On the Sunday 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’s younger sister Freda. But that morning, the guards said, “We’re going to do it a little different today.” More of Black’s relatives were coming, and they would have their own room. It was one of the family’s last opportunities to visit Black. He was scheduled to die two weeks later, on August 5.
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.
Weaver started visiting the prison in 2021 after reconnecting with an old boyfriend, Gary Wayne Sutton, who has been on death row since 1996. Almost immediately, she learned about Black. “I’ve known about Byron since I started talking to Gary,” she said. “He would call me, and he’d say, ‘I just fixed Byron something for dinner.’ Or he would say, ‘I gotta go get Byron something to eat.’ He was always taking care of Byron.”
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. “When he first came out, he didn’t have a wheelchair,” she recalled. “They had to put him in one of those office roller chairs and roll him down to visitation. And another inmate did that.”
It was obvious to her that Black’s disabilities were not just physical. “Gary will tell you he’s like a kid,” Weaver said. “He doesn’t even understand how to put a sandwich together.” Interacting with Black, she learned what he meant. “I feel like when I do talk to him, I am talking to a child.” 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.
Weaver didn’t want to interrupt Black’s visit with his relatives. But she briefly got permission to approach their room to say goodbye. “He feels like a family member that we’re gonna lose,” she said. She hugged him and “told him how much we loved him and that we’re still praying that this is not gonna happen.” Two days later, on July 22, Black was taken away. That night, Weaver got a call from Sutton. “He goes, ‘It doesn’t seem right. He’s not here. And I’m not fixing his supper.’”
A Relic Of Another Age
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’s neighbors treat him with care. “They protect him,” he said. Those who know Black say he is a “people-pleaser”: “He’ll tell you whatever he thinks you want to hear, whether or not that thing is grounded in reality.”
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, the court ruled that “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.”
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, dozens have been executed in spite of it.
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 — whose death sentence was eventually reduced to life amid concerns about his intellectual disability and alleged innocence — 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.
“Mr. Black finds himself in a constitutional Catch-22.”
In 2022, the Davidson County district attorney general filed a motion acknowledging that Black “does, in fact, meet the criteria for a diagnosis of intellectual disability,” and arguing that his death sentence should be reduced to life. But a Nashville judge — the same judge who presided over Black’s 1989 trial — rejected the motion on procedural grounds, concluding that because he’d 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. “Mr. Black finds himself in a constitutional Catch-22,” Kelley Henry, chief of the Capital Habeas Unit in Nashville, wrote in a clemency petition to the governor. “If he had simply delayed in filing his claim, without a doubt, he would obtain relief under the 2021 statute.”
“If 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,” Henry wrote. She also warned that his execution will be a “grotesque spectacle.” Not only will prison staff “have to pick him out of his bed to place him on the gurney,” the heart defibrillator/pacemaker device implanted in his chest to regulate cardiac function will “cause his heart to restart multiple times during the execution, causing him extreme pain and distress.”
To his advocates and attorneys, executing Black would be gratuitous cruelty. “Every day his brain and body continue to deteriorate at a rapid rate,” Henry wrote. “He 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.”
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 the oldest man on death row, 75-year-old Oscar Smith, who was sentenced to die in Nashville in 1990.
Like Smith’s case, Black’s 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’s 1989 trial made headlines for being the fifth death penalty prosecution in six months. Although Davidson County District Attorney General Torry Johnson cited a “rash” of terrible crimes at the time, the trend was largely driven by the tough-on-crime politics of the era.
Johnson, who retired in 2014 after 27 years as Nashville’s top prosecutor, has supported death penalty reforms since leaving office. But he did not wish to comment on the litigation in Black’s case. “While 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,” he wrote in an email. At the time, his office was “seeking to focus on the worst of the worst,” he added, and “most of those cases involved multiple victims and often child victims like in the case of Mr. Black.”
The crime that sent Black to death row was unquestionably heinous.
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.
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’s 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’s home. Relatives who spoke to Clay later that night said she had told Black she planned to return to her husband.
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’s 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 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 to wrongful convictions.
Questions about Black’s 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 “doesn’t have to be very sophisticated” to stand trial for capital murder. He may not be “a very bright guy,” she conceded, but “he is not psychotic and he is not delusional.”
But Black’s trial attorney, Ross Alderman, would later say in a sworn declaration that “Byron couldn’t understand how anything in the courtroom affected him, and he didn’t understand the implications of the witnesses’ testimony.” After the jury found him guilty, he leaned toward his attorney and asked, “Do I get to testify now?”
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’s 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’s life. Black, who descended from enslaved people in Tennessee, attended segregated schools and grew up in an environment shaped by systemic racism. “As a toddler, he was exposed to toxic lead,” according to the clemency petition. There were also indications that his mother drank alcohol while she was pregnant with Black.
But, according to his trial lawyers, there was little time to probe such mitigating evidence. “Our ability to investigate the case was a function of the fast-track that we were on,” Alderman said in his declaration. “Ultimately, the case was tried about a year from the homicide in question, and approximately seven months after arraignment.”
Black’s sentencing hearing took place in just one day. A defense psychologist described Black as having “delusions of grandeur” as one reporter put it. Although his IQ was “not quite up into the normal range,” the psychologist said, it was clear he knew the difference between right and wrong. Prosecutors urged jurors to send him to the electric chair. “If you don’t give him the death penalty for what he did to those two little girls,” one argued, “then I submit that you’re rewarding him.” Jurors at first remained split about Black’s 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.
A National Consensus
A few months after Black was sent to death row, the U.S Supreme Court handed down a ruling in a Texas case, Penry v. Lynaugh, which would raise controversy over the death penalty and people with intellectual disabilities. Although the justices held that such evidence could be used to argue against a death sentence at trial, it should not forbid a death sentence. “While a national consensus against execution of the mentally retarded may someday emerge reflecting the ‘evolving standards of decency that mark the progress of a maturing society,’” Justice Sandra Day O’Connor wrote using the parlance of the time, “there is insufficient evidence of such a consensus today.”
It was true that only one state at the time had passed a bill to prevent the execution of people with intellectual disabilities. In Georgia, the case of Jerome Bowden had sparked a firestorm of controversy. Bowden, a Black man convicted of killing a 55-year-old white woman, was given a last-minute IQ test before his 1986 execution. He scored a 65, which was considered good enough. “I would like to thank the people of this institution for taking such good care of me as they have,” he said, before he was killed in the electric chair.
Bowden’s execution, followed by the Supreme Court ruling in Penry, became a call to action for death penalty opponents. Activists urged legislators across death penalty states to make exemptions for people with intellectual disabilities. Even as executions and new death sentences ramped up throughout the 1990s, lawmakers began passing legislation to forbid such executions.
One of the first to do so was Tennessee, in 1990. “I favor the death penalty,” one Republican said during the legislative debate. “But in my view it is just not proper in a civilized society for the state to execute children and the [intellectually disabled].” The law ultimately laid out three factors to determine intellectual disability: an IQ of 70 or below, “deficits in adaptive behavior,” and evidence that the intellectual disability manifested before the age of 18.
The law did not help Black, since it was not made retroactive. But it helped turn the tide of public opinion. By the time Atkins was decided in 2002, 18 states had passed laws banning the execution of people with intellectual disabilities, a fact that led O’Connor to revisit her previous position and side with the majority. “In the light of the dramatic shift in the state legislative landscape that has occurred in the past 13 years, it is fair to say that a national consensus has developed,” the justice wrote.
By then, the Tennessee Supreme Court had already ruled in 2001 that executing people with intellectual disabilities violated the state and federal constitutions. Months after Atkins, Black filed a new challenge to his case based on both rulings. At a 2004 evidentiary hearing before Black’s trial judge, multiple experts testified that he was clearly intellectually disabled, while also explaining that it is not uncommon for people to try to hide signs of his disability. One expert report described Black as “exceptionally polite and friendly” during his evaluation, as well as “concerned that he might have come across as less intelligent than he really is.”
But state experts testified that there was little evidence that Black’s intellectual disability had manifested before age 18. Nor had he shown sufficient deficits in adaptive behavior. He had played high school football, found a job as a courier, gotten married, and fathered a child. Although he had never lived independently of his family, including during his five-year marriage, this did not mean he was incapable of doing so.
Kurtz ruled against Black. But the decision would not age well. The notion that people with intellectual disabilities do not get married or hold jobs is rooted in old stereotypes rather than science. Over the years, additional relatives and family friends told Black’s lawyers that, while they had not previously thought of Black as having an intellectual disability, he had been “different” and dependent on his family. “Looking back on it … everyone sort of recognized and compensated for Byron’s inabilities,” one childhood friend wrote in a sworn declaration. “Byron needed his family to prop him up.”
In 2022, one of the state’s key experts, who had not examined Black before testifying for the state, told Black’s legal team that she had changed her mind. Under current diagnostic standards and Tennessee law, she wrote in a new report, Black “does meet the criteria for the diagnosis of intellectual disability.”
The report would help form the basis of a new motion to Kurtz, from the same office that sent him to death row in 1989. Davidson County District Attorney General Glenn Funk wrote, “the State stipulates that [Black] would be found intellectually disabled were a hearing to be conducted.” He had even met with Clay’s family to explain the change in the law. “These family members still want Mr. Black executed,” he wrote. “However, under current law and the medical reports before the Court, the State concedes that the [Black’s] capital sentence should be commuted to one of life in prison.”
But Kurtz rejected the motion, concluding that, because Black had already had a chance to present the evidence of his intellectual disability, he was barred from presenting it again. Today, Henry, the Capital Habeas Unit chief, argues, “every single expert who has actually evaluated Mr. Black has concluded that he is intellectually disabled.” But Tennessee is prepared to execute him anyway.
This past Saturday, Weaver drove to Nashville from her home in East Tennessee for her usual weekend visit. On Sunday morning, Black was moved to his death watch cell, which is adjacent to the execution chamber. At Riverbend, Weaver spotted prison guards carrying Black’s shower chair and his meal tray. Among advocates, there was mounting concern that Black did not fully comprehend what was about to happen to him. There was growing fear about what he might experience in the execution chamber. Weaver worried about Black’s neighbors, who have seen eight men taken to die since 2018.
Most of all, she felt anguish for Black’s family, especially his sisters, who have stayed devoted to him for 36 years. “This is their baby brother,” she said. “And that’s what a lot of people forget. Yes, we feel bad for the victims. But their family are victims as well. … They’re hurting, too.”