and remember having a conversation about the case with a family friend on the way from school to an extra class. When he asked me if I agreed with the verdict of capital punishment, I couldn’t answer right away. The death penalty seemed to be the only appropriate response to a crime so callous and cruel, but at the same time, I wondered if the murderer deserved to die at such a young age given the very real possibility of rehabilitation. When I voiced my thought and argued that life imprisonment would have been a preferable sentence, the family friend said that taxpayer money could have been wasted in investing in such a fragile possibility. As an eight-year-old, money was a scary concept that I knew I would be shut down for, so I just nodded and we moved onto another topic.

But 2012 was eight years ago and I have observed the world evolving in more complex ways. I am still unsure about the topic in general, but I can wholeheartedly say that I oppose the death penalty in the current American legal system.

From 1973 to 2020, 172 people have been exonerated from death row in the discovery of evidence proving their innocence. Currently, a total of 2,591 inmates are awaiting sentence on death row. A 2014 study found that for one execution, there stood a 4.1% chance that it was a wrongful one. The chance was small standalone, but given the number of exonerated cases, definitely notable.

Besides, juries still encounter biases and other pressure that prevent them from making the soundest decision. For example, researchers found that juries are more likely to recommend the death penalty for defendants that seem to show remorse, but an innocent person will not do so for a crime they do not commit. On the other hand, death sentences are usually sought with particularly violent crimes of high publicity. An example is the Central Park Jogger case when Donald Trump bought front-page newspaper ads calling for the death penalty for the Exonerated Five.

Trump’s advertisement

On average, those who are sentenced to legal execution spend fourteen years on death row. For most inmates, fourteen years on death row mean fourteen years in solitary confinement, an experience that is proven relentlessly to be the perpetrator of years of PTSD, anxiety, depression, hallucinations, and other physical critical health problems. Even so, people are bound to change after fourteen years. Nicholas Kristof put this into words perfectly, “[Death row inmates] may have the same DNA and fingerprints, but their hearts are not the same.”

According to the Death Penalty Information Center, jurors in Washington state are three times more likely to recommend a death sentence for a Black defendant than a White defendant in similar cases. In Louisiana, the odds of a death sentence were 97% higher for cases with White victims than for ones with Black victims. In 96% of states where there have been reviews of race concerning capital punishment, there was a pattern of discrimination based on the race of either the victim or the defendant, or both.

The cycle of criminal exposure works in tandem with generational poverty. Families of color, especially Brown and Black people, face the very real threat of incarceration and criminality from the moment they are born. It is a setup. The legal system does nothing but ignoring this and continuously enforcing institutionalized marginalization that only perpetuates the reality.

At the end of the day, it is not capital punishment that is the issue – it is the system that is problematic. When a justice system focuses on handing out punishments instead of rehabilitation initiatives, it should be called anything but just. The legal system in America has never been broken; if anything, it is more successful than ever for upholding the status quo and fulfilling its original purpose: oppressing people of color, especially BIPOC, in the upholding of White supremacy.

Say their names:

Brandon Bernard

Alfred Bourgeois

Lisa Montgomery: execution scheduled for 12 January 2021

Cory Johnson: execution scheduled for 14 January 2021

Dustin John Higgs: execution scheduled for 15 January 2021

(PS: In America, capital punishment costs more than life prison because pretrial preparations, jury selection, and appeals are more expensive in capital cases and death row confinement costs way more than general incarceration. On average, each death sentence cost American taxpayers $700,000 more than life imprisonment. I wish I have known that in fourth grade– the conversation would have been a little different.)