Tennessee lawmakers are considering a bill that would allow intellectually disabled people on death row to challenge their sentence.
Both the state and U.S. Supreme courts have said it’s unconstitutional to execute people with a low I.Q., and Tennessee law no longer allows individuals with an I.Q. of 70 or below to be sentenced to death.
But Kelley Henry, a federal public defender who specializes in death row cases, told legislators at a hearing Wednesday that the new measure (House Bill 1/Senate Bill 1236) is needed to provide the same protection for people who have already been sentenced.
“This will simply clean up a problem that exists in the statute. It will not open any door,” Henry said. “It is very tight. It does not allow a floodgate of litigation. And I can promise you that as somebody who knows every single person on Tennessee death row right now.”
The bill is being considered by the House Criminal Justice Subcommittee. The measure has the backing of several high-profile figures, including the president of the American Bar Association and Ken Starr, the former judge, U.S. solicitor general and independent prosecutor of the Whitewater investigation. They’ve said in written testimony that the legislation will bring Tennessee law in line with the Constitution.
“As a former United States Circuit Judge and prosecutor, I believe there is an important place for the death penalty in our criminal justice system,” Starr wrote. “But I also know that death penalty cases must scrupulously abide by the rule of law. We can never afford to make a mistake that might lead to taking an innocent life.”
Starr noted that nearly 20 years have passed since the U.S. Supreme Court ruled that the death penalty constitutes cruel and unusual punishment in the case of intellectually disabled individuals. James Ellis, the attorney who argued that case before the court in 2002, also wrote testimony in favor of the bill, calling the state’s current statute “outdated” and overly restrictive, because it “leaves many people who are, in fact, intellectually disabled, outside of its protection.”
“The Tennessee Supreme Court has recognized that ‘Tennessee has no business executing persons who are intellectually disabled,'” Ellis wrote. “The court urged you, the Tennessee General Assembly, to fix the problem, and this legislation does so by providing a one-year deadline for prisoners to seek a court determination of their intellectual disability.”
The Tennessee Black Caucus filed the bill on behalf of Pervis Payne, a man with an intellectual disability who is scheduled for execution this April. Payne was sentenced to death in 1988 for stabbing a woman and her children, though he has always maintained his innocence and had no prior criminal record. His attorneys also argue that recent DNA testing casts doubt on his conviction.
Payne’s attorneys hope the legislation could provide another path to overturn his sentence. They also have applied for clemency, which Gov. Bill Lee’s office has said he will consider.
Samantha Max is a Report for America corps member.