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 the sun began its descent on the Wednesday workday and the roar of traffic swelled for the evening commute, more than 60 people clustered at the four corners of Union and McLean. Some of the crowd waved signs, some distributed pamphlets during the red lights. The crowd was Black; it was white, it was young and old. But the group’s uniform of black T-shirts signaled their common mission in clear letters: #FreePervisPayne.
In 1988, a judge sentenced Payne to die after a jury convicted him of the 1987 murder of Charisse Christopher and her daughter, despite scarce evidence against him and Payne’s intellectual disability. He has maintained his innocence for 33 years. In prison, Payne waited 14 years for the Supreme Court to outlaw executing people with intellectual disabilities. State law didn’t allow for a closed case like Payne’s to be reconsidered with the new restrictions, so he waited 19 years for the law to be updated. Now he waits for Dec. 13, when attorneys will argue again, for his life.
Wednesday’s demonstration marked one year since some of Payne’s supporters, led by the Rev. Dr. Andre Johnson, began holding weekly #FreePervisPayne rallies “to bear witness and keep attention on this case,” Johnson said. The intersection is where anti-death penalty activists have historically protested and held vigils for people executed, he said. Groups around the country matched the event, including in Nashville, Knoxville, Dallas, Los Angeles, and Chicago.
Promptly at 4 p.m., Johnson huddled the crowd, though fire engine sirens barrelling through the intersection interrupted his instructions. To the group’s delight, he responded with the smaller siren on his megaphone, breaking tension for the certainly grim cause. He reminded the crowd that the demonstration was “soft action” to draw attention to Payne’s case.
Johnson asked onlookers to read the evidence at PervisPayne.org and make a determination for themselves. “Everybody that I have talked to … said when they did that, they joined us because they understood that something fishy is going on with this case,” he said.
Rather than force an opinion onto strangers, Johnson says both the injustice in Payne’s case and the racism underpinning capital punishment is so obvious that the curious only need to look.
“I just want people to start asking questions. Why are we hearing these same stories over, and over, and over, again?”
As of April 2021, more than 2,500 people are on death row in the United States, according to an NAACP Legal Defense and Educational Fund report. Black people make up 41% of the country’s death row population despite only being 13% of the total population, the census shows. Tennessee has 48 people on death row, with half of them coming from Shelby County. Black people are 52% of the state’s death row inmates, despite only being 17% of the state’s population.
For 52 weeks, Johnson and a fluctuating crowd have committed to demonstrating despite busy schedules, rain or snow. “I can stand out in the heat and the cold for an hour if he’s been in jail for 34 years,” Johnson said.
As sign wavers got into place at each corner, Kelley Henry, Payne’s public defender, explained before TV cameras that a racist stereotype — Black men as hypersexual predators of white women — was used to wrongfully convict Payne. It’s the same narrative used for lynching innocent Black men in the Jim Crow era, she noted.
“Those themes have never gone away,” said Henry, who is also white.
No stranger to the sluggishness of the criminal justice system, Henry said several delays in justice for Payne were avoidable.
“Just take this intellectual disability issue,” Henry said. “Others on behalf of Pervis raised this issue over a decade ago, but it took six lawsuits and a change in the statute to get us to where we are today. Pervis asked for DNA in 2007 and was wrongfully denied…(It) took until 2020, 13 years later, to get the DNA. That’s not justice for anyone.”
Elected officials could still make haste for Payne, she said, and named Gov. Bill Lee, whose clemency powers could take Payne’s life out of jeopardy. In November, due to pandemic disruption, Lee granted a since-expired reprieve for Payne’s execution, once set for Dec. 3, 2020. Henry also pointed to Shelby County District Attorney Amy Weirich, whose office could be a strong ally to Payne’s case — but hasn’t been.
“(The prosecutors) can go to the governor and say, ‘There’s too much doubt in this case, we join with the request for clemency,’” Henry said. “They could go to the judge in this case and say, ‘We’ve looked at the evidence, and we agree that he is intellectually disabled’ — if that was the mindset that they wanted to adopt — which is one of fairness and justice.”
Makyah Malone, 16, who is distantly related to Payne, offered no excuse for the elected officials who haven’t intervened.
“It’s a choice. We all get to make choices in life. Sometimes we make the wrong one, sometimes you make the right one, sometimes it’s — clearly — the right choice to make,” Malone said.
“At this point (the decision is), am I going to do the right thing? Do I want to make things right? If I say, I want to heal, to make things better for this state, am I going to take steps to do that?”
Payne’s day of justice could come, but for each incarcerated day and year of lag, he pays with life he could’ve lived.
That cost is demonstrated, Henry said, in a moment shared by Rolanda Holman, Payne’s living sister.
“Rolanda talks about how every year at Christmas, her mom would say, ‘Pervis is coming home this year.’ She’d set a place for him at the table. And she died without Pervis coming home. She never got to see her baby free.”
At the Riverbend Maximum Security Institution in Nashville, Payne sometimes works sanitation, Henry said. He was 20 when police arrested him; now 54, Payne has spent more of his life in prison than home.
“He missed graduations, marriages, births, all of those milestones in life that we mark,” Henry said. “He had to experience them the best he could by what people tell him.”
Payne sometimes speaks to friends and family; his mother visited him often until she died. Payne’s older sister has also passed away. However, his father, who is 79, continued regular visits until the pandemic and Parkinson’s disease complicated those trips. Still, Payne maintains faith for his freedom, Henry said — and so do the protestors.
As passing drivers affirmed the demonstrators’ efforts with a cacophony of car horns, Sheila Talley-Robertson, who has attended rallies from the beginning, said the commitment is a small gesture but effective at raising public knowledge of Payne’s case. Although she isn’t related to Payne, she feels obligated as a mother to show up each week.
“I have a son, and I would be fighting like hell to prove my son’s innocence,” Talley-Robertson said. “Pervis’ mother is deceased, so I’m standing in the gap for her. … I am standing in the gap for every mother, Black or white, who has an innocent child — especially on death row.”
Carrington J. Tatum is a corps member with Report for America, a national service program that places journalists in local newsrooms. Email him at email@example.com
This story is brought to you by MLK50: Justice Through Journalism, a nonprofit newsroom focused on poverty, power and policy in Memphis. Support independent journalism by making a tax-deductible donation today. MLK50 is also supported by these generous donors.