Clemency Efforts for Pervis Payne Gain Widespread Support as Execution Reprieve Set to Expire

Clemency efforts on behalf of Tennessee death-row pris­on­er Pervis Payne (pic­tured) are surg­ing, as a peti­tion on his behalf by The Innocence Project had col­lect­ed more than 600,000 sig­na­tures by March 26, 2021 and social media cam­paigns sup­port­ing his cause con­tin­ue to attract increas­ing attention worldwide. 

Payne’s claims of inno­cence, intel­lec­tu­al dis­abil­i­ty, and racial bias have res­onat­ed with sup­port­ers from numer­ous reli­gious, legal, and civ­il rights orga­ni­za­tions, includ­ing the Tennessee Black Caucus of State Legislators, the ACLU of Tennessee, Bend the Arc, the Tennessee Association of Criminal Defense Lawyers, the Tennessee Catholic Bishops, Tennessee Conservatives Concerned About the Death Penalty, the Tennessee Disability Coalition, and the Ben F. Jones chap­ter of the National Bar Association. Notable pub­lic fig­ures such as civ­il rights advo­cate Martin Luther King III and for­mer fed­er­al judge and pros­e­cu­tor Ken Starr and celebri­ties such as actress Alyssa Milano have joined the call ask­ing Governor Bill Lee to com­mute Payne’s death sentence. 

In addi­tion to the Innocence Project peti­tion, a video on TikTok sup­port­ing his cause had received more than 9.3 mil­lion views as of March 29. 

In response to efforts by state pros­e­cu­tors to exe­cute Payne with­out review of his claim that he is inel­i­gi­ble for the death penal­ty because of intel­lec­tu­al dis­abil­i­ty, the Tennessee Black Caucus of State Legislators intro­duced leg­is­la­tion in both hous­es of the leg­is­la­ture that would cre­ate a mech­a­nism by which Payne and oth­ers could lit­i­gate those claims. The bills, pre­filed last November while Payne was fac­ing a December 3, 2020 exe­cu­tion date, were for­mal­ly intro­duced in February and are cur­rent­ly pend­ing in com­mit­tee. Citing coro­n­avirus con­cerns, Governor Lee grant­ed Payne a reprieve until April 9, 2021.

While the expi­ra­tion of the reprieve has added urgency to Payne’s appeal for clemen­cy, no new exe­cu­tion date has been scheduled.

A defect in Tennessee pro­ce­dur­al law pre­vents death-row pris­on­ers from peti­tion­ing the Tennessee courts to con­sid­er claims that they are intel­lec­tu­al­ly dis­abled if their con­vic­tions became final before the U.S. Supreme Court declared it uncon­sti­tu­tion­al to exe­cute indi­vid­u­als with intel­lec­tu­al dis­abil­i­ty. In February 2020, the Tennessee Supreme Court grant­ed pros­e­cu­tors’ appli­ca­tions to set exe­cu­tion dates for Payne and fel­low death-row pris­on­er Byron Black, despite the fact that both have IQs in the intel­lec­tu­al­ly dis­abled range. Citing coro­n­avirus con­cerns, the court lat­er stayed Black’s exe­cu­tion and Governor Lee grant­ed Payne a reprieve until April 9, 2010. 

Payne has con­sis­tent­ly main­tained his inno­cence in the mur­der of Charisse Christopher and her two-year-old daugh­ter. He says he heard cries for help from Christopher’s apart­ment and came upon the grue­some crime scene. During the course of try­ing to aid Christopher, he said, he touched the knife that was still lodged in her throat and got her blood on his clothes. Recent DNA test­ing sup­ports Payne’s account. It found that Payne’s DNA was present on the knife, but not on the han­dle where an uniden­ti­fied man’s DNA was detect­ed. That man’s DNA pro­file was not suf­fi­cient­ly com­plete to run through a nation­al DNA data­base and Shelby County Criminal Court Judge Paula Skahan said the pres­ence of the uniden­ti­fied man’s DNA was not suf­fi­cient to prove Payne’s innocence.

Payne also asserts that his con­vic­tion is taint­ed by racial bias and per­va­sive pros­e­cu­to­r­i­al mis­con­duct. In December 2019, when a court order pro­vid­ed defense coun­sel access to evi­dence held by the coun­ty clerk’s office, the defense for the first time dis­cov­ered the exis­tence of a blood-stained com­forter, bed­sheets, and pil­low. Assistant fed­er­al defend­er Kelley Henry, one of the lawyers who rep­re­sents Payne said, “[t]he pros­e­cu­tors ille­gal­ly hid this evi­dence for three decades. That’s just wrong.” 

At tri­al, pros­e­cu­tors char­ac­ter­ized Payne — a pastor’s son who had no pri­or record, no his­to­ry of drug use, and no his­to­ry of vio­lence — as a sex­u­al­ly preda­to­ry Black man, high on drugs, who attacked a white woman. Martin Luther III, son of Martin Luther King, Jr., wrote in an op-ed, ​“This racist trope echoed pow­er­ful­ly before a jury in a coun­ty where large num­bers of Black men were lynched for per­ceived affronts to white women.”

Henry said the atten­tion gar­nered by Payne’s case is unlike any oth­er case she has seen. ​“To have over half a mil­lion sig­na­tures on our peti­tion is just astound­ing, but it speaks to the injus­tice in the case and how it’s res­onat­ing with peo­ple,” she said. ​“They can under­stand the out­rage that we could pos­si­bly exe­cute some­one who’s inno­cent and dis­abled when racism played a key role in land­ing them on death row.” Henry cau­tioned that some of the atten­tion may be a result of a mis­con­cep­tion, erro­neous­ly report­ed by some com­men­ta­tors, that the expi­ra­tion of the reprieve on April 9 meant that Payne would face exe­cu­tion on that date.

In addi­tion to his inno­cence and mis­con­duct claims, Payne has sought to over­turn his death sen­tence based on intel­lec­tu­al dis­abil­i­ty. He is await­ing leg­isla­tive action on HB 1 and SB 1236 to pro­vide a legal pro­ce­dure for him to present evi­dence to the courts in sup­port of that claim.