Tennessee Attorney General’s Office Continues to Oppose Local Prosecutors Who Concede that Death-Row Prisoner Is Intellectually Disabled

The Tennessee Attorney General’s Office attempt­ed to pre­serve a tri­al court rul­ing deny­ing Byron Black​’s intel­lec­tu­al dis­abil­i­ty claim, argu­ing before the Tennessee Court of Criminal Appeals (TCCA) on November 8. Black’s attor­neys argue that a new law enti­tles him to relief from his death sen­tence because of his intel­lec­tu­al dis­abil­i­ty, and the Davidson County District Attorney’s Office agrees. However, a tri­al judge denied Black’s claim because it had been pre­vi­ous­ly raised when Tennessee was apply­ing uncon­sti­tu­tion­al stan­dards to deter­mine intellectual disability. 

At oral argu­ment, a pan­el of three TCCA judges pushed the attor­ney general’s office to jus­ti­fy the denial of Black’s claim on pro­ce­dur­al grounds. Judge Camille R. McMullen asked, ​“We have a con­sti­tu­tion­al duty not to exe­cute intel­lec­tu­al­ly dis­abled indi­vid­u­als, right? If we inter­pret the statute the way you’ve inter­pret­ed, we would­n’t be doing that, right?” 

Assistant Attorney General Katherine Decker claimed that the law was meant to be read nar­row­ly and that it does not include any­one who had a pri­or intel­lec­tu­al dis­abil­i­ty deter­mi­na­tion, even though the stan­dards applied in ear­ly cas­es has been deemed uncon­sti­tu­tion­al by recent U.S. Supreme Court rul­ings. Decker argued that it would be ​“non­sen­si­cal” to read the 2021 law to include all of the peo­ple cur­rent­ly on death row. Decker said that one shouldn’t receive end­less ​“bites at the apple.”

Assistant Federal Public Defender Kelley Henry argued on behalf of Black. Henry coun­tered the argu­ment about the breadth of the new law by not­ing that many of the 49 peo­ple on Tennessee’s death row do not have intel­lec­tu­al dis­abil­i­ty claims, so the law is already lim­it­ed. She also argued that it was inap­pro­pri­ate for the attor­ney general’s office to attempt to undo the local prosecutor’s stip­u­la­tion to Black’s intel­lec­tu­al dis­abil­i­ty. She said, ​“The state is the state. That does­n’t change because they got a new lawyer.”

Last year, Henry filed a motion for Black under a law enact­ed in 2021 as a result of suc­cess­ful advo­ca­cy for Pervis Payne. Black had pre­vi­ous­ly pur­sued an intel­lec­tu­al dis­abil­i­ty claim that was denied in a 2004 rul­ing. Davidson County District Attorney Glenn Funk, sup­port­ed by two state experts, agreed with Black’s claims of intel­lec­tu­al dis­abil­i­ty and Henry’s argu­ment that Black should be allowed judi­cial review under this new law as the pre­vi­ous rul­ing used an uncon­sti­tu­tion­al def­i­n­i­tion of intel­lec­tu­al dis­abil­i­ty; how­ev­er, Senior Judge Walter Kurtz denied Black’s motion on pro­ce­dur­al grounds not raised by prosecutors.

On June 1, 2022, Henry appealed, explain­ing that “[T]he tri­al court’s refusal to let [Black] prove [his intel­lec­tu­al dis­abil­i­ty] under cur­rent law, if allowed to stand, would per­mit the State to know­ing­ly and will­ful­ly vio­late the law by exe­cut­ing some­one who is intel­lec­tu­al­ly dis­abled.” As not­ed in Black’s brief, local pros­e­cu­tors agreed that Black would be found intel­lec­tu­al­ly dis­abled if allowed a hear­ing and con­ced­ed with a more appro­pri­ate life impris­on­ment sen­tence. The brief fur­ther argues that the pros­e­cu­tion ​“know­ing­ly and intel­li­gent­ly waived” any pro­ce­dur­al defens­es, and the tri­al court’s inde­pen­dent asser­tion of a defense that was explic­it­ly waived vio­lat­ed due process.

This isn’t the first-time state and local pros­e­cu­tors have been at odds in Tennessee death penal­ty cas­es. In 2019, then Attorney General Herbert Slatery III appealed a plea agree­ment between Funk and death-row pris­on­er Abu-Ali Abdur’Rahman, which would have allowed him to be resen­tenced to life in prison. After a pro­longed dis­pute between the Slatery and Funk, Abdur’Rahman’s was resen­tenced to life in December 2021. 

Black’s exe­cu­tion was first sched­uled for October 8, 2020, but was stayed twice by the Tennessee Supreme Court because of the COVID-19 pan­dem­ic. He was most recent­ly sched­uled to be exe­cut­ed on August 18, 2022, but Governor Bill Lee halt­ed all exe­cu­tions in Tennessee in May 2022 after learn­ing of irreg­u­lar­i­ties in the state’s lethal injection procedures.