Alfred Bourgeois, who had been on death row for 15 years, was executed by the US government Friday after the US Supreme Court rejected a last-minute application for a stay. He was the second federal prisoner to be executed by federal authorities in just two days. 

Both cases were surrounded by uncertainty. Bourgeois’s appeal claimed he had an IQ of 75 and was intellectually disabled. Lower courts allegedly relied on their own non-expert judgment and stereotypes of people with intellectual disabilities. 

Justices Elena Kagan and Sonia Sotomayor dissented from the majority’s rejection of Bourgeois’stay applicationl. They argued that it was unconstitutional to carry out the death sentence under the Federal Death Penalty Act‘s provision prohibiting the death penalty for people with intellectual disabilities. They also acknowledged that the criteria for determining intellectual disability have changed since Bourgeois’ trial.

A 2017 case ruled that courts cannot rely on “lay perceptions of intellectual disability.” Under this standard, judges cannot discount legitimate evidence of a disability, such as a person’s IQ, based on their own interpretations. The two dissenting justices said the appeal should have been granted because Bourgeois’ trial might have had a different outcome under the new rule.  

Brandon Bernard, the youngest federal prisoner to be executed in 70 years, was executed on Thursday despite a six-page dissent from Justice Sotomayor. He was convicted of a crime that he was involved with at the age of 18. Evidence had since come to light that invalidated the basis of his death penalty sentencing.

The Trump administration broke a 130-year precedent against executing federal prisoners during the lame-duck period. By President-elect Joe Biden’s inauguration day, five prisoners will have been executed since the election. 

Four out of the five federal prisoners to be executed have been Black men, including Bernard and Bourgeois. Critics say the racist undertones of these cases suggest it is time to reconsider the legitimacy of the death penalty.