Tennessee Sets Execution Dates for Two Men With Issues of Innocence, Intellectual Disability, and Competency

Tennessee has set two more exe­cu­tion dates for 2020, direct­ed, advo­cates say, at men whose cas­es present unre­solved issues of inno­cence, intel­lec­tu­al dis­abil­i­ty, and mental competency.

On February 24, 2020, the Tennessee Supreme Court grant­ed state pros­e­cu­tors’ appli­ca­tions for exe­cu­tion dates for Byron Black (pic­tured, left) and Pervis Payne (pic­tured, right). The court sched­uled Black’s exe­cu­tion for October 8 and Payne’s for December 3, mak­ing them the fourth and fifth exe­cu­tions sched­uled in Tennessee for 2020. 

Coming less than a week after the exe­cu­tion of Nicholas Sutton—whose clemen­cy plea had been sup­port­ed by sev­en cor­rec­tions offi­cials, five jurors, and mem­bers of the vic­tims’ fam­i­lies — the war­rants draw con­tin­u­ing atten­tion to death-penal­ty prac­tices legal experts have char­ac­ter­ized as extrem­ist and out of step with nation­al trends. If Tennessee car­ries out all four pend­ing death war­rants, 2020 will be the first year since 1948 in which the state exe­cut­ed as many as five pris­on­ers in a single year.

Attorneys for Black and Payne said both men, who have been on death row since the 1980s, are intel­lec­tu­al­ly dis­abled. Black has an IQ of 67 and Payne has an IQ of 72. Under the U.S. Supreme Court’s 2002 rul­ing in Atkins v. Virginia, it is uncon­sti­tu­tion­al to exe­cute peo­ple with intel­lec­tu­al dis­abil­i­ty. Black is 63 years old, frail, and also has brain dam­age and schiz­o­phre­nia. Payne is seek­ing DNA test­ing of pre­vi­ous­ly undis­closed phys­i­cal evi­dence that, his lawyers say, ​“com­plete­ly con­tra­dicts the prosecution’s case” and they believe will prove his inno­cence. Both pris­on­ers are par­ties to a lethal-injec­tion chal­lenge pend­ing in federal court.

In a state­ment, Kelley Henry, a Tennessee fed­er­al defend­er who is rep­re­sent­ing both Black and Payne, said of Black, ​“In addi­tion to the severe men­tal defects which make him incom­pe­tent to be exe­cut­ed, he suf­fers from numer­ous med­ical ail­ments. He is phys­i­cal­ly infirm, can bare­ly walk, is in need of two hip replace­ments, and suf­fers from con­ges­tive heart fail­ure. He gets around the prison by being pushed in an office chair with wheels. The Eighth Amendment pro­hibits the exe­cu­tion of a pris­on­er, like Mr. Black, who has lost his san­i­ty.” A hear­ing has been ordered to deter­mine whether Black is com­pe­tent to be executed.

Payne, who is 52, has main­tained his inno­cence for more than 30 years. Intellectual dis­abil­i­ty is a known risk fac­tor for wrong­ful con­vic­tion because peo­ple with intel­lec­tu­al dis­abil­i­ty are less able to assist in their own defense and more like­ly to false­ly con­fess. Henry said Payne ​“was con­vict­ed because he was unable to assist his attor­neys in mak­ing his defense and made a poor wit­ness who was no match for the expe­ri­enced pros­e­cu­tor.” Payne’s brief in oppo­si­tion to the prosecution’s request for an exe­cu­tion date notes that no phys­i­cal evi­dence linked Payne to the mur­der and that the defense recent­ly dis­cov­ered ​“new, mate­r­i­al, excul­pa­to­ry evi­dence” that the pros­e­cu­tion had sup­pressed at the time of tri­al, includ­ing “[a] bloody com­forter, bloody sheets, and a bloody pil­low” that poten­tial­ly also have semen evi­dence. ​“Mr. Payne was pre­vi­ous­ly denied DNA test­ing based on a Tennessee Supreme Court case that has since been reversed,” Henry said in her state­ment. ​“The new evi­dence should be test­ed before any execution proceeds.”

On September 20, 2019, Tennessee Attorney General Herbert Slatery asked the Tennessee Supreme Court to set exe­cu­tion dates for an unprece­dent­ed nine death-row pris­on­ers, the largest exe­cu­tion request in the mod­ern his­to­ry of Tennessee’s death penal­ty. The same day, Slatery sought to inter­vene in the case of death-row pris­on­er Abu-Ali Abdur’Rahman to reac­ti­vate his death war­rant and undo a court-approved plea deal with Nashville pros­e­cu­tors that would over­turn his death sen­tence and replace it with three con­sec­u­tive life sen­tences. The court has sched­uled the exe­cu­tions of Oscar Smith and Harold Nichols for June 4 and August 4, respec­tive­ly. It has stayed Abdur’Rahman’s exe­cu­tion to con­sid­er Slatery’s request.