Pervis Payne Petitions to Vacate His Death Sentence Under New Tennessee Intellectual Disability Law

One day after Governor Bill Lee signed a bill cur­ing a defect in Tennessee law that had pre­vent­ed death-row pris­on­ers from chal­leng­ing their death sen­tences on the basis of intel­lec­tu­al dis­abil­i­ty, Pervis Payne’s (pic­tured) lawyers asked a Memphis tri­al court to vacate his death sentence. 

On May 12, 2021, fed­er­al defend­ers rep­re­sent­ing Payne filed a Petition to Determine Ineligibility to be Executed in the Shelby County Criminal Court seek­ing that the court ​“declare that Mr. Payne is inel­i­gi­ble to be exe­cut­ed because he is intel­lec­tu­al­ly dis­abled.” Prior to the bill’s May 11 sign­ing, Tennessee lacked a mech­a­nism for pris­on­ers to lit­i­gate their inel­i­gi­bil­i­ty for the death penal­ty if their death sen­tences had already been upheld on appeal before the U.S. Supreme Court issued its 2002 deci­sion in Atkins v. Virginia declar­ing the death penal­ty uncon­sti­tu­tion­al for indi­vid­u­als with intellectual disability.

Pervis Payne was one of a dozen Tennessee death-row pris­on­ers who had been denied access to judi­cial review of their intel­lec­tu­al dis­abil­i­ty and faced pos­si­ble exe­cu­tion despite the uncon­sti­tu­tion­al­i­ty of their death sentences.

“Pervis Payne is indis­putably intel­lec­tu­al­ly dis­abled,” his peti­tion states. ​“Mr. Payne meets all three Atkins require­ments, as well as those of the Tennessee statute. He has sig­nif­i­cant­ly sub­av­er­age intel­lec­tu­al func­tion­ing, sig­nif­i­cant adap­tive deficits in each domain, and his dis­abil­i­ty man­i­fest­ed pri­or to age 18.” The peti­tion sup­ports Payne’s claim with IQ scores from stan­dard­ized tests of intel­lec­tu­al func­tion­ing that place Payne with­in the intel­lec­tu­al­ly dis­abled range; find­ings from two men­tal health experts who exam­ined Payne and con­clud­ed he is intel­lec­tu­al­ly dis­abled; and dec­la­ra­tions from fam­i­ly mem­bers, friends, teach­ers, and employ­ers describ­ing Payne’s impair­ments in numer­ous aspects of day-to-day func­tion­ing and attest­ing to the fact that these impair­ments were already present ear­ly in his childhood.

Legislative and faith lead­ers issued state­ments in sup­port of Payne’s peti­tion, ask­ing Shelby County District Attorney Amy Weirich not to con­test Payne’s fil­ing. Rep. G.A. Hardaway, chair­man of the Tennessee Legislative Black Caucus and co-spon­sor of the bill to mod­ern­ize the state’s intel­lec­tu­al dis­abil­i­ty law, said ​“The mot­to on the Shelby County District Attorney’s web­site is ​‘Do the right thing every day for the right rea­son.’ Well, now is the time to do the right thing. D.A. Weirich should join with the Memphis com­mu­ni­ty – her con­stituents – and agree that Pervis Payne is a per­son with intel­lec­tu­al dis­abil­i­ty. As such, his exe­cu­tion would be unconstitutional.” 

“We invite the District Attorney’s office to join the army of moral arc ben­ders, intent on bend­ing the moral arc of the uni­verse towards jus­tice,” Hardaway said.

Bishop David Allen Hall, Sr., Pastor of the Temple Church Of God In Christ in Memphis, said Payne ​“has been sit­ting on death row, wrong­ful­ly, for 33 years” and dur­ing that peri­od “[n]ever once did the State chal­lenge the fact that he is a per­son with intel­lec­tu­al dis­abil­i­ty. D.A. Weirich should not start now. Litigating this undis­put­ed fact would be a stun­ning waste of time and tax­pay­er mon­ey,” he said.

A December 2020 Death Penalty Information Center analy­sis of more than 130 cas­es in which courts have over­turned death sen­tences because of a death-row prisoner’s intel­lec­tu­al dis­abil­i­ty found that intel­lec­tu­al­ly dis­abled defen­dants of col­or — and par­tic­u­lar­ly African Americans — were dis­pro­por­tion­ate­ly like­ly to be sen­tenced to death. More than 80% of death-row pris­on­ers who were sub­se­quent­ly found to be inel­i­gi­ble for the death penal­ty because of intel­lec­tu­al dis­abil­i­ty are from com­mu­ni­ties of col­or. Two-thirds are Black. A DPIC analy­sis of death-row exon­er­a­tions, released in February 2021, also found that African-American defen­dants were dis­pro­por­tion­ate­ly wrong­ful­ly con­vict­ed and sen­tenced to death and dis­pro­por­tion­ate­ly the tar­gets of police and prosecutorial misconduct. 

Payne has con­sis­tent­ly main­tained his inno­cence in the mur­der of Charisse Christopher and her two-year-old daugh­ter. He was con­vict­ed in a racial­ly charged tri­al in which Shelby County pros­e­cu­tors assert­ed, with­out evi­dence, that he was a young Black man on drugs who stabbed Christopher to death after she spurned his sex­u­al advances. DNA test­ing of evi­dence that had been with­held from the defense 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.

Payne’s clemen­cy efforts have gar­nered wide­spread sup­port, includ­ing more than 600,000 sig­na­tures on a peti­tion cre­at­ed by The Innocence Project. Numerous reli­gious, legal, and civ­il rights orga­ni­za­tions have joined those efforts, 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.