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`1
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`Cite as: 592 U. S. ____ (2020)
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`SOTOMAYOR, 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 JUSTICE BARRETT and by her referred to
`the Court is denied. The petition for a writ of certiorari is
`denied.
` JUSTICE 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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`2
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`BOURGEOIS v. WATSON
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`SOTOMAYOR, 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
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`3
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`Cite as: 592 U. S. ____ (2020)
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`SOTOMAYOR, 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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`4
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`BOURGEOIS v. WATSON
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`SOTOMAYOR, 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.
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`