| On Tuesday morning, Tennessee plans to execute Byron Black for the March 1988 murders of Angela Clay and her two children. The killings were motivated by Black’s anger and jealousy over the prospect that Clay, whom he had dated, was going to reconcile with her husband. |
| This would be Tennessee’s second execution since it resumed carrying them out earlier this year after a five-year hiatus. But the man who will be put to death bears little resemblance to the person who carried out that gruesome crime almost forty years ago. |
| As an article in The Tennesseannotes, “The state has declared Black intellectually disabled. He uses a wheelchair and suffers from dementia, brain damage, and heart failure.” Still, the state insists on its pound of flesh. |
| “This isn’t,” Robin Maher, executive director of the Death Penalty Information Center, observes, “the image that most people have when we think about who we are reserving for the death penalty.” In fact, Black’s case vividly illustrates some of the absurdities of America’s death penalty. |
| His death will neither protect residents of the Volunteer State from a dangerous criminal nor vindicate the interests of justice. However, executing Black will expose the cruelty and callous indifference associated with killing someone who may barely understand what is happening to him and experience great pain. |
| It is hard to know where to begin in recounting Tennessee’s folly in proceeding with Black’s execution. |
| Let’s start with the fact that Black has an IQ below the threshold for identifying an intellectual disability. The Nashville Bannerreports that “Childhood friends and academic records obtained by his defense team indicate that Black—a descendant of enslaved African Americans and a student of segregated schools—showed his cognitive and developmental deficiencies from an early age.” |
| As the United States Supreme Court explained in its 2002 decision in Atkins v. Virginia, “Because of their disabilities in areas of reasoning, judgment, and control of their impulses…[people with intellectual disabilities] do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings” where they are defendants. |
| That danger was apparent during Black’s 1989 trial. As one of his lawyers observed, Black was “delusional about what was going on.” |
| He had “no clue” about what was going on during the proceedings and “lacked the ability to process what had been occurring.” Black “couldn’t understand how anything in the courtroom affected him, and he didn’t understand the implications of the witnesses’ testimony.” |
| Moreover, as the Supreme Court pointed out in Atkins, the prospect of a death sentence will neither deter nor provide retribution for crimes committed by people with intellectual disabilities. For those people, it “'is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence an unconstitutional punishment.” |
| But the Atkins decision did not help Black because a Tennessee statute prevented death-row prisoners from making claims about intellectual disabilities to state courts “if their death sentences had already been upheld on appeal before the U.S. Supreme Court ruled in 2002 that the death penalty could not be used against individuals with intellectual disability.” |
| That law was changed in 2021. But the Tennessee courts still said that Black could not take advantage of it because “his claim was already denied in 2004.” |
| If Black is put to death, he will be the first person in Tennessee with an intellectual disability to suffer that fate in the last half century. And, as The Tennessean explains, “[i]f Black were tried today, he would not be eligible for execution under the new standards of intellectual disability.” |
| On July 8, the state supreme court denied his request for a new competency hearing. “To the extent Mr. Black seeks to relitigate his claim that he is 'intellectually disabled’ and therefore ineligible for the death penalty,” the court wrote, “that question was fully litigated—repeatedly—in prior proceedings. Mr. Black did not prevail in those rulings, and appeals became final long ago, and he cannot relitigate those adverse rulings in this competency proceeding.” |
| It continued, “To the extent Mr. Black is asking this Court to reconsider the standard for competency to be executed and adopt a standard that differs from longstanding precedent from this Court and the United States Supreme Court, we decline to do so.” |
| Sound absurd? Welcome to the world of America’s death penalty. |
| But there is more. |
| Because of his heart problems, Black has an ICD in his chest. As he contemplates the prospect of dying from a single dose of pentobarbital, the lethal injection method used in Tennessee, he is justifiably concerned that the defibrillator will cause complications during his execution. |
| He sued seeking a court order requiring the state, “[t]o deactivate the ICD via a particular method immediately before, or simultaneously with, the execution. He argued the lethal dose of pentobarbital will trigger the ICD, prolong his execution, and inflict extreme pain in violation of the Eighth Amendment.” |
| He prevailed in the trial court after an expert testified that “Black could experience extremely painful, repeated shocks and a prolonged execution as the lethal injection drug shuts down his system, triggering the emergency heart device.” |
| But on July 31, the state supreme court reversed that decision. |
| It explained that the hospital that manages his medical care was not willing to deactivate the ICD at the execution site. It was, however, willing to do so at the hospital the day before his scheduled execution. Black did not want it done that way, fearing that his heart might fail when the ICD was removed. |
| Ignoring Black’s fears and the possibility of a botched execution, the supreme court ruled that the trial court had exceeded its authority by, in effect, modifying what the court called its “unconditional execution order.” |
| The lower court’s decision “effectively and practically operated as a stay of this court’s execution order.” That court “does not have the authority to stay, modify, or condition this court’s execution order.” |
| The state supreme court ignored the substance of Black’s request. It was lost in the maze of procedural and jurisdictional complexities. |
| An absurd, but all too familiar part of the death penalty process in the United States. |
| If any state in this country insists on carrying out executions, it surely should do better than Tennessee has done in Black’s case. But because they don’t seem willing or able to do so, it is time to stop the death penalty system’s assault on American sensibility and values. |
Have friends who like law? Forward this email. 
Like Verdict for legal discussions on Facebook. 
Follow @verdictjustia for news and updates on Twitter. 
