On November 6, 2020, Tennessee Governor Bill Lee granted a reprieve to death row prisoner Pervis Payne, halting his execution, which had been scheduled for December 3, 2020. Governor Lee’s decision came as Mr. Payne awaited the results of DNA testing on key pieces of evidence. The reprieve stays Mr. Payne’s execution through April 9, 2021, at which point the Tennessee Supreme Court may set a new execution date.
Mr. Payne, a Black man with an intellectual disability, has been on death row for 32 years for the murder of Charisse Christopher, a white woman, and her two-year-old daughter. He is the second death row prisoner to be granted a reprieve since Governor Lee assumed office in 2018. In a brief statement accompanying the reprieve, Governor Lee announced, “I am granting Pervis Payne a temporary reprieve from execution until April 9, 2020, due to the challenges and disruptions caused by the COVID-19 pandemic.” Following the reprieve, one of Mr. Payne’s attorneys, Kelley Henry, stated, “Governor Lee was right to delay Pervis Payne’s execution due to the Covid-19 crisis. Bringing witnesses into the prison is unsafe for them, the staff, and the prisoners."
In a clemency petition filed a month before Governor Lee issued the reprieve, Mr. Payne’s attorneys urged Governor Lee to commute his sentence because of his intellectual disability. The petition also discussed the racial stereotypes used against Mr. Payne at trial, including the theory that he was a “sexually predatory black man, high on drugs, who attacked a white woman.” The petition remains under review and Governor Lee made no mention of it in granting the reprieve.
Mr. Payne was sentenced before the U.S. Supreme Court’s 2002 decision in Atkins v. Virginia. The prohibition on executing those with intellectual disabilities applies retroactively, requiring courts to adjudicate the issue of a death row prisoner’s intellectual disability. Though Mr. Payne has repeatedly sought reconsideration of his sentence, the courts have cited procedural roadblocks in refusing to assess his claim. Under current Tennessee law, there is no process to have an intellectual disability claim heard in court after sentencing. The Tennessee Black Caucus of the State Legislators introduced new legislation on November 4, 2020, that will allow courts to overturn a sentence upon finding that a prisoner has an intellectual disability. The legislation is expected to receive bi-partisan support and was inspired by Mr. Payne’s case.
Mr. Payne is also waiting for the result of DNA testing that could bolster his actual innocence claim. Significant pieces of evidence, including a bloody comforter, sheets, and a pillow, found at the crime scene were not disclosed to the defense until 2019 and along with various biological samples and the murder weapon, have never been tested. On September 16, 2020, Shelby County Criminal Court Judge Paula Skahan ordered DNA testing, stating that “exculpatory DNA results in this case, had they been presented to the jury, would have created a reasonable probability Mr. Payne would not have been convicted of first degree murder.” Judge Skahan ordered DNA testing of eyeglasses, a knife, and other items from the crime scene. However, some of the crime scene evidence, including fingernail clippings, has not been located.
Mr. Payne’s execution date was the last set in Tennessee for 2020. The pandemic has delayed executions throughout the country, with Missouri and Texas the only states to have carried out any executions during the pandemic, in addition to the spree of federal executions.