DA Concedes Pervis Payne Cannot Be Executed. Intellectually Disabled Black Man has an IQ of 68.4 and Murdering Him Would Violate the 8th Amendment Ban on Cruel and Unusual Punishment

EJI reports, The district attorney in Memphis, Tennessee, announced yesterday that the state will no longer fight to have Pervis Payne executed. Instead, in light of expert findings about Mr. Payne’s intellectual disability, the state will ask the court to replace his death sentence with two life sentences.

In 2002, the Supreme Court in Atkins v. Virginia held that the Eighth Amendment’s ban on cruel and unusual punishment prohibits imposing the death penalty on people with intellectual disability.

Mr. Payne’s attorneys have argued that he cannot legally be executed because he is intellectually disabled, citing evidence that he has a functional IQ of 68.4 and well documented adaptive deficits.

Dozens of witnesses, including family members, teachers, and coworkers, described his inability to read, do simple math, retain information, or do tasks like prepare a meal, do laundry, or shop for himself even as a teenager.

Tennessee courts refused to consider Mr. Payne’s intellectual disability claim, citing procedural rules.

Earlier this year, the Tennessee Legislature passed a new law that allows people like Mr. Payne to petition the trial court for a determination of whether they are intellectually disabled and therefore ineligible for the death penalty.

Pursuant to the new law, a hearing to determine Mr. Payne’s intellectual disability was scheduled for December 13.

District Attorney Amy Weirich said in a statement that a state expert who examined Mr. Payne and available records in advance of the hearing “could not say Payne’s intellectual functioning is outside the range for intellectual disability.”

“After review of the evidence, law and expert opinions, the State stipulates the Petitioner would be found intellectually disabled,” prosecutor Steve Jones wrote in a court filing, according to the Independent.

As a result, the state withdrew its request for a hearing and conceded that Mr. Payne cannot be executed because of his intellectual disability.

Mr. Payne, a Black man, was convicted and sentenced to death in the killings of a white woman and her two-year-old daughter in 1987, when he was 20.

Throughout the past 33 years he has been on Tennessee’s death row, he has maintained his innocence, explaining that he was near the crime scene because his girlfriend lived across the hall, heard a noise and went to help, was overwhelmed by what he saw, and he panicked and ran in fear.

His attorneys said DNA testing on previously untested evidence found male DNA from an unknown third party on key evidence, including the murder weapon—findings they said are consistent with his innocence claim.

After the prosecutor’s announcement yesterday, Mr. Payne’s counsel said they will continue to fight for his full exoneration.

“Our proof that Pervis is intellectually disabled is unassailable, and his death sentence is unconstitutional,” Mr. Payne’s attorney, Kelley Henry, said. “The state did the right thing today by not continuing on with needless litigation. This matter will now come to a close in a very short period of time. We however will not stop until we have uncovered the proof which will exonerate Pervis and release him from prison.”

Mr. Payne was scheduled to be executed last December before a delay was announced.