Memphis Prosecutors Concede Pervis Payne Ineligible for Death Penalty Because of Intellectual Disability

After years of seek­ing to exe­cute Tennessee death-row pris­on­er Pervis Payne (pic­tured) for a dou­ble-mur­der he has long insist­ed he did not com­mit, the Shelby County District Attorney​’s office has con­ced­ed that Payne is inel­i­gi­ble for the death penalty.

In a motion filed in a Memphis tri­al court on November 18, 2021, the dis­trict attorney’s office with­drew its request for a hear­ing to con­test Payne’s claim that his exe­cu­tion would vio­late the con­sti­tu­tion­al pro­hi­bi­tion against cru­el and unusu­al pun­ish­ment because he is intel­lec­tu­al­ly dis­abled. District Attorney Amy Weirich released a state­ment in con­nec­tion with the motion say­ing her office would no longer con­test Payne’s inel­i­gi­bil­i­ty for the death penal­ty because a pros­e­cu­tion men­tal health expert who recent­ly exam­ined Payne ​“could not say that Payne’s intel­lec­tu­al func­tion­ing is out­side the range for intellectual disability.” 

A hear­ing on Payne’s intel­lec­tu­al dis­abil­i­ty was sched­uled to begin on December 13, 2021. He has been on death row since March 1988 on charges that he had raped and mur­dered Charisse Christopher in 1987, also stab­bing to death her 2‑year-old daugh­ter, Lacie, and seri­ous­ly wound­ing her 3‑year-old son, Nicholas. 

Payne’s defense team wel­comed the prosecution’s action but remained stead­fast in their efforts to obtain his free­dom. ​“Our proof that Pervis is intel­lec­tu­al­ly dis­abled is unas­sail­able, and his death sen­tence is uncon­sti­tu­tion­al,” said assis­tant fed­er­al defend­er Kelley Henry, Payne’s lead coun­sel. ​“The state did the right thing today by not con­tin­u­ing on with need­less lit­i­ga­tion. … We how­ev­er will not stop until we have uncov­ered the proof which will exon­er­ate Pervis and release him from prison.”

Weirich’s con­ces­sion of Payne’s inel­i­gi­bil­i­ty for the death penal­ty comes after years of seek­ing to exe­cute him with­out a hear­ing on the issue. The United States Supreme Court ruled in Atkins v. Virginia in 2002 that the death penal­ty was an uncon­sti­tu­tion­al­ly dis­pro­por­tion­ate pun­ish­ment for indi­vid­u­als with intel­lec­tu­al dis­abil­i­ty. Payne repeat­ed­ly attempt­ed to obtain judi­cial review of his intel­lec­tu­al dis­abil­i­ty claim, but Tennessee law pro­vid­ed no mech­a­nism to raise the issue for pris­on­ers whose death sen­tences had already been upheld on appeal before Atkins was decided. 

In February 2020, the Tennessee Supreme Court grant­ed state pros­e­cu­tors’ appli­ca­tions for exe­cu­tion dates for Payne and Byron Black, despite evi­dence that both men are intel­lec­tu­al­ly dis­abled. The court stayed Black’s exe­cu­tion in June 2020 on an unre­lat­ed claim that he had become men­tal­ly incom­pe­tent, and, cit­ing COVID con­cerns, Governor Bill Lee on November 6, 2020 issued a tem­po­rary reprieve to Payne, who had been sched­uled for exe­cu­tion on December 3, 2020.

While Payne’s exe­cu­tion was pend­ing, the Tennessee leg­isla­tive black cau­cus announced plans to intro­duce a bill, inspired by Payne’s case, that would cre­ate a pro­ce­dur­al mech­a­nism for death-row pris­on­ers to present their intel­lec­tu­al dis­abil­i­ty claims in the Tennessee courts. The leg­is­la­tors intro­duced the bill on November 4, 2020 and both hous­es of the leg­is­la­ture passed it by over­whelm­ing mar­gins in April 2021. One day after Governor Lee signed the bill into law, 

Payne’s lawyers filed a peti­tion in the Shelby County Criminal Court chal­leng­ing his eli­gi­bil­i­ty for the death penalty.

Instead of pro­ceed­ing to a hear­ing on Payne’s intel­lec­tu­al dis­abil­i­ty claims, Weirich decid­ed to aban­don the death penal­ty in his case and seek to have him resen­tenced to two con­sec­u­tive life sen­tences. ​“We can’t change the facts and we can’t change the law,” she said. ​“So today, after weigh­ing the total­i­ty of cir­cum­stances, we have filed notice with the Criminal Court that the state is here­by with­draw­ing its request for a hear­ing on the issue of intellectual disability.” 

“Pervis was com­plete­ly shocked,” said Henry. ​“I’m not sure that it has real­ly set in for him yet, but he was also very grate­ful to all of his sup­port­ers and his legal team and to his fam­i­ly. [His sis­ter] Rolanda [Holman] and [Attorney] Kimkea [Harris] and I were on the phone togeth­er and each shared tears of joy.”

Henry told the Death Penalty Information Center that Payne was not acqui­esc­ing to the coun­ty pros­e­cu­tors’ asser­tion that he should receive con­sec­u­tive life sen­tences. Counsel intends to ask the court to impose con­cur­rent life sen­tences for the mur­ders. ​“The court will have to decide” the sen­tence, Henry said.

Henry said the defense would con­tin­ue to work to exon­er­ate Payne, who was con­vict­ed in a racial­ly charged case taint­ed by pros­e­cu­to­r­i­al mis­con­duct. At tri­al, Shelby County pros­e­cu­tors assert­ed, with­out evi­dence, that Payne was a young Black man on drugs who stabbed Christopher, a white woman, to death after she spurned his sex­u­al advances. Payne, the son of a preach­er, did not use drugs, and police refused his mother’s request to con­duct a blood test to prove he had no drugs in his sys­tem. DNA test­ing of evi­dence that had been with­held from the defense for decades found the pres­ence of an uniden­ti­fied male’s DNA on the han­dle of the mur­der weapon. Despite a bloody crime in which the vic­tims col­lec­tive­ly were stabbed more than 80 times, Payne’s DNA was not present on the han­dle of the weapon.