A bill that would allow individuals on death row with intellectual disabilities to challenge their death sentences has passed through both chambers of the Tennessee General Assembly with near-unanimous support.

If signed into law, the legislation, HB 1062/SB 1349, could spare the life of a man whose execution date could be scheduled imminently.

Pervis Payne was scheduled to die last December, though Gov. Bill Lee granted him a reprieve due to the COVID-19 pandemic. That reprieve lifted on April 9.

Payne has spent more than 30 years on death row, even though his attorneys say his IQ falls below the threshold for intellectual disability and his math, reading and memory skills are much lower than the average for his age.

Both state law and the U.S. Supreme Court have barred the execution of people with intellectual disabilities, like Payne. But there is no appellate process in place for people who have already been sentenced to death. The new measure would change that.

One of the measure’s sponsors, state Sen. Todd Gardenhire, R-Chattanooga, says the bill will “uphold our constitutional responsibilities” not to execute individuals with intellectual disabilities.

“This legislation also provides a procedural path for the very limited number of individuals with intellectual disability who are already under the death sentence and who have not had their intellectual disability claims fully adjudicated by the courts on their merits,” Gardenhire said before a final vote in the Tennessee Senate Monday night.

The measure updates the state’s intellectual disability definition to match that of the American Psychiatric Association, rather than limiting it people with an IQ of 70 or below whose disability emerged when they were 18 or younger. Plus, it provides a legal path for Payne and others already on death row to argue for a lesser sentence based on their intellectual disability.

Gardenhire assured his colleagues this would not open up the courts to a new stream of appeals from people who had already argued that they should be exempt from the death penalty because of intellectual disability and lost. He said it would allow only those who had never brought the issue before a judge to appeal their sentences.

“This bill does not provide for another bite of the apple, because those few individuals never actually got a first bite of the apple,” Gardenhire said. “This legislation addresses the need for intellectual disability issues to be brought once, fully litigated and then decided so the litigation does not drag on forever.”

Further, Gardenhire said the bill would not allow people on death row to challenge their convictions and have their cases retried. It would reopen only the discussion about their sentence.

The measure passed with just four no votes in the House and one no vote in the Senate. A similar bill sponsored by Democratic lawmakers, HB 1/SB 1236, was defeated in the House Criminal Justice Subcommittee earlier this month.

A Ticking Clock For One Man On Death Row

For Payne, the new legislation would provide a last-ditch chance to ask the courts to overturn his death sentence.

Courtesy PervisPayne.org

With the Apr. 9 reprieve lifted, Pervis Payne’s execution could be rescheduled any day now.

Payne has spent decades appealing his case on other grounds. Though he doesn’t deny that he was at the scene of the stabbing that resulted in his murder conviction, he has always maintained that he was only there to help when he found a woman and her two children bleeding on the floor. Payne’s girlfriend lived in the apartment across the hall from the woman who was killed, along with one of her children. Another survived the stabbing.

DNA analysis of never before tested evidence uncovered an additional man’s DNA on several items at the crime scene, including the knife used in the stabbing, earlier this year. But because Payne’s DNA also appeared on some of the items, a judge ruled the evidence couldn’t prove his innocence.

Payne’s attorneys have filed a clemency petition, which was signed by more than 150 individuals and community groups. They also hope to appeal his sentence if the newly passed bill becomes law.

The governor’s office confirmed that Lee plans to sign the bill when it reaches his desk and said he is still considering Payne’s clemency petition.

In the meantime, his legal team says it’s pursuing every option to prevent his execution.

“The U.S. Supreme Court recognizes that people with intellectual disability are at a ‘special risk for wrongful execution. Empirical studies verify this truth,’ ” Payne’s attorney, Kelley Henry, said in a statement. “This bill will help to ensure that the State of Tennessee does not wrongfully execute an innocent person.”

Samantha Max is a Report for America corps member.