On November 23, 2021, Pervis Payne was removed from death row after being incarcerated for 34 years on the basis of having an intellectual disability, rather than his actual innocence in a case where he was accused of two counts of first degree murder and one count of assault with the attempt to commit murder. Just one month ago, a Tennessee judge was praised for shortening Payne’s sentence, making him eligible for parole in five years. While Pervis Payne’s lawyer, Kelley Henry, emphasized that the day the decision was announced was “a great day for the Payne family and for Pervis Payne,” the reality for him is that, even if he is granted parole by the parole board, the restrictions placed on him will be anything but the justice and freedom he has been denied for the past three decades.
To “grant” an incarcerated individual parole may resemble freedom, but this freedom is still characterized by being heavily policed under the U.S. carceral system. Finding and maintaining a job and residence after being incarcerated is difficult when applications for both require criminal background checks, which often denies formerly incarcerated individuals the ability to obtain these resources. Additionally, “staying away from ‘disreputable people,’ submitting to warrantless searches,” and paying court debt are equally absurd requirements. When the majority of incarcerated people are from over-policed, low income neighborhoods, ‘disreputable people’ is often defined as: people of color whose behaviors (even ones as nonsensical as loitering – the legacy of vagrancy laws – or being ‘defiant’ in the classroom), have been criminalized and these violations could occur just by virtue of re-entering and living in one’s community. Needless to say, these are only some of the rigid requirements of maintaining one’s parolee status, where the slightest perceived violation prompts the risk of being returned to prison.
In Pervis Payne’s case, parole was granted to him as an option only because of how those who have advocated against his imprisonment have been forced to acquiesce to the norms of court by justifying his existence, only to be painfully denied justice for 34 years. The truth is that going through ‘due process’ – the ‘fair’ norms and procedure of the criminal legal system that every person is entitled to – requires Black trauma, as if it is the gear that keeps the criminal justice system turning. For Pervis Payne, ‘having your day in court’ demands that he lays out all the private reasons why he is deserving of humanity– besides his innocence (since officers of the court have never deemed it relevant). Additionally, during Payne’s trial, he and his advocates were expected to articulate the challenges of existing with an intellectual disability as evidence that he is deserving of their humanity. The implication is that, for Black people, our humanity does not necessarily grant us equitable treatment – evidenced in the fact that even after reliving everything that the court wants to extract, it can still deem your testimony and evidence of it irrelevant.However, in the cases where the court admits some wrongdoing or corrects its ills, it’s praised for its generosity, rather than recognized as doing less than the bare minimum. Henry made a statement after the judge shortened Payne’s sentence stating that: “We are profoundly grateful to Gov. Lee, Rep. GA Hardaway, and the Tennessee Legislature, for answering the call of the Tennessee Supreme Court to modernize our state’s intellectual disability law which paved the way to removing Pervis from death row.” Rather than emphasizing that Payne’s sentence should never have been imposed, lawyers and organizations advocating on his behalf felt the need to pander to those in power in order to do their jobs and enact a diminished form of justice. This behavior speaks to an age-old reliance on the criminal legal system and the ‘generosity’ of its mostly white authority figures to minimize – but never entirely put an end to – the dehumanization of Black and Brown people. While there are recognizable wins resulting from cases that have been rightly overturned, our celebration of Black incarcerated people getting one step closer to freedom should be kept in the context of a carceral institution whose overarching goal is punitive, isolating and dehumanizing. Put differently, our justified enthusiasm for the freedom of the few shouldn’t distract us from the incarceration of the many.
Ultimately, at the root of this case are the ways Black people must navigate an inherently racist and dehumanizing U.S. prison system that continues to exploit the members of society who have historically been (and continue to be) oppressed. But, as we rightfully criticize the U.S. prison system for its systematic ills, there must be a recognition that these institutions will not liberate and remedy the structural issues extracting Black people from their communities and into its cells. While Pervis Payne is an anomaly in that he may live outside the confines of a prison in a matter of years, most individuals who are wrongly convicted will not face the ability to become ‘free’ and will have to continue proving their humanity in the process. So let’s recognize the U.S. prison system for what it is — “the afterlife of slavery.”