Citing COVID-19, Governor Grants Reprieve to Tennessee Death-Row Prisoner Pervis Payne

Citing the coro­n­avirus pan­dem­ic, Tennessee Governor Bill Lee has grant­ed a tem­po­rary reprieve to death-row pris­on­er Pervis Payne, halt­ing his sched­uled December 3, 2020 exe­cu­tion. The exe­cu­tion was the last sched­uled by any state in 2020, assur­ing that states will car­ry out few­er exe­cu­tions in 2020 than in any oth­er year since 1983.

Lee issued a tem­po­rary reprieve on November 6, 2020 that will remain in effect until April 9, 2021. A short state­ment released by the gov­er­nor in con­nec­tion with the reprieve order stat­ed that he had grant­ed the reprieve ​“due to the chal­lenges and dis­rup­tions caused by the COVID-19 pandemic.”

Issues in Payne’s Case

Payne had sought to halt his exe­cu­tion on mul­ti­ple grounds, draw­ing wide sup­port from the African-American com­mu­ni­ty in Memphis and Black leg­is­la­tors, legal asso­ci­a­tions, and faith lead­ers across Tennessee. His lawyers have alleged that Shelby County pros­e­cu­tors, who have a his­to­ry of mis­con­duct in cap­i­tal cas­es, vio­lat­ed Payne’s rights by with­hold­ing excul­pa­to­ry evi­dence and mak­ing racist argu­ments to the jury dur­ing his rial. The tri­al court has ordered DNA test­ing on recent­ly dis­cov­ered phys­i­cal evi­dence that pros­e­cu­tors had with­held from the defense at the time of tri­al. Results of the test­ing, which Payne’s lawyers and the Innocence Project have argued may prove his inno­cence, are pending.

Payne also has alleged that his exe­cu­tion would be uncon­sti­tu­tion­al because he has intel­lec­tu­al dis­abil­i­ty. In 2002, the U.S. Supreme Court ruled in Atkins v. Virginia that exe­cut­ing indi­vid­u­als with intel­lec­tu­al dis­abil­i­ty con­sti­tutes cru­el and unusu­al pun­ish­ment, in vio­la­tion of the Eighth Amendment. However, Tennessee pro­vides no judi­cial mech­a­nism for death-row pris­on­ers who com­plet­ed their state court appeals before Atkins was decid­ed to present evi­dence of their intel­lec­tu­al dis­abil­i­ty. The Tennessee leg­isla­tive black cau­cus, which on November 4 intro­duced leg­is­la­tion to cre­ate that mech­a­nism, asked Governor Lee to put off Payne’s exe­cu­tion so the leg­is­la­ture can con­sid­er the bill when it recon­venes in 2021.

In a vir­tu­al press con­fer­ence announc­ing the intro­duc­tion of the bill, Memphis state rep­re­sen­ta­tive G.A. Hardaway Sr. said the bill would ​“allow the state and its cit­i­zens to abide by the Constitution and pro­vide … jus­tice for Mr. Payne [and] those in sim­i­lar sit­u­a­tions.” ​“We are on the verge of mur­der­ing Pervis Payne and not allow­ing him the oppor­tu­ni­ty to see jus­tice. He’s still a cit­i­zen of these United States and he deserves … the oppor­tu­ni­ty to pur­sue jus­tice,” Hardaway said. 

Hardaway said he antic­i­pates bipar­ti­san sup­port for the bill. 

Payne’s lawyers addi­tion­al­ly asked Governor Lee to delay the exe­cu­tion because of the impos­si­bil­i­ty of mean­ing­ful­ly inves­ti­gat­ing and lit­i­gat­ing the issues in his case and the sig­nif­i­cant pub­lic health risks of going for­ward with an exe­cu­tion dur­ing an uncon­trolled pan­dem­ic. Using iden­ti­cal lan­guage, Lee grant­ed a reprieve of exe­cu­tion to Harold Nichols on July 17, 2020 based on coronavirus concerns.

In a state­ment released November 6, Payne’s defense team praised the Governor’s order. Assistant fed­er­al defend­er Kelley Henry said: ​“Governor Lee was right to delay Pervis Payne’s exe­cu­tion due to the Covid-19 cri­sis. Bringing wit­ness­es into the prison is unsafe for them, the staff, and the pris­on­ers.” The addi­tion­al time, she said, ​“will give the Tennessee Legislature the oppor­tu­ni­ty to pass bi-par­ti­san leg­is­la­tion to allow Mr. Payne’s and oth­ers’ claims of intel­lec­tu­al dis­abil­i­ty to be heard in court.”

State Executions in 2020

Payne’s exe­cu­tion was the last sched­uled by any state to be car­ried out in 2020. States have con­duct­ed a total of sev­en exe­cu­tions in 2020, the fewest in any year since the five exe­cu­tions car­ried out in 1983. Five states have con­duct­ed exe­cu­tions this year, match­ing 2016 and 1983 as the fewest in 37 years. The fed­er­al gov­ern­ment did not car­ry out exe­cu­tions in either of those years. The only years in which few­er states put pris­on­ers to death since exe­cu­tions resumed in the U.S. in 1977 were 1978 and 1980, with no exe­cu­tions; 1977 and 1981, with one each; and 1979 and 1982, with two each.

The his­tor­i­cal­ly low exe­cu­tion num­bers are attrib­ut­able in sig­nif­i­cant mea­sure to the impact of the COVID-19 pan­dem­ic on state judi­cial sys­tems. However, before the pan­dem­ic hit, the U.S. was on course for its sixth con­sec­u­tive year of few­er than 30 exe­cu­tions, after peak­ing at 98 exe­cu­tions in 1999.