The SCOTUS voted to allow the federal government to execute Alfred Bourgeois despite the fact that he is intellectually disabled with an IQ measured between 70-75. Justice Sotomayor published a dissent joined by Justice Kagan.

The Federal Death Penalty Act clearly forbids the execution of a person who is “mentally retarded” (language from the statute). A federal district court found that Bourgeois had made a “strong showing” of intellectual disability but that was reversed by the 7th Circuit.

The 7th Circuit said that another court had found no intellectual disability in 2011. But that court relied on discredited observations and assumptions about people with intellectual disabilities in reaching its decision.

As Justice Sotomayor notes, “Both this Court and the medical community have since squarely rejected that type of inexpert analysis.” It is unconstitutional to use debunked assumptions and discredited medical theories in a legal determination of intellectual disability.

The 7th Circuit also ruled that Bourgeois was procedurally barred from raising a new claim of intellectual disability because he had already tried once before. The government argued that intellectual disability is a permanent condition and should have been raised sooner.

Justice Sotomayor points out the logical fallacy in that argument: “While a prisoner’s intellectual disability may not change, the medical standards used to assess that disability constantly evolve as the scientific community’s understanding grows.”

Sotomayor adds that the 7th Circuit’s position “seemingly allows the United States to carry out a death sentence upon a person who is indisputably intellectually disabled under current diagnostic standards.”

Sotomayor concludes that the Supreme Court’s failure to act “may mean permitting the illegal execution of people with intellectual disabilities.”