The Coming Fight over the Federal Death Penalty

The federal death penalty in America, unused since 2003, is plainly constitutional. The most conservative Supreme Court in 80 years certainly will say so when next asked. So there is every reason to think that in the next year or so the federal “machinery of death” will begin to churn again in the age of Trump. But there still are vital limitations to the scope of capital punishment, restrictions set into law by recent Supreme Court precedent, and those limits are about to be tested by a new wave of litigation crashing into federal court in the wake of the administration’s announcement that it will begin executing federal prisoners once again.

An early challenge came last week in Terre Haute, Indiana, the site of the federal death row, where lawyers for a condemned inmate, Alfred Bourgeois, say he cannot be executed because he is “intellectually disabled.” No one contests his conviction, just the imposition of the death sentence against him following a jury trial in Texas in 2014. It’s not hard to understand why the Justice Department selected Bourgeois as one of the first five men it wants to execute. He “physically and emotionally tortured, sexually molested, and then beat to death his two-and-a-half-year-old daughter,” is how the feds’ press release puts it.

Bourgeois claims that his intellectual disability has never been evaluated under new Eighth Amendment standards imposed on states by the Supreme Court since 2014.

His lawyers say those new state standards, all designed to make it easier for the intellectually disabled to prevail on their claims, should spare his life. If their evidence of his disabilities is as profound as they claim, they’re right. Bourgeois claim that he’s too disabled to be killed by the government last was heard and rejected by both a federal trial judge in Texas in 2011 and by the 5th U.S. Circuit Court of Appeals in 2013. But when Bourgeois tried to rely on the new precedent a few years ago, when he proactively tried to spare himself from execution, the 5th Circuit rejected his claim. Because Bourgeois had already raised his disability claim once before, the 5th Circuit concluded, he was barred from raising it again.

Which means that unless a court intercedes between now and his scheduled January 2020 execution, Bourgeois may be killed by the government even though the Eighth Amendment, as now construed, precludes his execution. Even before the Justice Department responds to Bourgeois’s new motion, responds that is surely by arguing that Bourgeois does not merit the relief he seeks, the case presents itself as a potential example of the hollowness of the law.

Will the justices really permit the execution of a disabled man not because he hasn’t established his disability under current medical standards but rather because he’s raising the issue too late or for the second time? If so, the case may end up being less less about capital punishment and the Eighth Amendment’s “cruel and unusual” clause and more about the absurd reach of the Antiterrorism and Effective Death Penalty Act, a Clinton-era statute designed to limit the post-conviction appeals raised by federal prisoners.

It is likely this dispute ultimately will be resolved by the justices in Washington and the focus between now and then rests with three of the Court’s Republican appointees. Chief Justice John Roberts has been consistently inconsistent when it comes to this area of capital law and his vote likely will determine Bourgeois’ fate. Roberts was not on the Court in 2002 when it decided Atkins v. Virginia, the leading precedent here. In Atkins, the Court declared for the first time that the Eighth Amendment bars the execution of intellectually disabled prisoners whose cognitive functions would render their executions ‘cruel and unusual.”

Atkins was never what it seemed to be, however. Like other monumental constitutional rulings over the years (see, for example, Gideon v. Wainwright) the Court’s majority came up with a compromise in which it recognized a right but failed to guarantee a remedy. Atkins declared that no state could execute the intellectually disabled but then left it to officials in each state to implement their own standards for determining the definition of “intellectually disabled.” So the most aggressive capital states (like Florida and Texas) used cockamamie tests that virtually guaranteed executions for condemned inmates whose disabilities were on the margins.

Which meant that the Court was required, a decade or so after Atkins, to revisit its ruling. That gave us Hall v. Florida, a 2014 decision in which the Court’s majority, led by Justice Anthony Kennedy, rejected Florida’s categorical rule that any capital defendant deemed to have an IQ above 70 was presumptively beyond the reach of Atkins’ safe harbor. Justice Samuel Alito dissented in Hall, along with Roberts and Justice Clarence Thomas. In their view, the majority in Hall inappropriately elevated the views of professional psychiatrists over the views of state legislators who had ginned up Florida’s dubious standard for defining “intellectual disability.”

Hall gave guidance to Florida judges but did little to help officials in other states wrestling with the question of when a convicted murder was too intellectually disabled to be put to death. So the Court next took up the Atkins’ test in Moore v. Texas, a 2017 case involving convoluted standards used by Texas judges. Again the Court sided with a convicted murder, again Roberts dissented, and again he focused on what he saw as the Court’s judicial overreach. “Clinicians, not judges, should determine clinical standards; and judges, not clinicians, should de- termine the content of the Eighth Amendment,” the chief justice wrote.

Roberts clearly is comfortable with Atkins. But not with Court meddling in state interpretations of “disability.” What will that mean for Bourgeois, who like Moore was evaluated under Texas’ old, discredited standards? The case is not close on the merits. Bourgeois is entitled to the same rights, and remedies, as Moore. But if Roberts is so inclined he can always fall back on the damnable AEDPA, the statute that limits appellate review, and say that Bourgeois loses on procedural grounds before he even gets to the merits. That would be a shame, a tragedy, and an abdication of Roberts’ judicial obligations. But that doesn’t mean he won’t do it.

The spotlight on the case also will fall on the newest justices, Neil Goruch and Brett Kavanaugh, who were not on the Court for the Atkins, Hall, or Moore. Both Gorsuch and Kavanaugh were on the Court earlier this year, however, when the Court in an unsigned order again sided with Bobby Moore and against the Texas appellate judges who had tried to countermand the Court’s 2017 ruling in that case. But it’s hard to know what to make of either of their positions. Kavanaugh didn’t take one, for starters. He didn’t join Roberts’ concurrence in Moore II, which criticized the Texas court, or Alito’s dissent, which criticized his colleagues.

Gorsuch did weigh in. He signed onto Alito’s dissent. It’s possible that Gorsuch left himself wiggle room in Moore II to turn around in the Bourgeois case. It’s also possible that by joining Alito he was signalling his discomfort with the whole structure of the Court’s Atkins’ precedent. Gorsuch already has revealed his willingness to permit executions even where they would cause excruciating pain to the condemned. The smart money would bet on both he and Kavanaugh hewing to the chillingly cramped view Alito and Thomas take of the phrase “cruel and unusual punishment.” That might be bad news for Bourgeois, for the constitutional concept of “evolving standards of decency,” for an enlightened view of the Eighth Amendment, and for one of Justice Kennedy’s most important legal legacies.