Byron Lewis Black, 69, is scheduled to be executed on Aug. 5. He was sentenced to death in 1989 for murdering his ex-girlfriend, Angela Clay, and her two daughters, Latoya and Lakeisha. He also received two life sentences.
Executing a person with intellectual disabilities is unconstitutional under U.S. Supreme Court precedent. In a motion for a stay filed Monday evening, Black's attorneys told the justices that his IQ scores reflect "subaverage intellectual functioning."
"Every expert who has evaluated Mr. Black has concluded that he is a person living with intellectual disability," Kelley J. Henry, a federal defender representing Black, said in the motion.
The Supreme Court ruled in 2002 in Atkins v. Virginia
that executing a person with intellectual disabilities violates the Eighth Amendment's ban on cruel and unusual punishments, but also left it to the states to determine who has intellectual disability.In 2004, a state court found that Black was not intellectually disabled and could not escape the death penalty. The court relied in part on testimony by a state witness, Dr. Susan Redmond-Vaught, who said that Black had not met state law standards defining intellectual disability, which at the time referred to it as "mental retardation." A state appellate court affirmed a year later and the Tennessee Supreme Court declined to hear Black's case.
While Black's case went through the federal habeas process in the years that followed, standards around intellectual disability, both clinical and legal, evolved.
Supreme Court rulings in Hall v. Florida
, Brumfield v. Cain and Moore v. Texas — which came down in 2014, 2015 and 2019, respectively — determined that IQ scores aren't the only factors to be considered when determining disability and that judicial determinations must be informed by scientific consensus.In May 2021, Tennessee updated its statutory definition of intellectual disability and revised the procedures for determining it, aligning the state law with modern clinical standards and recent Supreme Court rulings. The new law applies retroactively to people on death row who never had a proper hearing on their disability claims.
Redmond-Vaught later reversed her opinion, writing in a new report that "based on current scientific knowledge and standards of clinical practice, Mr. Black does meet the onset criteria for the diagnosis of intellectual disability." She cited the 2021 legal changes and the consensus among other experts who had long found Black to be intellectually disabled.
In light of that expert consensus — including Redmond-Vaught's reversal — the state of Tennessee stipulated that Black is intellectually disabled and should have his death sentence commuted to life in prison, consecutive to his other sentences.
Black returned to court with this new evidence but was blocked by procedural hurdles. A state trial court ruled that the 2004 determination barred him from receiving the benefit of the new law. A state appellate court agreed, finding it lacked jurisdiction to remove him from death row.
"We've described it as a constitutional Catch-22," Henry said. "We'll execute you anyway, even though, as a matter of fact, you aren't eligible for the death penalty under established precedent. That's the core injustice of it."
But last month, the U.S. Supreme Court said it would hear Hamm v. Smith, a case involving an Alabama death row prisoner, Joseph Clifton Smith, in which the justices will determine whether and how courts may consider the cumulative effect of multiple IQ scores in assessing intellectual disability claims. That issue has divided the courts of appeals.
The decision to grant certiorari in Hamm v. Smith provided Black, whose case is mentioned in Smith's cert petition, a procedural hook to argue his own case.
A resolution in the Smith case next term could mean life or death for Black, his attorneys argued in a petition for certiorari filed Monday alongside the motion for a stay.
"Given that the court is already considering a related issue in Hamm," the stay application said. "Mr. Black has established that he is likely to succeed on the merits of his claim" and his execution should not proceed.
Black's IQ scores — 57, 67, 69, 73, and 76 — are all within the range associated with intellectual disability. But courts have ignored those scores, relying instead on group-administered school tests that experts say are not valid for diagnostic purposes, the petition argued.
Experts and people close to Black — family, friends, coaches — have consistently described him as slow to learn, with significant lifelong deficits in adaptive functioning. As a child, he struggled to understand basic games. As an adult, he never lived independently — even after marrying and having a child. His ex-wife described him as "childish" and reliant on relatives for support. He could not cook, operate a washing machine or manage money. He never maintained a checking account.
Black also exhibits memory, language and attention deficits that have worsened with age and dementia. He often smiles inappropriately, is overly familiar with strangers and has difficulty recognizing social boundaries — traits dating back to childhood, when peers described him as unable to read social cues and being socially isolated.
In a separate cert petition filed June 21, still pending, Black's attorneys also argued that he is not mentally competent to be executed.
"We have asked the U.S. Supreme Court to look at the case, grant us to stay and at the very least hold for us, because it would just be so wrong to execute Mr. Black," Henry said, adding that the Tennessee Attorney General's Office is "standing behind procedural technicalities" in opposing Black's bid to avoid execution.
"They're just unwilling to even look at the injustice in the case," she said.
The Tennessee Attorney General's Office did not immediately respond to a request for comment on Tuesday.
--Editing by Rich Mills.