Pervis Payne was scheduled to die last December 3. However, his life was spared when Tennessee Governor Bill Lee granted him a temporary reprieve. Payne is well known among those on death row in the United States because he was the plaintiff in an infamous Supreme Court case, Payne v. Tennessee, which allowed the admission of victim impact evidence in capital cases.
Last week his name was again in the news when, one day after Governor Lee signed a bill easing the way for Tennessee inmates to challenge their death sentences on the grounds of mental disability, Payne’s lawyers petitioned a Memphis trial court to vacate his death sentence.
Payne’s case is a striking example of the defects and injustices of capital punishment. It shines a light on errors in the guilt and punishment phases of capital cases and reminds us that the death penalty seems to target the disadvantaged and the disabled.
Here I want to note three kinds of defects and injustices that appear in Payne’s case.
The first involves miscarriages of justice and false convictions in capital cases.
Payne was sentenced to die for the 1987 murder of Charisse Christopher and her two-year-old daughter. Yet for more than thirty years, from the time of his arrest until now, he has consistently maintained his innocence. He claimed that he had tried to aid Charisse when he discovered that she had been attacked. In doing so he got covered in the blood of the victims, which is why the police mistook him for the killer.
His trial was, like many other death penalty trials, a spectacle of racial intolerance and prosecutorial misconduct.
During the trial, prosecutors, playing on racial stereotypes, argued that Payne was high on drugs and killed Charisse after she rejected his unwanted sexual advances. They evoked images of a predatory, racialized assault on white womanhood. Leaving nothing to the jury’s imagination they made repeated references to Charisse’s “white skin.”
Moreover, for many years, prosecutors resisted efforts to subject crime scene evidence to DNA testing. Only last year did the trial court order such testing. It showed that the DNA of an unknown third party, and not Payne’s, was on the murder weapon.
In addition, eyewitnesses testified that they saw another man leaving Charisse’s apartment before Payne discovered her body.
We know that erroneous convictions play an important and disturbing part of America’s death penalty story. Last month, miscarriages of justice in capital cases again made headlines when evidence was uncovered suggesting that the state of Arkansas had executed an innocent man in 2017 when it put Ledell Lee to death.
Lee is tragically not the first innocent person to be executed in the United States.
In addition, The Death Penalty Information Center reports that since 1973, “185 former death-row prisoners have been exonerated of all charges related to the wrongful convictions that had put them on death row.” During that time period, for every eight people who have been executed in the United States, one person has been found to have been wrongfully convicted.
The likelihood of a false conviction is increased dramatically in racialized trials like Pervis Payne’s where black defendants are accused of murdering white victims. In fact, black defendants are seven times more likely to be wrongfully convicted in capital cases than are whites.
The second of the defects and injustices highlighted in Payne’s case arises from the use of so-called victim impact evidence.
In Payne’s case such evidence included a statement by Charisse Christopher’s mother that Charisse’s surviving child frequently asked her whether she missed her dead daughter and granddaughter.
Such prejudicial victim impact statements are now a regular part of the capital sentencing process in both federal and state capital trials
Those statements often provoke anger among jurors, compromising the rationality of their deliberations. Jurors use the grief expressed in victim impact statements as a “proxy for the level of defendant’s … culpability, and by implication, the perceived seriousness of the crime.”
And jurors tend to take the suffering of some victims’ families more seriously than others, depending on their social status. As DePaul law professor Susan Bandes puts it, “A murder victim who met her assailant in a biker bar, for example, is valued less than a murder victim attacked while withdrawing money from an ATM machine.”
Victim impact evidence also contributes to the already substantial racial differences in capital sentencing, with juries giving more weight to the suffering of white murder victims’ families.
The third and final illustrative aspect of the Payne case involves his mental disability, which is the focus of the new litigation.
As a child Payne struggled in school and, despite his best efforts, was not able to graduate. He had trouble with even simple chores like cooking and doing laundry, and needed help feeding himself until he was 5.
Payne’s lawyers now are asking the courts to “declare that Mr. Payne is ineligible to be executed because he is intellectually disabled.” They contend that he meets all of the requirements set forth by the United States Supreme Court in Atkins v Virginia, a case that held that it is unconstitutional to execute individuals with an intellectual disability.
Payne has “significantly sub-average intellectual functioning, significant adaptive deficits in each domain, and his disability manifested prior to age 18.”
Having an intellectual disability, a mental illness, or a history of childhood abuse and trauma turns out to be a very important, though often unappreciated, factor in explaining both who ends up on death row and who gets executed.
As Harvard law professor Charles Ogletree has noted, “Severe functional deficits are the rule, not the exception, among the individuals who populate the nation’s death rows.”
The overwhelming majority of those facing execution today suffer from significant intellectual disabilities, mental illnesses, or a history of childhood abuse and trauma.
This remains the case two decades after Atkins because the Supreme Court has refused to offer a clear definition of what constitutes a disqualifying illness, leaving that judgment to judges and juries untrained in identifying, and unfamiliar with, intellectual disabilities, mental illness, and the lifelong consequences of childhood trauma.
Whether Payne will succeed in his new litigation and whether his life will be spared remains to be seen. In the meantime, his case offers a striking lens for examining the continuing problems of America’s death penalty system and a powerful reason for stopping the killing that the government carries out in our name.