Editor’s Note: On Nov. 18, 2021, the Shelby County District Attorney conceded that Pervis Payne has an intellectual disability and therefore, can not be executed. On Nov. 23, his death sentence was formally set aside. Payne will face resentencing at a later date.

As we pursue justice and reform in southern states, the abolition of capital punishment must be at the forefront of the discussion.

Far too often, race plays an outsized role in determining who lives and who dies in the South. The execution chambers in America are modern versions of rusted railroad tracks, unmovable oak trees, and dark, muddy waters once used to exert vigilante justice through lynching.

According to the Equal Justice Initiative, death penalty cases often mirror past lynchings and are disproportionately reserved for those who are Black, poor, and who suffer from severe mental illnesses or other impairments. Many southern states moved lynching from outside the courthouse to inside, and as history repeats itself, the states with historically high lynching rates are, not coincidentally, the states with the highest number of modern day executions.

After nearly 10 years with no executions, in 2018, Tennessee dusted off its electric chair and resumed its use of experimental drug cocktails to uphold a system that has demonstrated that it is nothing more than an empty promise of justice.

Pervis Payne at 20 years old in his 1987 booking photo. Payne, who has intellectual disabilities, has been on death row for more than three decades for a crime he has consistently asserted he did not commit.

The state is now pursuing the execution of Pervis Payne, scheduled for Dec. 3. Payne is a Black man with intellectual disabilities from Millington who was convicted and sentenced to death in 1988. Payne had no criminal history and has been unwavering in his assertion that he is innocent of this crime for more than 30 years.

During his trial, prosecutors used racial stereotypes to portray him as a hypersexual, violent drug user who attacked a white woman, even though Payne had no history of drug use.

Such unfounded accusations have been used to justify lynching black men since the 1800s. Shelby County is among 25 counties with the most recorded lynchings between 1877 and 1950 in the U.S. and it has a long history of violence against African Americans. One of the best known examples is that of the People’s Grocery lynching in Memphis, in which a white mob lynched Thomas Moss and two of his colleagues in 1892 because they believed he was starting a war against whites.

Today, 51% of the 51 people on death row in Tennessee are Black, and nationwide, the vast majority of people on death row are there for killing white people.

It is also not surprising that the prosecution in the Payne case relied on a racially charged narrative to secure a conviction, and ultimately, a death sentence. The Innocence Project, along with Tennessee litigators, recently launched a campaign requesting that the Shelby County District Attorney test crime scene evidence in Payne’s case for DNA, which they believe will prove his innocence once and for all.

On July 30, Shelby County District Attorney Amy Weirich announced that she opposes the DNA testing. This is not the first time this office has refused to allow DNA testing.

In 2006, Sedley Alley, also from Millington, was executed in Tennessee after being denied DNA testing of crime scene evidence. Even though law enforcement from another state came forward last year with new evidence pointing to another possible suspect, Weirich and the Shelby County Criminal Court refused the testing. Sedley’s daughter, April Alley, continues to seek DNA testing, and the truth in his case.

Ida B. Wells, pioneer for justice and lynching abolitionist, refused to accept the white narrative that placed the horrors of lynching on Black people, especially Black men. Wells laid lynching at the feet of white perpetrators who held carnivals, sent post cards, and carried out cruel lynching acts whether people were guilty or innocent.

Akin to lynching, the State’s desire to execute, despite pervasive racial bias and the risk of wrongful execution, means the death penalty still prevails in Tennessee and other southern states.

The prosecutors in Payne’s case seemingly understood the use of racist stereotypes to create implicit and explicit biases in the minds of the predominately white jury, using words like “white skin” and “dark hand” in the trial and discovery.

Tennessee is not the only southern state where racist tropes are presented in the courtroom. In Georgia, Johnny Lee Gates, a Black man convicted of a 1977 murder of a 19-year-old white woman, walked out of prison a free man this year after lawyers found that there was prosecutorial misconduct and racial bias in his jury selection. Previously, Gates was granted a new trial when DNA testing from a bathrobe belt and four neck ties found the presence of DNA from as many as five individuals, but none from Mr. Gates.

The cases of Payne and Gates are examples in which police and/or prosecutors in southern states have played on racial prejudices to send Black men to death row. But they are just two of many cases that have resulted in death sentences after the use of racist stereotypes, convenient “errors,” including the failure to disclose relevant evidence, and/or the removal of all or most jurors of color from the jury pool.

These cases also point to a reality that we cannot ignore — the power that prosecutors hold in determining who lives and who dies.

In 2019, 95% of elected U.S. prosecutors were white. White men still control nearly 73% of elected prosecutor positions. Prosecutors generally have broad discretion in their decision-making with the potential both for appropriate, ethical behavior and for abuse.

In order to more broadly understand the challenges within the capital punishment system, the history of lynching and the role that race plays cannot be ignored. Lynching was once widely accepted by the masses, until abolitionists like Wells, Mary Burnett Talbert, Juanita Jackson Mitchell, and others spoke out, persisted, and acted.

Today, support for the the death penalty is at its lowest level in 40 years, with a recent Gallup Poll finding that 60% of Americans now prefer alternative sentences to the death penalty. And, as citizens become more educated about the failures of the system, including the 170 death row exonerations since 1973, support for alternatives to the death penalty continues to increase.

White men and boys pose beneath the body of Lige Daniels shortly after he was lynched on August 3, 1920, in Center, Texas. Image courtesy of the Equal Justice Initiative

In “​Lethal Punishment: Lynchings and Legal Executions in the South​,” author Margaret Vandiver comments that, “​both lynchings and executions involve community approval of white violence against black people.​ The defendant and the victim’s skin color tends to play a paramount and often, intolerable role in deciding who receives the death penalty in America.”

Black/Brown people have accounted for nearly 43 percent of total U.S. executions since 1976. We must to come face to face with the color of capital punishment in the South, and continue to educate ourselves about its history and how that history continues to prop up a broken system. Then, and only then, we can act to finally dismantle this racist inhumanity once and for all.

Joia Erin Thornton is the program and partnership manager at Just City.

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