By Victoria Lembesis
NASHVILLE, TN – Attorneys for Pervis Payne petitioned the governor here Monday to spare his life from his execution conviction—he is petitioning for clemency on the grounds that, because of his intellectual disability, his execution is unconstitutional.
Payne is asking that instead of execution his death sentence be commuted to a sentence of life, or a reprieve until the legislature patches a procedural hole in Tennessee law to allow him to present his intellectual disability claim in court.
Payne is scheduled for execution on December 3, 2020.
Payne has an IQ of 72 and a lower score of 68.4 when corrected for outdated testing norms, neuro-cognitive impairment, and other evidence of intellectual disability.
“As Tennessee’s High Court observed, despite clear proof that Mr. Payne is intellectually disabled, a hole in Tennessee procedural law prevents him from adjudicating his intellectual disability. You [the Governor] are the solution to the problem. Because the courts cannot prevent this unconstitutional execution, you are the only one who can stop it. On this basis alone, we ask you to commute Mr. Payne’s death sentence,” Payne’s Application states.
As his application states, the U.S. Constitution prohibits the execution of any person with intellectual disability. In Payne’s own case, the Tennessee Supreme Court wrote, “Tennessee has no 
business executing persons who are intellectually disabled.” (Application at pp. 1, 6-10.)
Though the court has clear proof that Payne is intellectually disabled, Tennessee law prevents him from adjudicating his intellectual disability. Because of that, the courts cannot prevent the unconstitutional execution, so the governor is being asked to intervene.
It is noted in his Application for Executive Clemency that the Supreme Court’s prohibition against executing people with intellectual disability is that it presents a special risk of wrongful execution.
Payne has also maintained his innocence for upwards of 30 years. He was 20 years old and waiting for his girlfriend when he heard noises across the hall and went to help. Overwhelmed by the terrible crime scene he discovered, he panicked and ran. Because he had been at the scene, the police zeroed in on Mr. Payne and failed to investigate other suspects.
At Payne’s 1988 trial, the prosecution played upon outdated racist tropes, painting Mr. Payne as a drug addicted, hypersexual rapist.
“The stereotypes used to convict Mr. Payne are the same used repeatedly throughout history, from Emmett Till to the Central Park 5,” the application states.
“There is nothing in Mr. Payne’s background before, or since, that is consistent with the sort of person who would commit such a crime,” the application states.
The petition claims that he had never been arrested as an adult or juvenile or used drugs.
They write, “Although he struggled in school, and was unable to graduate due to his intellectual disability, he did not have disciplinary problems and had a reputation for being kind, polite and helpful in the community.”
Additonally, they say, he has been a model prisoner who has consistently received high marks for not presenting problems, being respectful and polite, being a hard worker, keeping a positive attitude, and possessing similar attributes
Payne is supported by a broad and growing coalition of 150 Tennessee faith, legal, civic, and grassroots supporters who have submitted letters asking the governor for his clemency. In addition to these letters, More than 130,000 people have signed a petition at www.pervispayne.org on the Innocence Project’s website.
There have also been more than 120 Tennessee congregations including Christian, Muslim, and Jewish denominations who have written to the governor.
“[Y]ou can use your power to grant clemency to Mr. Payne and show mercy to this vulnerable man who, by today’s legal standards and by our timeless faith beliefs, should not be facing death at the hands of the State,” wrote Memphis Interfaith Coalition for Action and Hope.
“Governor Lee, the process has failed Mr. Payne. The question of his innocence is deeply concerning, but equally so is the fact that Pervis Payne has an intellectual disability. His execution would be contrary to the conservative principles we hold,” wrote Tennessee Conservatives Concerned About the Death Penalty.
“[T]he Shelby County prosecutors concocted a story of a drug-addled and sex-crazed Black man preying on a defenseless white woman. This narrative played to deeply held racist stereotypes in a county with a notorious history of lynching Black men for perceived insults to the ‘honor’ of white women. It is hard to imagine that these themes did not have an unfair impact on the jury that sentenced Mr. Payne to death,” wrote the Tennessee State Conference NAACP.
Four members of Witness to Innocence, an organization of people exonerated from death row, including three who live in Tennessee, wrote: “We know only too well that innocent people have been sentenced to death in America … We easily could have been executed before successfully proving our innocence, a nightmare that haunts us still … Pervis Payne’s case does not represent due process or equal justice under law. But the serious errors in his case do not have to be fatal ones.”
Other groups providing individual letters of support include: Tennessee Disability Coalition, Nashville Organized for Action and Hope (NOAH), Bishop David Allen Hall, Bridge City Community Church, ACLU TN, Just City Memphis, The Justice Initiative, and Tennessee Association of Criminal Defense Lawyers (TACDL).
Pervis Payne’s legal team has been scheduled to meet with the governor’s legal office on October 27, 2020.
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I hope Mr. Payne’s petition is granted. But what an absurd and irrational system of justice we have, where a couple of points on an IQ test can mean the difference between life and death. The death penalty is arbitrary and barbaric, and should be abolished.