Brandon Bernard is scheduled to be executed today. 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 Bernards 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 .

Last week, Bernard dialed into a court hearing on Zoom from death row at the federal prison in Terre Haute, Indiana. Judge Alan Albright, who was nominated to the U.S. District Court for the Western District of Texas by Trump, started the call by complimenting one of Bernards lawyers on the guitars hanging on the wall behind him. One of the guitars turned out to be a baritone ukulele. After a couple of minutes of small talk, they got to the matter at hand: whether Bernard would be killed the following week.

Federal public defender John Carpenter argued on behalf of Bernard that the government cannot legally execute him because he has not yet exhausted all of his appeals. In 2018, Bernards lawyers discovered that, years earlier, the government had withheld evidence during his trial that may have helped Bernard, a form of prosecutorial misconduct known as a Brady violation. After being denied relief by lower courts, Bernard has until April to seek review from the Supreme Court, which his lawyer said he plans to do if he lives.

Federal prosecutor Mark Frazier argued that Bernard already had several opportunities to challenge his conviction and review his sentence and that he does not have any pending matter before the court that would block the government from killing him. As the lawyers argued over legal technicalities, Bernard watched silently, his eyes angled forward, slightly down. When his glasses slid down his nose, he raised his cuffed hands awkwardly to push them into place.

After about an hour, Albright made his decision: The execution could go forward as planned. Bernard was lucky to have such competent and dedicated lawyers, Albright said, adding that it gave him no joy to make his ruling.

So, the judge said, I wish you the very best of luck, to both sides.

Bernard was part of a group of people involved in a botched carjacking plot in 1999 that ended in the killing of Todd and Stacie Bagley in Central Texas. Bernard was not present when his friends abducted the Bagleys, and he was not the one to shoot them dead. Two of the people involved, who were at least as culpable in the Bagleys deaths as Bernard, were minors at the time of the crime and received 20-year sentences, which they have since completed. Because Bernard was 18, just a little older than his friends, he was eligible for the death penalty.

The scheduled execution is part of a wave of rushed executions by the Trump administration during its final weeks in power. After a 17-year pause in federal executions, the result of legal challenges to the practice and drug availability issues, the government resumed carrying out the death penalty in July, in the middle of the coronavirus pandemic. Since then, the Trump administration has executed eight people including Christopher Vialva , Bernards co-defendant, who shot the victims when he was 19. One of the executions took place after Trump lost his reelection to Biden, a Democrat who opposes capital punishment. The Trump administration is trying to kill five more people , including Bernard, before Bidens Jan. 20 inauguration. This is the first time since 1889 that a federal execution has been carried out by an outgoing administration after it lost an election.

Carrying out executions during the pandemic puts the people who live and work in the prison as well as the surrounding community at an increased risk of contracting COVID-19. Because of limitations on travel, it is difficult for people on death row to meet with their lawyers and prepare potentially lifesaving clemency petitions and litigation. It also puts the friends and family of the condemned in an impossible situation: In order to bear witness to the killing, people must assume the risk of contracting a disease that could kill them.

When U.S. Attorney General William Barr announced plans to resume federal executions, he claimed the punishment was reserved for the worst criminals . Thats not true. Some of the people targeted for execution ended up on death row after being represented by ineffective court-appointed lawyers. Some have an intellectual disability or a mental illness that was untreated at the time of their crime. Some had just barely reached legal adulthood when they were sentenced to death. Relative to the U.S. population, the group is disproportionately Black, a reminder of the racist origins of the death penalty .

Bernard, who is Black, was a churchgoing, family-oriented teen with no previous violent criminal history when he was sentenced to death by a nearly all-white jury several of whom changed their minds about the appropriate punishment after learning more information about the case. Bernard expressed remorse immediately after the crime and has spent the past two decades trying to encourage young people to learn from his mistakes.

He is not by any measure the offender for whom the average person contemplates the death penalty, Bernards lawyers wrote in his clemency petition. Brandon Bernard is someone who should not be on Death Row, and would not be if the system had not misfired.