The federal government plans to execute Alfred Bourgeois on December 11. But, as we argue in an amicus brief urging the Supreme Court to step in, the government cannot execute Bourgeois until a court determines if he has an intellectual disability. The reason his execution cannot go forward it simple: it is prohibited by the plain language of the Federal Death Penalty Act.
The statute uses the present tense to prevent implementing a death sentence on someone who “is” intellectually disabled at the time of execution—in the same clause that it prohibits the execution of a person who “is” pregnant. The words Congress chooses to enact into law have meaning, and in this case it’s clear that Congress chose to ensure that someone who is intellectually disabled cannot be executed.
Based on current medical and legal standards, there is little doubt that Alfred Bourgeois is intellectually disabled and therefore ineligible for the death penalty. The Seventh Circuit Court of Appeals ruled that this fact does not matter because he already had one opportunity to litigate his intellectual disability claim in court. But the Seventh Circuit is wrong: The court that heard his case nearly a decade ago used an outdated definition of intellectual disability that did not even take into account medical diagnostic standards. Since then, the Supreme Court has repeatedly affirmed that such standards are inadequate. The death penalty law requires the courts to reevaluate Bourgeois’ claim under current standards.