\n<\/p>\n
On the Sunday<\/span> before Byron Black was moved from his death row cell to the isolation pod where he would await execution, Carolyn Weaver entered Riverbend Maximum Security Institution in Nashville, where she regularly visits a different man on death row. Weekend visitation usually takes place in a room limited to four families at a time, and she was used to seeing Black\u2019s younger sister Freda. But that morning, the guards said, \u201cWe\u2019re going to do it a little different today.\u201d More of Black\u2019s relatives were coming, and they would have their own room. It was one of the family\u2019s last opportunities to visit Black. He was scheduled to die two weeks later, on August 5.<\/p>\n Black was born and raised in Nashville, less than 20 minutes from the prison. In 1988, when he was 33 years old, he was arrested for murdering his girlfriend and her two young daughters. Though he maintained his innocence, Black was swiftly convicted and sentenced to die. By the time Weaver met him at Riverbend, he had been on death row for over 30 years.<\/p>\n Weaver started visiting the prison in 2021 after reconnecting with an old boyfriend, Gary Wayne Sutton<\/a>, who has been on death row since 1996. Almost immediately, she learned about Black. \u201cI\u2019ve known about Byron since I started talking to Gary,\u201d she said. \u201cHe would call me, and he\u2019d say, \u2018I just fixed Byron something for dinner.\u2019 Or he would say, \u2018I gotta go get Byron something to eat.\u2019 He was always taking care of Byron.\u201d<\/p>\n Among his neighbors, Black was known as someone who needed help with basic tasks, including bathing and getting dressed. Weaver remembers being taken aback when she first saw him at visitation. \u201cWhen he first came out, he didn\u2019t have a wheelchair,\u201d she recalled. \u201cThey had to put him in one of those office roller chairs and roll him down to visitation. And another inmate did that.\u201d<\/p>\n It was obvious to her that Black\u2019s disabilities were not just physical. \u201cGary will tell you he\u2019s like a kid,\u201d Weaver said. \u201cHe doesn\u2019t even understand how to put a sandwich together.\u201d Interacting with Black, she learned what he meant. \u201cI feel like when I do talk to him, I am talking to a child.\u201d While she found it hard to imagine he could have committed such a heinous crime in his younger days, it was clear to Weaver that he did not pose a threat to anyone now.<\/p>\n Weaver didn\u2019t want to interrupt Black\u2019s visit with his relatives. But she briefly got permission to approach their room to say goodbye. \u201cHe feels like a family member that we\u2019re gonna lose,\u201d she said. She hugged him and \u201ctold him how much we loved him and that we\u2019re still praying that this is not gonna happen.\u201d Two days later, on July 22, Black was taken away. That night, Weaver got a call from Sutton. \u201cHe goes, \u2018It doesn\u2019t seem right. He\u2019s not here. And I\u2019m not fixing his supper.\u2019\u201d<\/p>\n Black is 69 years old and in increasingly poor health. Along with psychological exams that have repeatedly found him to have an intellectual disability, medical records show brain damage, dementia, diabetes, kidney disease, and congestive heart failure. Death row advocate Dan Mann echoes what Weaver described, saying that Black\u2019s neighbors treat him with care. \u201cThey protect him,\u201d he said. Those who know Black say he is a \u201cpeople-pleaser\u201d: \u201cHe\u2019ll tell you whatever he thinks you want to hear, whether or not that thing is grounded in reality.\u201d<\/p>\n The U.S. Supreme Court has held for more than 20 years that executing people with intellectual disabilities violates the Eighth Amendment ban on cruel and unusual punishment. In its landmark 2002 decision Atkins v. Virginia<\/a>, the court ruled that \u201cbecause of their disabilities in areas of reasoning, judgment, and control of their impulses,\u201d people with intellectual disabilities \u201cdo 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.\u201d<\/p>\n But the protections of Atkins have been far from a guarantee. The justices left it to individual states to decide how to apply the ruling, leaving lower courts free to make life and death decisions based on arbitrary, often unscientific standards. This problem has been compounded by the onerous procedural barriers that routinely prevent people on death row from getting back into court. While our understandings of intellectual disability have continued to evolve in the past few decades, death sentences rooted in flawed and discriminatory ideas have remained intact. Although 144 people have seen their death sentences vacated under Atkins, according to the Death Penalty Information Center<\/a>, dozens have been executed in spite of it.<\/p>\n Lawyers for Black have spent decades fighting to prove his intellectual disability in court. Just a few years ago, they had good reason to believe his life might be spared. Propelled by the high-profile case of Pervis Payne<\/a> \u2014 whose death sentence was eventually reduced to life<\/a> amid concerns about his intellectual disability and alleged innocence \u2014 Tennessee lawmakers passed legislation in 2021 to amend existing law prohibiting the execution of people with intellectual disabilities. The provision offered access to a hearing before a trial court to decide, under prevailing legal standards, whether a person should be barred from execution due to an intellectual disability.<\/p>\n \u201cMr. Black finds himself in a constitutional Catch-22.\u201d <\/p>\n<\/blockquote>\n<\/figure>\n In 2022, the Davidson County district attorney general filed a motion acknowledging that Black \u201cdoes, in fact, meet the criteria for a diagnosis of intellectual disability,\u201d and arguing that his death sentence should be reduced to life. But a Nashville judge \u2014 the same judge who presided over Black\u2019s 1989 trial \u2014 rejected the motion on procedural grounds, concluding that because he\u2019d already received a hearing on the matter years earlier, he was not entitled to one now. Black is now on the verge of being executed on a technicality, his advocates argue. \u201cMr. Black finds himself in a constitutional Catch-22,\u201d Kelley Henry, chief of the Capital Habeas Unit in Nashville, wrote in a clemency petition<\/a> to the governor. \u201cIf he had simply delayed in filing his claim, without a doubt, he would obtain relief under the 2021 statute.\u201d<\/p>\n \u201cIf the execution is allowed to move forward, Byron Black would be the first intellectually disabled person executed by Tennessee in the modern era of the death penalty,\u201d Henry wrote. She also warned that his execution will be a \u201cgrotesque spectacle.\u201d Not only will prison staff \u201chave to pick him out of his bed to place him on the gurney,\u201d the heart defibrillator\/pacemaker device implanted in his chest to regulate cardiac function will \u201ccause his heart to restart multiple times during the execution, causing him extreme pain and distress.\u201d<\/p>\n To his advocates and attorneys, executing Black would be gratuitous cruelty. \u201cEvery day his brain and body continue to deteriorate at a rapid rate,\u201d Henry wrote. \u201cHe is absolutely no threat to anyone. The fact that the courts have slammed their doors shut to his righteous intellectual disability claim is not only unconstitutional, it is inhumane.\u201d<\/p>\n Nevertheless, absent intervention from the governor or U.S. Supreme Court, Black will die in the execution chamber shortly after 10 a.m. on Tuesday. He will be the second man executed in Tennessee this year. In May, the state killed<\/a> the oldest man on death row, 75-year-old Oscar Smith, who was sentenced to die in Nashville in 1990.<\/p>\n Like Smith\u2019s case, Black\u2019s conviction and death sentence are, in many ways, a relic of another age. Prosecutors at the time were seeking death sentences at an unprecedented rate; in Nashville, Black\u2019s 1989 trial made headlines for being the fifth death penalty prosecution in six months. Although Davidson County District Attorney General Torry Johnson cited a \u201crash\u201d of terrible crimes at the time, the trend was largely driven by the tough-on-crime politics of the era.<\/p>\n Johnson, who retired in 2014 after 27 years as Nashville\u2019s top prosecutor, has supported death penalty reforms since leaving office. But he did not wish to comment on the litigation in Black\u2019s case. \u201cWhile I did approve seeking of the death penalty against Byron Black, I did not handle the case personally and was not involved in the trial,\u201d he wrote in an email. At the time, his office was \u201cseeking to focus on the worst of the worst,\u201d he added, and \u201cmost of those cases involved multiple victims and often child victims like in the case of Mr. Black.\u201d<\/p>\n <\/p>\n <\/p>\n The crime that<\/span> sent Black to death row was unquestionably heinous.<\/p>\n Angela Clay and her two young daughters were found dead in their home on Monday, March 28, 1988. The 29-year-old single mom lived with her children in a modest two-story apartment building in South Nashville. Nine-year-old Latoya was found with her mother in one bedroom, while her six-year-old sister Lakeisha was found in a separate bedroom. All three had been shot to death.<\/p>\n Black became an immediate suspect. That weekend, he had been out on furlough from the Metropolitan Workhouse, where he had been sentenced to work-release for shooting Clay\u2019s estranged ex-husband. On Sunday, he had picked Clay up from her job at Vanderbilt University Medical Center, then picked up her children at her mother\u2019s home. Relatives who spoke to Clay later that night said she had told Black she planned to return to her husband.<\/p>\n Although there was significant circumstantial evidence against Black, the physical evidence was questionable. The key forensic evidence was provided by a firearm analyst who examined a bullet removed from the shoulder of Clay\u2019s estranged husband and concluded that it had been fired by the same gun used to kill Clay and her daughters. (Although such claims remain ubiquitous among firearm analysts who testify in criminal trials, such forensic analysis is increasingly considered unscientific<\/a> and unreliable.) Pivotal testimony would also come from now-infamous Davidson County medical examiner Charles Harlan, whose botched autopsies and record of misconduct have been linked<\/a> to wrongful convictions.<\/p>\n Questions about Black\u2019s competency were raised almost immediately. At a pretrial hearing, experts were divided about his mental functioning, with Davidson County Circuit Court Judge Walter Kurtz ordering additional psychological evaluations. But Assistant District Attorney Cheryl Blackburn successfully argued that Black \u201cdoesn\u2019t have to be very sophisticated\u201d to stand trial for capital murder. He may not be \u201ca very bright guy,\u201d she conceded, but \u201che is not psychotic and he is not delusional.\u201d<\/p>\n But Black\u2019s trial attorney, Ross Alderman, would later say in a sworn declaration that \u201cByron couldn\u2019t understand how anything in the courtroom affected him, and he didn\u2019t understand the implications of the witnesses\u2019 testimony.\u201d After the jury found him guilty, he leaned toward his attorney and asked, \u201cDo I get to testify now?\u201d<\/p>\n Today, a death penalty trial involves heavy preparation for the sentencing phase. One of the signatures of modern capital defense is a mitigation investigation, in which a legal team compiles deep research on a defendant\u2019s background, including any evidence of poverty, abuse, mental illness, and generational trauma, to uncover information that may be used to persuade jurors to spare a defendant\u2019s life. Black, who descended from enslaved people in Tennessee, attended segregated schools and grew up in an environment shaped by systemic racism. \u201cAs a toddler, he was exposed to toxic lead,\u201d according to the clemency petition. There were also indications that his mother drank alcohol while she was pregnant with Black.<\/p>\n But, according to his trial lawyers, there was little time to probe such mitigating evidence. \u201cOur ability to investigate the case was a function of the fast-track that we were on,\u201d Alderman said in his declaration. \u201cUltimately, the case was tried about a year from the homicide in question, and approximately seven months after arraignment.\u201d<\/p>\n Black\u2019s sentencing hearing took place in just one day. A defense psychologist described Black as having \u201cdelusions of grandeur\u201d as one reporter put it. Although his IQ was \u201cnot quite up into the normal range,\u201d the psychologist said, it was clear he knew the difference between right and wrong. Prosecutors urged jurors to send him to the electric chair. \u201cIf you don\u2019t give him the death penalty for what he did to those two little girls,\u201d one argued, \u201cthen I submit that you\u2019re rewarding him.\u201d Jurors at first remained split about Black\u2019s sentence; after the first five hours of deliberations, the foreman sent a note to the judge asking for more information. Jurors wanted to know how much time Black would spend in prison if they did not sentence him to die. But under Tennessee law at the time, the judge could not answer such questions. Kurtz instructed them to keep deliberating. The jury ultimately sentenced Black to death.<\/p>\nA Relic Of Another Age<\/h2>\n
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A National Consensus<\/h2>\n