A Glimmer of Justice in Death Penalty States

NASHVILLE — In 1987, a young man named Pervis Payne, stopping at his girlfriend’s place in Millington, Tenn., noticed that the door to the apartment across the hall was open. Inside, a woman and two small children were lying on the floor in a pool of blood. Mr. Payne rushed inside and tried to help them, but as the police arrived, he panicked. Realizing that he could be blamed for the murders, he fled.

Mr. Payne, who lives with an intellectual disability, has steadfastly maintained this version of the events of that afternoon, when Charisse Christopher and her 2-year-old daughter were stabbed to death. (A 3-year-old son was also stabbed but survived.) The story he tells is always the same: He stumbled onto a crime scene and tried to help the victims. He ran away because he was afraid.

Mr. Payne is Black. The victims were white. The crime took place in a county where the criminal justice system was anything but just. That’s all you need to know about the case to know exactly how the rest of Pervis Payne’s story played out.

“Prosecutors portrayed him as a drug-using and violent predator who was looking for sex,” wrote The Nashville Scene’s Steven Hale, whose book, “Death Row Welcomes You,” will be published by Melville House next year. “It’s an allegation as old as America — a sex-crazed Black man accused of attacking a white woman — and it came in Shelby County, the jurisdiction with the most recorded lynchings in the state’s history and a disproportionate number of death sentences.”

There is eve­­ry reason to believe Mr. Payne’s story. As Daniele Selby of the Innocence Project notes, Ms. Christopher’s ex-husband was a man with a long history of violence, while Mr. Payne had no criminal record, no history of drug abuse. Another man was seen running from the building just as Mr. Payne arrived.

Mr. Payne was convicted of the murders and sentenced to death anyway. He would have been executed last December if the pandemic had not caused Gov. Bill Lee to interrupt the state’s execution spree. (Starting in 2018, after a moratorium on executions that lasted nearly a decade, the state executed seven people in a year and a half.) The new reprieve was not because Mr. Lee had suddenly developed qualms about the death penalty, but because gathering in the close quarters of the execution witness rooms wasn’t safe for observers.

The delay allowed for Mr. Payne’s advocates to continue pursuing a variety of strategies to save his life: a formal clemency petition, a petition to perform DNA testing on evidence collected at the crime scene, and stepped-up efforts to persuade the Tennessee General Assembly to close a gap between Tennessee law and Supreme Court precedent.

In January, the long-delayed DNA tests did find Mr. Payne’s DNA at the scene, as expected — he has always said he entered the apartment to try to help. But the tests also revealed the presence of an unknown man’s DNA on the knife that killed Ms. Christopher. Even so, Shelby County Judge Paula Skahan ruled that this evidence did not exonerate Mr. Payne and would not have affected the outcome of his trial.

“Free Pervis Payne” has become a rallying cry for Mr. Payne’s many supporters, including more than 440,000 people who have signed a Change.org petition urging clemency. “You need to get behind this movement of Pervis Payne,” urged Charles Steele Jr., president of the Southern Christian Leadership Conference, at a rally at the National Civil Rights Museum in Memphis. “You need to march right now. You need to understand what Dr. King said when he said, ‘Silence in the face of evil is evil itself.’”

In 2002, the U.S. Supreme Court ruled it unconstitutional to execute a prisoner who lives with an intellectual disability, but the Tennessee Supreme Court subsequently declared there to be no legal mechanism for prisoners already on death row to challenge their sentences. The state court urged Tennessee lawmakers to take up the issue.

I am amazed to report that they finally did.

G.A. Hardaway, a Democratic state representative from Memphis and a member of the Tennessee Black Caucus, sponsored a bill to allow death row prisoners with intellectual disabilities to request an alternate sentence. In April, by nearly unanimous votes, the legislature passed the bill, and Mr. Lee signed it into law. On Nov. 23, Judge Shahan vacated Mr. Payne’s death sentences and replaced them with two life sentences. A hearing on Dec. 13 will determine whether they will run concurrently or consecutively.

A decision in favor of concurrent sentences would make Mr. Payne eligible for parole in about six years — still far short of the exoneration his supporters hope for. But there is cause for jubilation anytime a human being leaves death row and lives to fight another day. “What a difference it makes to be able to wake up in the morning and not have to feel like you have to fight for your life,” Mr. Payne’s lead lawyer, Kelley Henry, a federal public defender, told WPLN’s Samantha Max.

That has happened more than once in red states recently. Last month, a Nashville judge approved a plea deal that removed Abu-Ali Abdur’Rahman from death row on grounds of “overt racial bias” during jury selection in his 1987 murder trial. And Gov. Kevin Stitt of Oklahoma, a Republican and a proponent of the death penalty, last month commuted the death sentence of Julius Jones to life without parole. His decision came just hours before Mr. Jones was set to be executed.

The pressure brought to bear on Mr. Stitt before his “prayerful consideration” of the case came from more than just the usual death penalty opponents. The state’s parole board had already recommended — twice — that Mr. Jones’s sentence be commuted to life in prison. Influential conservatives such as Matt Schlapp, the chairman of the American Conservative Union, and Timothy Head, the executive director of the Faith & Freedom Coalition, also urged the governor to commute the sentence. And students across the state walked out of their classrooms in protest of the impending execution.

Mr. Jones’s execution would have followed less than a month after the execution of John Marion Grant, the first in Oklahoma since 2015. Mr. Grant’s death by lethal injection on Oct. 28 was accompanied by several minutes of vomiting and convulsions. The horrific spectacle of his death fueled renewed criticism of the state’s execution method as a violation of the constitutional prohibition against cruel and unusual punishment.

“This is probably the end of the death penalty in the state of Oklahoma,” Jim Olsen, a Republican state representative and an advocate for capital punishment, told Public Radio Tulsa.

Given the political appetite for state-sponsored murder in the red states, I am not holding my breath, but I admit to feeling hopeful. Like the guilty verdicts in Ahmaud Arbery’s murder in Georgia, these new developments have come in unlikely quarters, were sponsored by unlikely advocates and have culminated in unlikely results. It’s hard not to hope for a day when the manifold reasons for ending the death penalty prevail and our criminal justice system becomes just a little more just.

But it is not yet the time for celebration. Tennessee has set its next two execution dates, the first since the pandemic began. Alabama’s new nitrogen gas execution protocol is complete, and Oklahoma’s next execution is set for Thursday.

Margaret Renkl, a contributing Opinion writer, is the author of the books “Graceland, at Last: Notes on Hope and Heartache From the American South” and “Late Migrations: A Natural History of Love and Loss.”

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