Death Penalty: People of Color With Intellectual Disabilities Disproportionately

Pervis Payne has spent 33 years on death row
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Photo: Pervis Payne

Christina Swarns, executive director of the Innocence Project says the death penalty disproportionately harms people of color with intellectual disabilities like Pervis Payne (above) who has spent 33 years on death row.

In March, Virginia became the first Southern state to abolish the death penalty.

This is a monumental step in the fight to free innocent people. Virginia Governor Ralph Northam, who signed the bill into law, emphasized its necessity by citing the case of Earl Washington, a former Innocence Project client, who was granted a stay of execution just days before his scheduled execution and was later exonerated by DNA evidence.

Mr. Washington, who was sentenced to death in 1983, is Black and — unknown to many — has an intellectual disability. Because of his intellectual disability, he was more susceptible to police pressure to confess to a rape and murder he did not commit. He spent 10 years on death row and seven more years in prison before he was finally released in January 2001.

A year later, in 2002, the Supreme Court ruled that the execution of people with intellectual disabilities violates the Eighth Amendment’s prohibition against cruel and unusual punishment. And yet, at the Innocence Project, we know that people with intellectual disabilities — especially people of color — are still particularly vulnerable to wrongful capital murder convictions and death sentences. In fact, a Death Penalty Information Center (DPIC) review of more than 130 cases involving death sentences that were overturned because of intellectual disability found that more than 80% involved people of color.

Take a moment to read my latest piece about the how the death penalty disproportionately hurts people of color with intellectual disabilities.

Nowhere are the discrepancies more evident than in Tennessee, where Pervis Payne has spent 33 years on death row for a murder he has always maintained he did not commit. Like Mr. Washington, Mr. Payne is a Black man living with an intellectual disability.

Despite having no criminal record or motive to commit the crime, he was convicted of murder in Shelby County. Mr. Payne’s case exemplifies some of our criminal legal system’s worst injustices — including a racially charged trial that painted him as a hypersexual drug user without merit, procedural flaws that led to the disappearance of critical evidence, a refusal to recognize his intellectual disability’s impact on his own defense, and a disgraceful, unconstitutional sentence.

Mr. Payne’s and Mr. Washington’s cases show how far we still have to go in the fight for justice. It’s time for us to ask with brutal candor: Are we comfortable executing Black and brown men at a vastly disproportionate rate, in broken legal systems, and under circumstances that raise the very real risk of executing an innocent person? Can we turn a blind eye to the fact that states can and do execute people who live with intellectual disabilities?

I have been inspired by all of the support that this community has given to Pervis Payne, including rallying in Memphis to support his case ahead of a status conference on his intellectual disability claim.

I know that together we can and will create a more just and fair system for all.

If you have a moment today, read my full article on the death penalty and intellectual disability, and then share it with your friends and family online.

Christina Swarns

Executive Director

Innocence Project

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