I remember reading Justice Antonin Scalia’s opinion in the 1993 Herrera v. Collins case with my mouth gaping open. In that case, Justice Scalia opined that the Constitution does not stop the government from executing someone, even if new evidence indicates that the person may be “actually innocent.” At the time of Herrera, only one other justice agreed with this distorted analysis: Clarence Thomas.

The court has changed.

Radley Balko’s recent opinion piece in the Washington Post demonstrates how a once unthinkable position was made law in the 6-3 Shinn v. Ramirez ruling. In Shinn, SCOTUS determined that even though the court did not find the innocence claims of Barry Lee Jones, a man on Arizona’s death row, to be unpersuasive, it did find that the federal courts were barred from considering them. Clarence Thomas wrote the opinion.

If you are baffled as to how the highest court in our nation could determine that actual innocence isn’t enough to protect a person from execution, join the club. When the final arbiter in our criminal legal system determines that expediency and procedure trump getting to the truth, administering actual justice, and ensuring that the innocent are not executed, our system is in terrible trouble. Under no circumstance should anyone face execution if, as the title of Balko’s article frighteningly summarizes, “The Supreme Court says guilt is now beside the point.”

Balko closes his piece by revisiting Mr. Jones case:

Every court to consider the actual merits of Barry Jones’s innocence claim has ruled that he should never have been convicted of murder. And every court to rule against Jones did so for procedural reasons without considering the new evidence. If Jones is executed, it will not be because there is overwhelming evidence of his guilt. It will be because of a technicality. During oral arguments in 2021 for last week’s ruling, Brunn Roysden of the Arizona attorney general’s office said something that ought to chill us to the bone. When a federal court is deciding whether it has the power to overturn a state conviction, he said, “innocence isn’t enough.” He said it again for emphasis. And then he won

Read Radley Balko’s opinion piece.

On Monday, May 2, Governor Bill Lee announced that the five executions scheduled this year in Tennessee would be halted for an independent review into the problems with the lethal injection preparation that led to Oscar Smith’s reprieve on April 21. Former U.S. Attorney Ed Stanton will oversee the review.

“I review each death penalty case and believe it is an appropriate punishment for heinous crimes,” Lee said in a statement. “However, the death penalty is an extremely serious matter, and I expect the Tennessee Department of Correction to leave no question that procedures are correctly followed.”

For years, attorneys have demonstrated that the drugs used in Tennessee’s lethal injection protocol risk a torturous and unconstitutional execution. Tennessee also relies on correctional staff, without medical training, to oversee this process. The fact that there was an issue on April 21 is a predictable result of such a flawed process and only emphasizes the the depth of the problems with this protocol.

TADP is deeply grateful to Governor Lee for his leadership and recognition that the investigation into the protocol must be independent, transparent, and thorough. This is the right thing to do.

And, if Tennesseans truly want to embrace a culture of life, we should go a step further. We should reject the false narrative that the death penalty makes us safer or provides justice. Instead we should focus our energy and resources on healing and crime prevention. We should invest in trauma informed solutions that focus on accountability, mental health, and early intervention to prevent crime. We should get victims of violence and surviving families of murder victims the help that they need to heal so that their healing isn’t reliant on what happens to the people who’ve caused them harm. 

During this pause on executions as the lethal injection protocols are reviewed, Tennesseans must reexamine our continued reliance on a policy that is failing to prevent future violence, failing to address the needs of those who have been harmed, and failing to make us safer.

Read more about Governor Lee’s decision.

In nature, springtime is ripe with possibility. Trees bud, buttercups bloom, temperatures warm, and life comes alive.

This spring, In sharp contrast to the season, states like Texas and Tennessee schedule death. They “schedule” death, as if an execution is simply another appointment on a calendar like getting a haircut or going to a PTA meeting.

Texas has scheduled the execution of Melissa Lucio for April 27, only 20 days from this posting. Ms. Lucio faces execution for a crime that almost certainly never happened. In 2008, she was sentenced to death for the murder of her 2-year-old daughter Mariah, who died tragically two days after accidentally falling down a flight of stairs. Ms. Lucio was taken into custody and blamed for her child’s death. According to the Innocence Project:

Detectives jumped to judgment and just two hours after Mariah died, took Ms. Lucio in for questioning. During the interrogation, officers berated and intimidated Ms. Lucio, who was pregnant and in shock from the loss of her child, for five hours. Research has shown that survivors of sexual abuse and violence, like Ms. Lucio, are more vulnerable to falsely confessing under such coercive conditions. And experts who have reviewed Ms. Lucio’s case, including reviewed her interrogation records, have concluded that Ms. Lucio “was relentlessly pressured and extensively manipulated” during the interrogation. At 3 a.m., Ms. Lucio said, “I guess I did it,” at 3 a.m. to get the officers to end the interrogation. Her statement was then misconstrued as a confession.

Melissa Lucio has maintained her innocence for 14 years. During her interrogation, she stated more than 80 times that she did not hurt her child, until coerced by police officers.

Before Texas plans to execute Ms. Lucio, Tennessee is planning to execute Oscar Smith, the oldest inmate on Tennessee’s death row at 72 years old, on April 21. Mr. Smith has been on death row since 1990.

Predictably, there are unanswered questions about the evidence used against him and the fairness of the process. On Monday, the Tennessean reported that Mr. Smith’s attorneys have petitioned the court to consider new evidence, demonstrating an unknown person’s DNA is on the murder weapon found at the crime scene where Mr. Smith’s wife, Judy Robird Smith, and her two sons from another marriage, Chad and Jason Burnett were murdered in 1989.

Tennessee has five executions scheduled in 2022, including Mr. Smith’s, more than any other state. Texas is next with four.

In these cases, the same realities become all too clear. Many of the condemned suffered violent abuse and trauma as children at the hands of those who were supposed to protect them. Many have intellectual disability or have developed severe mental illness. And all too often, they were not provided adequate defense during their trials.

In many of the Tennessee cases of those now facing execution and of those already executed, jurors have attested that they did not have an accurate understanding of the sentences the men would receive if not given a death sentence, or they wrongly believed that Tennessee would never carry out the executions. Tennessee did not execute anyone from 1960 to 2000. Jurors also raise the concern that they were not given the option of alternative sentences that juries in Tennessee now have, like life without the possibility of parole, which had yet to become law. In other words, many of those currently scheduled for execution in Tennessee would not receive a death sentence if tried today.

Of course, we can all agree that these are terrible crimes and that surviving family members have suffered immense pain and trauma because of the murder of their loved ones. The hurt is beyond description. But trapping these families in a legal process for decades that only compounds their pain and does not adequately address their financial, emotional, and spiritual need is certainly not the answer. We can do better.

In this month, when people of many faiths celebrate their holiest days, as nature gives way to new life, and as possibility is born, let us seek to honor life, to join together to stop these executions, and to work for a world where the death penalty is no more

Ask Governor Lee to stop the execution of Oscar Smith.

Ask Governor Abbott to stop the execution of Melissa Lucio.

Read the Tennessean story.

Image from Innocence Project

You helped to save two lives this year.

Pervis Payne spent 34 years on Tennessee’s death row, despite strong evidence of his innocence. Like far too many on death row, he is a Black man with intellectual disability. Individuals like Mr. Payne are not the “worst of the worst” as some people claim but are instead the most vulnerable.  

On November 23, Mr. Payne tearfully embraced his attorney in a Memphis courtroom as his death sentence was removed. His fight to prove his innocence is not over, but for the first time in more than three decades, he is free from the threat of execution.

Tennesseans for Alternatives to the Death Penalty has fought for years on behalf of Pervis Payne and that was only possible because of you and supporters like you. Please make a contribution today so that we can fight to save more lives and move Tennessee closer to fully repealing the death penalty.

But Mr. Payne is not the only person whose life you helped to protect. After more than 30 years on death row, Abu-Ali Abdur’Rahman was also saved from execution when his death sentence was commuted to three life sentences on November 9. Mr. Abdur’Rahman lives with post-traumatic stress disorder and other mental health issues, the product of horrific childhood trauma and further trauma as an adult.

Like Mr. Payne, Mr. Abdur’Rahman is Black, and his trial was rife with racial bias, prosecutorial misconduct, and ineffective assistance of counsel. These cases show how Tennessee’s death penalty is fundamentally broken, targeting people with intellectual disability and mental illness, those without resources, and people of color.

TADP worked for decades to educate Tennesseans about Mr. Abdur’Rahman’s case. But many more people wait on Tennessee’s death row, with two execution dates now set for 2022. Your gift to TADP will fight for all of them.

TADP’s collaborative work with the Tennessee Disability Coalition, including our public education and advocacy efforts, moved the Tennessee General Assembly to pass bipartisan legislation preventing the execution of people with intellectual disability.

When Governor Lee signed that bill into law, Mr. Payne’s attorneys were able to request a new hearing on his intellectual disability. Before that hearing even happened, the Shelby County District Attorney saw the writing on the wall and conceded that Mr. Payne should be removed from death row.

Our goal is to end the death penalty—permanently. But while we work toward that goal, 46 people wait on our state’s death row to learn when they will be executed. Two people have been there for nearly 40 years. One man is 71 years old. He is scheduled for execution in Tennessee in April 2022, less than a month after his 72nd birthday.

Some claim this system is working properly. But if the system works, why does it take more than thirty years to fix a mistake? The truth is that Pervis Payne and Abu-Ali Abdur’Rahman are free from death row today not because the system works, but despite the system’s best efforts to execute them.

Your gift provides us with the capacity to educate even more Tennesseans about the failures of the death penalty, to create effective strategies to move the public and lawmakers, to lift up the most impactful voices in the media, and to organize citizens to act for change.

Please make your gift to TADP today, and let’s end the death penalty in Tennessee!

(Photo of Pervis Payne embracing Attorney Kelley Henry at the Nov. 23rd hearing in which his death sentenced was removed)

I woke up last Thursday with a knot in my stomach. The State of Oklahoma was moving forward with the execution of Julius Jones at 4:00 p.m., despite the evidence of his innocence, despite the outcry from millions of people who supported clemency, and despite the Oklahoma Pardon and Parole Board’s recommendation that his sentence be commuted to life with the possibility of parole–not once but twice.

Around noon, while I was on a zoom meeting, I saw a tweet come across my phone saying that Oklahoma Governor Kevin Stitt had just announced that he was commuting Mr. Jones sentence to life without parole. And though this sentence is not what the parole board recommended, it would allow for Mr. Jones to live, to come off death row, and to continue the fight to prove his innocence. There are no words to describe the relief I felt, and I can only imagine how he, his family, and his legal team were feeling.

Then, around 4:15 p.m. as I was in yet another meeting, I saw yet another tweet pop up on my phone. This time it wasn’t about Julius Jones but Pervis Payne.

Shelby County District Attorney Amy Weirich had just announced that her office was conceding that Mr. Payne has an intellectual disability and would recommend the removal of his death sentence.

Mr. Payne’s attorney Kelley Henry responded to the announcement, saying, in part, “The Shelby County District Attorney was right to drop its request for a hearing on Mr. Payne’s intellectual disability. The D.A.’s concession will avoid years of needless litigation. We look forward to Mr. Payne’s resentencing hearing. This is some measure of justice for Mr. Payne and his family, but our fight for full exoneration of this innocent man will continue.”

For those of you in the Memphis area, the Shelby County Criminal Court will hold a hearing to formally set aside Mr. Payne’s death sentence on Tuesday, November 23, 2021, at 9:30 a.m. Tuesday’s hearing is NOT Mr. Payne’s resentencing hearing. If you are able to attend the hearing tomorrow, we encourage you to do so to show your support for Pervis and his family.

After 34 years, Pervis Payne is coming off death row. This extraordinary outcome would not have been possible without the tireless efforts of so many people including Kelley Henry, Rolanda Holman, the Innocence Project, the Pervis Payne clemency team, and all of you who wrote emails, made calls, attended events, held signs, and let your voices be heard.

We at TADP have a great deal to be thankful for as we celebrate the Thanksgiving holiday this week. Your continued support of our work enables us to lift up these stories of injustice, educate our neighbors about this broken policy, and move folks to act for change.

And things are changing.  

Support TADP today as we continue this lifesaving work and move closer to ending Tennessee’s death penalty once and for all.

Yesterday at 6:11 p.m., the State of Missouri executed Ernest Lee Johnson, a man with intellectual disability whose 2008 surgery to remove a brain tumor also took 20% of his brain.

In his last statement before he was executed, Mr. Johnson expressed his remorse for the 1994 murders of three convenience store employees, Mary Bratcher, Fred Jones, and Mabel Scruggs. He continued, “I want to say that I love my family and friends,” adding that he was also grateful for his lawyer. “For all the people that has prayed for me I thank them.”

According to The New York Times, after several court challenges to his death sentence over the years because of testing and deficits that demonstrated his intellectual disability, the Missouri Supreme Court ruled in August that the fact that Mr. Johnson could remember details of the crime showed he was able “to plan, strategize, and problem solve–contrary to a finding of substantial subaverage intelligence.” 

Former Missouri Governor Bob Holden sent a letter to Governor Mike Parsons, asking him to commute Mr. Johnson’s death sentence.

In that letter, Holden stated that Mr. Johnson had a history of medical documentation of his intellectual disability and was likely was born with fetal alcohol spectrum disorder. Mr. Johnson’s communication skills were like that of a 5-year-old child. 

“None of this excuses what Johnson did,” Mr. Holden wrote. “But if our state is to be guided by the rule of law, we must temper our understandable anger with reason and compassion for the most vulnerable among us, including Ernest Johnson.”

On December 13, in a Shelby County courtroom, a hearing will begin for Pervis Payne, another man facing execution who is also living with intellectual disability.

In passing and signing legislation to update the definition of intellectual disability in the Tennessee criminal code and to provide a legal path for some already on death row to have their ID claims fully heard by the courts, the Tennessee General Assembly and Governor Lee did the right thing. 

The Shelby County DA’s office could still do the right thing too, by acknowledging Mr. Payne’s intellectual disability and allowing him to be removed from death row. 

We must not allow what happened to Ernest Johnson happen to Pervis Payne. 

Read the New York Times article. 

On Wednesday, Sept. 8, from 4-5 p.m. CT (5-6 p.m. ET), join with one of 20 groups (and counting!) to rally across Tennessee and from coast to coast to show support for Pervis Payne.

These rallies mark the year anniversary of weekly rallies to Free Pervis Payne, held on the corner of Union and McLean in Memphis.

Please bring your signs, saying: “Free Pervis Payne,” “Justice for Pervis Payne,” etc. and join one of the rallies listed below:

Rally Locations, 4-5 p.m. CT / 5-6 p.m. ET

Memphis:  Corner of Union and McLean 

Cordova: St. Luke Lutheran Church, 2000 Germantown Parkway

Memphis Friends Meeting, 3387 Walnut Grove Road, with rally at the corner of Walnut Grove Road and Prescott St., 4:00-5:30

Munford: St. Mark AME Church, 842 Tipton Road, 4:30-5:30 p.m.

Bolivar: Market St. and Polk, 4-5 p.m. CT

Murfreesboro:  Sidewalk in front of Jason’s Deli, 452 N. Thompson Lane

Knoxville:  Messiah Lutheran Church, 6900 Kingston Pike

Nashville (four locations): 

Corner of John Lewis Way N. and James Robertson Parkway

Second Presbyterian Church, 3511 Belmont Boulevard

West End United Methodist Church, 2200 West End Avenue

Additional Nashville Rally, from 5-6 p.m. CT, at Christ the King, 3001 Belmont Blvd. Meet at the corner of Gale Lane and Belmont Blvd.

If you can’t make it to one of these rallies, you can also invite a few friends and find a street corner to bear witness in your town.

We ask that everyone take photos and post to social media during the rally, using #FreePervisPayne. 

You are also invited to participate in the Power Up for Pervis Payne Facebook Livestream on Sept. 8 at Noon CT. The Innocence Project will feature this event on its Facebook page to provide an update on Mr. Payne’s case.

The host of the Facebook livestream will be Joia Thornton (formerly with TADP and now with the Southern Center for Human Rights).

Speakers for the livestream are: Kelley Henry and Vanessa Potkin, attorneys for Pervis Payne; Rolanda Holman, Pervis Payne’s sister and advocate; and Ndume Olatushani, a man wrongfully convicted and sentenced to death in Tennessee, who spent 20 years on death row before his release.

You can find the event invite at https://fb.me/e/2sw0txEgO

To learn more about Mr. Payne case visit https://tinyrul.com/2da9sznm or visit www.pervispayne.org

I wanted to reach out after the April 20th verdict in which a jury found Derek Chauvin guilty of the murder of George Floyd. The case against Derek Chauvin was just one case where a just verdict was found, after early and sustained efforts of many people outside of the criminal legal system, like 17-year-old Darnella Frazier who witnessed and taped the murder.

As we all know, the death penalty is a continuation of the ugly legacy of both the judicial and extrajudicial lynchings of Black people in America, and it is all too clear that we must do more to address the brutal impact of this legacy within our criminal legal system.

In the face of these daunting challenges, I was heartened to hear yesterday’s verdict, and I am so inspired by the people who made it possible. I wanted to take this opportunity to tell you all that I so appreciate and am so inspired by the work that all of you do to abolish the death penalty and save lives.

Many people are speaking right now about the murder of George Floyd, police brutality, and the systemic racism in America much more knowledgeably and eloquently than I can, but I wanted to convey, as we continue to fight for Pervis Payne and others like him, and against the systemic racism in our criminal legal system, that I am so grateful to know and work with and learn from you all. –Sarah Miller

On February 18, the Death Penalty Information Center (DPIC) added 11 people to its innocence list, bringing to the number of wrongfully convicted individuals sentenced to death in the U.S. since 1973 to 185.  

The new data demonstrate that for every eight people who have been put to death in the U.S. since executions resumed in the 1970s, one person who had been wrongfully convicted and sentenced to death has been exonerated.

DPIC researched every death sentence in the U.S. since 1973 (more than 9,600 death sentences nationwide) and discovered 11 cases of exonerations that were not previously included on the innocence list. 

“Everybody’s worst fear about capital punishment is that innocent people will be wrongfully convicted and executed,” said Robert Dunham, DPIC’s Executive Director.

“But the more we learn about what actually happens in these cases, the worse the problem gets. As long as the legal system involves humans, it is guaranteed to make mistakes. But most innocent people who are wrongfully convicted and sent to death row don’t get there by mistake. The data from these 185 exonerations shows that far more frequently, and particularly with people of color, innocent death row prisoners were convicted because of a combination of police or prosecutorial misconduct and perjury or other false testimony.” The data, Dunham said, “raises serious questions as to whether we can trust the government to fairly, honestly, and reliably carry out the death penalty.” 

According to DPIC, of the 185 exonerations that have occurred since 1973, 69.1 percent (128) have included official misconduct by police, prosecutors, or other government officials. Official misconduct was much more likely in cases involving defendants of color, cases in which exonerations took two decades or more, and cases in which DNA evidence was a significant factor in proving innocence–all of which are also factors in the case of Pervis Payne.

In addition to the 185 individuals who have been exonerated, there are other individuals whose names may finally be added to the list as the fight to exonerate them continues, including two cases from Shelby County.

Pervis Payne, a Black man with intellectual disability, has maintained his innocence for over 30 years. He was convicted in Shelby County, which has a long history of lynchings and racial terror, after the prosecution withheld exculpatory evidence and argued, without evidence, that Mr. Payne was a drug abusing superpredator looking to rape a white woman.

April Alley, the daughter of Sedley Alley, a man executed in 2006 after a court denied DNA testing based on a case that has since been overturned, is currently petitioning for posthumous DNA testing. Mr. Alley said that he was coerced into falsely confessing to a murder, which is supported by details in his statement that do not match the forensic evidence. An expert in false confessions has concluded that Mr. Alley’s confession was likely false.

“The Death Penalty Information Center’s findings are alarming, but not surprising,” Christina Swarns, Executive Director of the Innocence Project, said. “Racism pervades every stage of the criminal legal system and sends far too many innocent people of color to prison and to the execution chamber. The good news is that more Americans are now taking this issue seriously.”

Kirk Bloodsworth, Executive Director of Witness to Innocence and the first death-row survivor to be exonerated by DNA, said the addition of 11 new people to DPIC’s innocence list makes him certain that “innocent people are still on death row today.” He added, “with such a large number of mistakes uncovered, there’s no need to wonder anymore, we can also be sure that innocent people have been executed.” 

Read the report at https://deathpenaltyinfo.org/facts-and-research/dpic-reports/dpic-special-report-the-innocence-epidemic

Read Tennessean article at https://www.tennessean.com/story/news/crime/2021/02/24/tennessee-death-penalty-wrongful-convictions-death-row-lawsuits/4547127001

Pictured Tennessee death row exoneree Paul House and his mother, Joyce House.

“The death penalty has been plagued by inequity and injustice throughout its history, but those problems came into stark focus this year as the pandemic and the protests against police violence heightened the same disparities throughout our national institutions. As the United States engaged in a nationwide conversation about systemic racism, access to resources, and failures of federal leadership, capital punishment mirrored those faults through its racially biased application, inadequate legal protects, and outlier practices of the federal government.” The Death Penalty in 2020: Year End Report from Death Penalty Information Center

As we entered 2020, Tennessee had five executions scheduled. 

As we end 2020, the State has carried out only one. Nicholas Sutton, was executed in February, though he had become a model of redemption and reform. Nick even saved the lives of three correctional staff during his incarceration, while a number of correctional officers as well as surviving families of the murder victims supported clemency. We grieve that another life was lost to violence in Tennessee but are also relieved that the other executions did not go forward. 

With your gift to TADP today, we will continue to keep up the pressure to prevent executions in 2021 while educating even more Tennesseans about why this system is failing.

As COVID-19 took hold in the spring, the Tennessee Supreme Court postponed the scheduled June execution of Oscar Smith and the October execution of Byron Black, but the State was still planning to execute Harold Nichols in August. Because of your support, TADP continued to raise concerns about the risks that carrying out an execution during a pandemic would have to public health while also highlighting the inability of Mr. Nichols’ attorneys to do the necessary clemency work given the limitations placed on them by COVID restrictions and the denial of visits for Mr. Nichols with his spiritual advisor in the months leading up to his execution date. 

And, on July 17, the same week the federal government carried out its first execution in 17 years, Governor Lee announced that he would grant Harold Nichols a reprieve through the end of 2020!

This was the first time that Governor Lee has intervened to stop an execution, and he cited many of the same reasons that TADP raised in granting the reprieve; specifically indicating that he did not believe the process could be fair given the circumstances.

Then, on November 6th, Governor Lee issued another reprieve, this time for Pervis Payne until April 9, 2021. Governor Lee’s stated reason for the reprieve was the public health risk of carrying out an execution during the pandemic, but your overwhelming public support and outreach to the governor on behalf of clemency for Mr. Payne undoubtedly influenced his decision.

Thanks to you, TADP had the funding and the resources to organize and lead this public response. Now, we must keep pushing to see that justice is ultimately done in this case, not only to ensure that Tennessee does not carry out the unconstitutional execution of a person with intellectual disability, but also to stop the execution of a man with strong evidence of innocence. With your support, we will do just that.

The Death Penalty Information Center recently released its Year End Report highlighting the continued erosion of the death penalty across our country. 

The report highlights that in 2020, Colorado became the 22nd state to end the death penalty while Louisiana and Utah reached ten years with no executions. With those actions, 34 states have now abolished the death penalty or have not executed anyone in a decade or more. The Gallup poll found public support for the death penalty at a near half-century low, and opposition to the death penalty at its highest level since the 1960s. Voters elected new anti-death-penalty district attorneys in counties constituting 12% of the current U.S. death row population, and five men were exonerated from death row this year, including Curtis Flowers of Mississippi.

As we look to 2021, your support remains critical to our work of educating Tennesseans about why this racist, expensive, immoral system is failing. Together, we will pursue our mission, working to prevent executions and to damage the death penalty’s brand, while fighting for a more just Tennessee. 

Read DPIC’s Year End Report. (Graphic found in report)