Editor’s note: This article has been updated with comment from Alfred Bourgeois’ attorney.
In a 7-2 decision, the 7th Circuit Court of Appeals on Tuesday rejected a federal death row inmate’s request for an en banc rehearing after a panel of the court in October refused to stay his execution due to his claimed mental incapacity.
Judges denied Alfred Bourgeois’ petition for rehearing or rehearing en banc in a two-page order in Alfred Bourgeois v. T.J. Watson, 20-1891.
Judges Diane Wood and Ilana Rovner dissented. Bourgeois is scheduled to die by lethal injection Dec. 11 at the U.S. Penitentiary in Terre Haute, according to the Department of Justice. He was convicted and sentenced to death in 2004 in the Southern District of Texas after he brutally abused and murdered his 2-year-old daughter.
Southern District of Indiana Chief Judge Jane Magnus-Stinson stayed Bourgeois’ death sentence, finding in March he is intellectually disabled and therefore the Federal Death Penalty Act forbids his execution.
The 7th Circuit reversed in October, finding that Bourgeois failed to meet the stringent requirements of the savings clause under 28 U.S.C. § 2255(e).
“The district court found that Bourgeois had met all four stay factors, but we only reach the first one: likelihood of success on the merits. The district court’s determination that Bourgeois was likely to succeed on the merits of his FDPA claim rested on a preliminary finding that the government had waived any argument that Bourgeois’s FDPA claim was not cognizable under § 2255(e)’s savings clause. That is where we part ways with the district court. We find that the government did not waive, or even forfeit, this argument. And even if it had forfeited the argument, we would excuse that forfeiture on these facts,” Circuit Court Judge Amy St. Eve wrote for the 7th Circuit panel.
In denying rehearing or rehearing en banc Tuesday, the per curiam opinion contains just three paragraphs. It noted that Wood “dissents from the denial of rehearing en banc, on the ground that in her view the petitioner is entitled to a hearing on his claim that his execution will violate the Federal Death Penalty Act, 18 U.S.C. § 3596(c), with whom Circuit Judge Rovner joins.”
Bourgeois’ attorney Vic Abreu issued a statement after the ruling calling on the U.S. Supreme Court to review the case.
“Mr. Bourgeois is a person with intellectual disability, and both the Constitution and the plain language of the Federal Death Penalty Act bar his execution,” Abreu said. “The jury that sentenced Mr. Bourgeois to death never learned that he was a person with intellectual disability because his trial lawyers did not present the evidence that was available to them. … Unfortunately, over the objection of two dissenting judges, the Court of Appeals has now ruled that because Mr. Bourgeois was previously denied relief, he could not seek further review of his claim. That ruling paves the way for Mr. Bourgeois to be executed without any court ever reviewing the evidence of his intellectual disability using proper scientific standards.”