Until last Friday, Pervis Payne hadn’t been seen in public, or in regular clothes, for more than a decade. Payne has spent most of his life on death row for murders he says he didn’t commit.
His attorneys and the state are now sparring over what evidence should be used to determine he has an intellectual disability, as many believe, and should be spared the death penalty.
Payne’s case is part of why the Tennessee General Assembly passed a law this year intended to reduce the chances of unconstitutionally executing someone with an intellectual disability, formerly called mental retardation. The new law gets the state more closely aligned with medical standards and creates a pathway for a few people like Payne to have their claims heard.
Payne was convicted more than three decades ago for the murder of a woman and child in what prosecutors say was an attempted rape. Payne does not deny he was at the scene of the crime — his girlfriend lived in a nearby apartment — but says he was responding to signs of distress.
His lawyers have been trying to convince Tennessee officials to exonerate him. They’re simultaneously arguing that Payne’s death sentence should not stand, due to U.S. Supreme Court rulings that have declared executing a person with an intellectual disability is unconstitutional.
Typically, for an intellectual disability diagnosis, people have to show significant deficits in cognitive functioning and adaptive behavior — all before the age of 18. But the state wants to look at Payne’s record during his decades in prison, which began after he became an adult.
His attorney, Kelley Henry, says that’s unlawful and irrelevant.
“I became very concerned about this request for this carte blanche fishing expedition into my client’s records,” she told a Memphis judge on Friday. “Not because I’m afraid of what they’ll say … but my concern is that we’re going to get involved in issues that are distracting — and in talking about stereotypes that are unreliable.”
Henry worries the state is attempting to use Payne’s good behavior and likability as proof he does not have a problem with adaptive behavior — and thus does not have an intellectual disability. But experts say prisoners can actually adapt well in a highly structured environment such as death row, and courts have found prison staff are not qualified to make that assessment.
Henry has also requested the state’s assessment of Payne be discretely videotaped. The judge in the case expects to make her ruling on that request soon.
Henry and her team say there’s no time to delay. Payne was set to be executed last December, but got a temporary reprieve due to the pandemic. So, he could receive a new execution date at any time.
“It’s very important that we let the Tennessee Supreme court know that nobody down here is wasting time,” Henry said. “We’re moving very quickly.”
Pervis Payne’s Intellectual Disability hearing is set for December 13.
Correction: The headline on an earlier version of this story inaccurately said Friday’s hearing was Pervis Payne’s first in a decade. It was the first that he has attended in person in that time.