A system is broken when it points toward an outcome that everyone knows is wrong, but it delivers that outcome anyway. When it comes to the treatment of individuals with intellectual disabilities facing the death penalty, the system in Tennessee is tragically broken.
The Tennessee General Assembly 30 years ago recognized the injustice of punishing with death individuals with intellectual disabilities, and prohibited the death sentence for such individuals. A little more than a decade later, the Tennessee Supreme Court determined that executing individuals with disabilities violated Article I, Sec. 16, of the Tennessee Constitution.
The court concluded that executions under such circumstances violated “the evolving standards of decency that mark the progress of a maturing society,” were “grossly disproportionate,” and served no valid punitive purpose.
A year later, following Tennessee and the growing national consensus, the U.S. Supreme Court came to the same conclusion in Atkins v. Virginia.
Yet the state of Tennessee was poised to execute an individual with credible claims of intellectual disability that have never been heard until a recent temporary reprieve was issued amidst the Covid-19 pandemic.
Hearing Rejected on Procedural Technicalities
Pervis Payne was sentenced to death in 1988, less than two years before Tennessee’s ban on death sentences for individuals with intellectual disabilities took effect. Payne has consistently claimed innocence in his case, but his lawyers have also argued that he should be ineligible for the death penalty due to intellectual disability.
No one has denied that executing such an individual would be unconstitutional, and when Payne submitted evidence of his disability, the state did not deny its validity. But the state has denied Payne the opportunity for a hearing on this claim—his most recent attempt to obtain a hearing was rejected in 2016 by the Tennessee Supreme Court on procedural technicalities. The court simply concluded that Payne had not utilized a valid procedure to obtain a hearing on the question of intellectual disability.
Tennessee Legislature Needs to Act
Though denying Payne’s claim, the court recognized the peril of moving forward to execute an individual under such circumstances and encouraged the General Assembly to devise a procedure for individuals like Payne—those claiming intellectual disability, but sentenced prior to the state prohibition—to be heard.
To date, the legislature has not acted to fix the problem. On November 4, 2020, a state legislator introduced legislation to close the gap. Hopefully, a bipartisan group of legislators will support the bill that would provide Payne and others a path to have their claims heard. Payne’s reprieve expires in April, and if the legislature has not acted, he will be eligible to have a new execution date set.
That Payne might be killed while state institutions dither on a topic upon which there actually is no disagreement—state statutes, the state constitution, and the federal constitution all prohibit the execution of individuals with intellectual disabilities—is an indictment of just how broken this area of the law is.
Other red flags in Payne’s case exist. While a court recently approved DNA testing of many pieces of forensic evidence that went untested for decades, the state inexplicably cannot account for some of the most important items of evidence that, if tested, could substantiate Payne’s repeated claims of innocence.
In addition, Payne’s case reflects the disturbing racial discrepancies of the death penalty, where Black defendants are disproportionately sentenced to death, particularly in cases with White victims.
More than three decades after his conviction and despite changes in death penalty law, Payne has already effectively lost his life. Moving forward with his execution entails grave risks.
At the most extreme, executing Pervis Payne could be an irreversible mistake—the fact that 172 people have already been exonerated from America’s death rows demonstrates this danger. But regardless of Payne’s guilt or innocence, it is already clear that executing him without providing a hearing on his claim of intellectual disability, a claim the state has never rebutted, risks violating the state and federal constitutions, as well as a shared understanding that the ultimate punishment is inappropriate in some cases.
In Payne’s own case in 2016, the Tennessee Supreme Court reiterated its commitment “to the principle that Tennessee has no business executing persons who are intellectually disabled.”
Yet there remains an opportunity to correct the injustice of a system that imposes death. Gov. Bill Lee (R) has the opportunity to commute Payne’s death sentence and could lend his support to the pending legislation providing an opportunity for a hearing.
And while Payne’s case raises particularly thorny questions about government-sanctioned killing of individuals, the governor could also take up the charge of the Tennessee Supreme Court’s Access to Justice Commission to create “a new initiative to identify and eliminate barriers to racial and ethnic fairness and justice” that includes reconsideration of the death penalty.
Unfortunately, the trend seems to be pushing in the opposite direction as Tennessee’s seven executions since 2018 are the most in any state other than Texas.
In this moment, no one is arguing that executing an individual with intellectual disabilities is permissible. No one has rebutted Payne’s claim that he suffers from intellectual disabilities. Yet the clock ticks until action is taken to fix this glaring hole in a broken system.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners
Daniel Kiel is the FedEx Professor of Law at the University of Memphis Cecil C. Humphreys School of Law and chair of the board of directors of Just City, an organization dedicated to pursuing a smaller, fairer and more humane criminal justice system.