Brandon Bernard Is Scheduled To Be Executed. 5 Jurors Who Sentenced Him Don’t Think He Should Die.

On Dec. 10, Brandon Bernard is scheduled to be executed.

If the execution goes forward, he will die for acting as an accomplice in a crime that happened when he was 18. Five of the nine surviving jurors who voted 20 years ago to condemn Bernard to death now support sparing his life. So does a former federal prosecutor who defended Bernard’s death sentence on appeal.

Bernard and his lawyers are fighting a desperate battle to avoid execution: He has a clemency petition pending before President Donald Trump and has filed motions in federal court.

If his execution date gets pushed back even six weeks, his fate would be determined by a new administration led by Joe Biden, who says he opposes the death penalty.

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CHANGING PERCEPTION, CHANGING THE LAW

With 2.3 million people behind bars, the United States is the world’s largest jailer.

Yet after decades of holding this dubious honor, many Americans have begun to question what Fordham law professor John Plaff calls “this massive experiment in punitive social control.” Decarceration is being discussed in states across the country.

In the debate over decarceration, advocates have realized that it is not enough to merely push for “low-level nonviolent drug offenders” to be let out. Decarceration defies such “easy fixes,” Plaff said.

Rather, in order to reduce our prison population, we must change how we respond to violent crimes. As a recent article in Slate argued, “replacing the death penalty with death in prison is not true progress.”

A growing movement is calling for an end to harsh sentencing, and in particular, an end to “death by incarceration.” Sometimes called a push to “Drop LWOP” or determination to “bring them home,” in recent years, education campaigns have taken hold to end what many call “perpetual punishment.”

From Vermont to California, activists are finding pathways to upend the “the other death sentence”—a fractured practice known as life without parole.

Debunking LWOP

Life without parole, explains Ashley Nellis of the Washington, DC, nonprofit the Sentencing Project, is often touted as a “humane” replacement for the death penalty. Indeed, all 21 states that have abolished the death penalty have LWOP as their “preferred alternative” (states with capital punishment also have LWOP). Alaska is the only state that does not permit LWOP, yet it allows a functionally equivalent sentence of 99 years.

Life in prison assumes that someone will “grow old and die naturally,” said California Crime Victims for Alternatives to the Death Penalty spokesperson Judy Kerr, whose brother was murdered. As James Ridgeway and Jean Casella, co-founders of Solitary Watch, argue, such sentences are hardly humane.

When Connecticut abolished its death penalty statute in 2012, it voted to replace it with life in solitary confinement, enacting what Ridgeway and Casella call “state-sanctioned torture.” Last year, a federal judge ruled the prisoners serving this sentence could sue the state. Meanwhile, the top European human rights court has declared life without parole “inhuman and degrading” and a violation of the European Convention of Human Rights.

Political scientist Marie Gottschalk wrote in Prison Legal News that LWOP prisoners, the majority of whom are black, suffer “death in slow motion,” plagued by substandard care and high rates of suicide.

According to Columbia University’s Center for Justice, “ailments that accompany aging are compounded by the effects of incarceration, resulting in a prison population that has higher rates of chronic and communicable diseases, greater risk of mental illness, dementia, and other cognitive impairments.”

Critics argue that LWOP is not only inhumane, but also unnecessary. It does not deter crime or make us safer. Lifers are highly unlikely to return to crime once released.

A 2011 study by the Stanford Criminal Justice Center found that out of 860 men, less than 1% committed another felony, and none committed another murder. A landmark court case, Unger v. Maryland, showed that states can safely release those who have been convicted of violent crimes and served more than 30 years.

Even victims of crime question the punishment of death by incarceration.

Findings by the Alliance of Justice reveal that six out of 10 people harmed by crime prefer shorter prison sentences for those who have harmed others, and prefer treatment services to incarceration by a two-to-one margin.

Yet, despite these findings and historic crime lows, the number of people serving life without the possibility of parole in the United States continues to rise, quadrupling since 1992. As of 2016, there were 53,290 people serving such sentences—one in every 28 prisoners—and the majority of LWOP prisoners in most states and in the federal system are people of color.

Today, these prisoners are speaking out.

People who have served extreme sentences, their loved ones, and the families of those harmed by violence are taking the lead to end perpetual punishment. Joined by former prosecutors, progressive district attorneys, and others in the criminal legal system, they are challenging what Plaff calls our need for “brutal punitiveness.”

JEAN TROUNSTINE