Bourgeois v. Watson

Cite as: 592 U. S. ____ (2020) 1

S
OTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 20A104 (20–6500)
_________________
ALFRED BOURGEOIS v. T. J. WATSON,
WARDEN,
ET AL.
ON APPLICATION FOR STAY AND PETITION FOR WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[December 11, 2020]
The application for stay of execution of sentence of death
presented to J
USTICE BARRETT and by her referred to
the Court is denied. The petition for a writ of certiorari is
denied.
J
USTICE SOTOMAYOR, with whom JUSTICE KAGAN joins,
dissenting from the denial of certiorari and application for
stay.
The Federal Death Penalty Act (FDPA) provides that “a
sentence of death shall not be carried out upon a person who
is mentally retarded.” 18 U. S. C. §3596(c). The Court to-
day allows the execution of Alfred Bourgeois to proceed
even though Bourgeois, who has an IQ between 70 and 75,
argues that he is intellectually disabled under current clin-
ical standards. I would grant his petition to address
whether the FDPA prohibits his execution.
The District Court in this case applied currently prevail-
ing diagnostic standards to find that Bourgeois had made a
“strong showing” that he is intellectually disabled. See
Bourgeois v. Warden, 2020 WL 1154575, *4 (SD Ind., Mar.
10, 2020). The Court of Appeals for the Seventh Circuit re-
versed. 977 F. 3d 620, 638 (2020). It did not do so because
Bourgeois is fit to be executed under the FDPA, but rather
because, nearly a decade ago, a different Federal District
Court found that Bourgeois was not intellectually disabled

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S
OTOMAYOR, J., dissenting
under the standards in place at that time. See United
States v. Bourgeois, 2011 WL 1930684 (SD Tex., May 19,
2011). That court, however, relied heavily on its own lay
observations and assumptions about how people with intel-
lectual disabilities act and what they are capable of doing.
See, e.g., id., at *29 (“Bourgeois graduated from high
school”); id., at *43 (“[H]e can engage in the give-and-take
of normal conversation”). Both this Court and the medical
community have since squarely rejected that type of inex-
pert analysis. See, e.g., Moore v. Texas, 581 U. S. ___, ___
(2017) (slip op., at 15) (holding it error to rely on “lay per-
ceptions of intellectual disability”); Moore v. Texas, 586
U. S. ___, ___ (2019) (per curiam) (slip op., at 7) (finding the
state court erred in relying on the defendant’s ability to pro-
vide “
‘coherent’ testimony”); Pet. for Cert. 17–18 (citing ex-
pert groups debunking these stereotypes).
In the Seventh Circuit’s view, even if Bourgeois is intel-
lectually disabled under today’s standards, he is nonethe-
less procedurally barred from raising that claim anew due
to the federal habeas statute’s general prohibition on sec-
ond or successive petitions. 28 U. S. C. §2255(h). As Bour-
geois notes, however, that statute permits successive ha-
beas petitions if the first was “inadequate or ineffective to
test the legality of [an inmate’s] detention.” §2255(e). Bour-
geois contends that his first petition was inadequate to de-
termine whether he “is” an intellectually disabled person
against whom “a sentence of death shall not be carried out,”
§3596(c), because his 2011 intellectual disability claim
could not be assessed under the materially different stand-
ards now prevailing at the time of his execution.
The FDPA’s text and structure lend significant support
to Bourgeois’ argument that the FDPA directs courts to look
to current standards. Most limitations in the FDPA apply
to imposing a death sentence, not implementing it. See,
e.g., 18 U. S. C. §3591 (“[N]o person may be sentenced to
death who was less than 18 years of age at the time of the

Cite as: 592 U. S. ____ (2020) 3

S
OTOMAYOR, J., dissenting
offense”); §3591(a)(2) (crimes must be committed “inten-
tionally” for a person to be “sentenced to death”); §3592(a)
(listing mitigating factors to be considered “in determining
whether a sentence of death is to be imposed”); §3593 (list-
ing procedural requirements for sentencing hearings). By
contrast, the FDPA separately forbids the execution of cer-
tain, limited categories of people: the pregnant, the men-
tally incapacitated, and the intellectually disabled. These
prohibitions appear in a section titled “Implementation of a
sentence of death,” and are phrased in the present tense: “A
sentence of death shall not be carried out upon” a woman
“while she is pregnant,” “a person who, as a result of a men-
tal disability, lacks the mental capacity to understand the
death penalty,” and “a person who is mentally retarded.”
§§3596(b), (c).
The Government counters that, because intellectual dis-
ability, unlike pregnancy and capacity, is a permanent con-
dition evidently present by the time a person reaches the
age of majority, a federal prisoner raising an intellectual
disability claim needs only one opportunity to prove his
case. But while a prisoner’s intellectual disability may not
change, the medical standards used to assess that disability
constantly evolve as the scientific community’s understand-
ing grows. See Moore, 581 U. S., at ___, (slip op., at 17)
(“Reflecting improved understanding over time, . . . current
[clinical] manuals offer the best available description of how
mental disorders are expressed and can be recognized by
trained clinicians” (internal quotation marks omitted)); see
also Hall v. Florida, 572 U. S. 701, 712–714 (2014).
Bourgeois thus puts forth a strong argument that federal
prisoners sentenced to death should be able to file new ha-
beas petitions if they can show a potentially dispositive
change in the diagnostic landscape following their first pe-
tition. The Seventh Circuit’s position, on the other hand,
seemingly allows the United States to “carr[y] out” a death
sentence upon a person who “is” indisputably intellectually

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S
OTOMAYOR, J., dissenting
disabled under current diagnostic standards, contrary to
the FDPA’s express terms. 18 U. S. C. §3596(c).
Without the benefit of full briefing and argument, I can-
not say for certain whether Bourgeois is correct. But that
is not the test for whether this Court should grant certio-
rari. Bourgeois presents a serious question that is likely to
recur. Waiting to grant certiorari may mean permitting the
illegal execution of people with intellectual disabilities. I
would therefore resolve this open legal issue before sanc-
tioning Bourgeois’ execution. I respectfully dissent from
the denial of certiorari.