Strong showing of intellectual disability prompts stay of federal execution

A federal judge in Indiana has granted a Louisiana man’s motion to stay his execution pending resolution of his habeas action, finding the man made a strong showing that he is intellectually disabled and as a result, the Federal Death Penalty Act forbids his execution.

Alfred Bourgeois, one of five inmates facing potential execution dates at the high-security U.S. Penitentiary in Terre Haute, was convicted and sentenced to death in 2004 after he brutally abused and murdered his then-2-year-old daughter. An appeal of his conviction and sentence were denied, as well as his motion to vacate pursuant to 28 U.S.C. § 2255 in the Southern District of Texas.

In July 2019, the Department of Justice set Bourgeois’ execution date for January 2020, one of five federal executions the Department scheduled. Bourgeois responded by filing the instant habeas petition pursuant to 28 U.S.C. § 2241 on August 15, 2019. He also filed a motion to stay his execution pending resolution of the action on the same date.

The motion to stay remained pending, however, because Bourgeois’ execution was stayed by the Washington, D.C., Circuit Court of Appeals prior to his scheduled execution. The United States appealed the stay entered in the Execution Protocol Litigation, and the appeal is pending before the United States Court of Appeals for the D.C. Circuit.

Meanwhile, the U.S. District Court for the Southern District of Indiana, Terre Haute Division, concluded on Tuesday that Bourgeois made a strong showing that he is likely to succeed on the merits of his FDPA claim, according to an order issued by Chief Judge Jane Magnus Stinson. Specifically, the chief judge found the respondents waived any contention that Bourgeois’ FDPA claim cannot proceed in the § 2241 action.

“He argues that both the Eighth Amendment, as established in (Atkins v. Virginia, 536 U.S. 304 (2002)), and the FDPA preclude his execution because he is intellectually disabled. Mr. Bourgeois specifically argues both in his habeas petition and in his motion to stay that his FDPA claim can proceed under § 2241,” the federal court wrote.

Magnus-Stinson found that the combined response to Bourgeois’ petition and motion to stay argues at length that his Atkins claim does not meet the Savings Clause and thus cannot proceed in a § 2241 action. However, the federal judge noted that the respondents “fail to even mention Mr. Bourgeois’s FDPA claim, let alone explain why it cannot be brought in a § 2241.”

“Respondent’s failure to address Mr. Bourgeois’s FDPA claim is both inexplicable and inexcusable, not only because of the stakes of this litigation, but also because there is no binding legal authority regarding whether FDPA claims can proceed in a § 2241 action,” Magnus-Stinson wrote. “The Court may have benefitted from a response from Respondent, but that opportunity has now been lost.”

Additionally, the federal court found the respondents failed to seek leave to file a surreply addressing the claim, leading the court to infer that the respondent’s failure to address the claim was more intentional than inadvertent. It therefore deemed that “any argument that Mr. Bourgeois’s FDPA claim cannot proceed under § 2241 waived.”

On the issue of his intellectually disability, the federal court found that Bourgeois met all three criteria, including his two IQ tests resulting in appropriately adjusted IQ scores of 68 and 70, the presentation of compelling evidence that his adaptive performance falls more than two standard deviations below the mean in all three adaptive skill sets, and that the onset of his deficits occurred when he was a minor.

“To be clear, the Court has not conclusively determined that Mr. Bourgeois is intellectually disabled, only that he has made the strong showing necessary to warrant a stay of his execution pending resolution of this issue. The Court can only determine whether Mr. Bourgeois is intellectually disabled following a hearing on the question,” Magnus Stinson wrote.

It further found that Bourgeois faces an irreparable injury absent a stay and that the issuance of a stay will not substantially injure the government. The federal court also noted that the public interest favors ensuring that his execution is lawful, despite the government’s assertion that, as a general matter, the United States has a “strong interest” in “proceeding with its judgment.”

“If the United States’ interest in proceeding with its judgment was as strong as Respondent suggests, it would not have waited several years before setting Mr. Bourgeois’s execution date. Thus, the United States’ own delay in scheduling Mr. Bourgeois’s execution shows that its interest in enforcing its judgment is not as strong as it suggests,” the federal court wrote.

Lastly, it found Bourgeois has not unnecessarily delayed in bringing his claims because he did not wait several years before bringing them. The federal court therefore stayed Bourgeois’ execution until further order, noting that a separate order staying his execution shall also issue.

“Respondent and Respondent’s counsel are responsible for ensuring that all actors who would have any involvement in Mr. Bourgeois’s execution comply with the stay issued on this date, including the Warden of the United States Penitentiary in Terre Haute, Indiana, and the United States Marshal for this District,” it concluded. “The Court must hold a hearing on the merits of Mr. Bourgeois’s claims to determine whether they are ultimately meritorious. The hearing will be set by separate order.”

The case is Alfred Bourgeois v. Warden., et al, 2:19-cv-00392.