Tennessee Legislature Passes Bill to Provide Death-Row Prisoners Court Review of Intellectual Disability Claims

The Tennessee state leg­is­la­ture has over­whelm­ing­ly approved and sent to the gov­er­nor a bill that cre­ates a pro­ce­dure by which death-row pris­on­ers can obtain judi­cial review of claims that they are inel­i­gi­ble for the death penal­ty because of intel­lec­tu­al dis­abil­i­ty. On April 26, 2021, HB 1062 passed the Tennessee House by a vote of 89 – 4 and the Senate by a vote of 28 – 1.

The bipar­ti­san bill was inspired by the case of Pervis Payne (pic­tured), a Tennessee death-row pris­on­er with strong evi­dence of intel­lec­tu­al dis­abil­i­ty. Payne has repeat­ed­ly attempt­ed to obtain court review of his intel­lec­tu­al dis­abil­i­ty claim. However, a defect in Tennessee law pre­vents death-row pris­on­ers from pre­sent­ing those claims to the state courts if their death sen­tences had already been upheld on appeal before the U.S. Supreme Court ruled in 2002 that the death penal­ty could not be used against indi­vid­u­als with intellectual disability. 

The Tennessee Black Caucus began advo­cat­ing for the pro­pos­al in the Fall of 2020, when Payne and Byron Black both faced exe­cu­tion with­out any court hav­ing addressed their intel­lec­tu­al dis­abil­i­ty. After the men’s exe­cu­tions were halt­ed over coro­n­avirus con­cerns, the cau­cus intro­duced cor­rec­tive leg­is­la­tion at the start of the 2021 leg­isla­tive ses­sion. Much of the lan­guage from their orig­i­nal bill was incor­po­rat­ed in the Republican-spon­sored ver­sion that passed the legislature. 

Caucus chair­man Rep. G.A. Hardaway (D – Memphis), a co-spon­sor of the bill, said the leg­is­la­tion ​“has always been about due process. It’s about the life of not just Pervis Payne, but there are oth­er indi­vid­u­als on death row who may have claims of intel­lec­tu­al dis­abil­i­ties. They deserve to get into court to present their claims and have it adjudicated.” 

Hardaway said that Governor Bill Lee had indi­cat­ed pri­vate­ly that he sup­ports the bill. ​“I expect him to sign the bill,” Hardaway said.

Sen. Todd Gardenhire (R – Chattanooga), the Senate spon­sor, not­ed that the bill grants pris­on­ers one fair oppor­tu­ni­ty to present their claims. ​“This bill does not pro­vide for anoth­er bite at the apple, because those few indi­vid­u­als nev­er actu­al­ly got the first bite at the apple,” he said. He said that leg­is­la­tors had con­sult­ed with the Tennessee Disability Coalition, the Tennessee District Attorney Generals Conference, and the state attor­ney gen­er­al’s office in devel­op­ing the legislation.

In a state­ment, Payne’s attor­ney Kelley Henry called the pas­sage of HB 1062 ​“an exam­ple of how our three branch­es of gov­ern­ment are sup­posed to work togeth­er. The Tennessee Supreme Court urged the Legislature to patch a hole in Tennessee law that pre­vent­ed peo­ple with intel­lec­tu­al dis­abil­i­ty from access­ing the courts to press their claim that their exe­cu­tion is barred by the Tennessee and United States con­sti­tu­tions. Our leg­is­la­ture answered that call. This bill brings Tennessee law into line with the U.S. Supreme Court’s near­ly two-decades old rul­ing bar­ring the exe­cu­tion of peo­ple with intellectual disability.” 

Henry also not­ed that the bill ​“will reduce need­less lit­i­ga­tion, great­ly serv­ing the pub­lic inter­est by sav­ing tax­pay­er mon­ey, con­serv­ing judi­cial resources, and speed­ing up the appel­late process in capital cases.” 

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. Henry’s state­ment point­ed to the par­tic­u­lar chal­lenges faced by inno­cent defen­dants with intel­lec­tu­al dis­abil­i­ty, say­ing, ​“Importantly, the U.S. Supreme Court rec­og­nizes that peo­ple with intel­lec­tu­al dis­abil­i­ty are at a ​‘spe­cial risk for wrong­ful exe­cu­tion.’ Empirical stud­ies ver­i­fy this truth. This bill will help to ensure that the State of Tennessee does not wrong­ful­ly exe­cute an innocent person.”

A Death Penalty Information Center review of 136 cas­es through April 15, 2021 in which courts over­turned pris­on­ers’ death sen­tences because of intel­lec­tu­al dis­abil­i­ty has found that intel­lec­tu­al­ly dis­abled defen­dants of col­or are par­tic­u­lar­ly vul­ner­a­ble to cap­i­tal pun­ish­ment. More than 82% of the death-row pris­on­ers whose death sen­tences have been vacat­ed as a result of intel­lec­tu­al dis­abil­i­ty (112 of 136, 82.4%) are per­sons of col­or. More than two-thirds are African American (92, or 67.6%); 17.6% (24) are white; 14.0% (19) are Latinx; and one (0.7%) is Asian.