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Inmate says he is too old for execution

SAN FRANCISCO - California's oldest death row inmate - a 75-year-old who is legally blind and nearly deaf - is asking the U.S. Supreme Court to do something it has never done before: block an execution because of the condemned man's advanced age and infirmity.

Clarence Ray Allen's attorneys say executing a feeble old man is cruel and unusual punishment banned by the U.S. Constitution.

Gov. Arnold Schwarzenegger on Friday denied Allen clemency. Barring a last-minute reprieve by the courts, the governor's decision means Allen will become the second-oldest person put to death since the U.S. Supreme Court allowed capital punishment to resume in 1976.

He is set to die by injection Tuesday for ordering three slayings while behind bars for another murder. Allen, who would turn 76 on the eve of his execution if it goes on as scheduled, has been on death row for more than 23 years. He often uses a wheelchair and had to be resuscitated after suffering a heart attack last year at San Quentin Prison.

"The spectacle of Mr. Allen being wheeled into the death chamber, unable to walk and unable to see those who have come to witness his execution, violates all standards of decency and would amount to nothing more than the purposeless and needless imposition of pain and suffering prohibited by the Eighth Amendment," said Annette Carnegie, one of Allen's attorneys.

Schwarzenegger said Allen's age and health did not matter and noted that he committed his crimes at the age of 50.

"His conduct did not result from youth or inexperience, but instead resulted from the hardened and calculating decisions of a mature man," Schwarzenegger said

Allen's death sentence has been delayed by 23 years of appeals. He "should not escape the jury's punishment because our system works deliberately and carefully," Schwarzenegger said.

In his two years in office, Schwarzenegger has denied three petitions for clemency based on claims of innocence, mental incompetence and good behavior or good deeds in prison.

The Supreme Court has said it is cruel and unusual to execute the mentally retarded, those who are so mentally incompetent they do not understand they are about to be executed or why, and inmates who killed when they were juveniles.

But the high court has never stopped an execution because of an inmate's advanced age or physical infirmities.

Sparing Allen could open the way for similar legal challenges from other sickly death row inmates. At the same time, some defense lawyers fear that if Allen prevails, states may restrict death row appeals - for example, by setting firmer filing deadlines - to prevent inmates from trying to run out the clock.

Prosecutors are fighting Allen's last-ditch appeal.

"The U.S. Supreme Court has never spoken to an exception to an upper age limit or a physical illness," said prosecutor Ward Campbell. "As a result, there is no case law from the United States Supreme Court compelling the courts to grant a reprieve."

The California Supreme Court denied similar claims by Allen on Tuesday.

The U.S. Supreme Court in 2004 refused to block the execution of James Hubbard, 74, of Alabama despite his claims of advanced age and mental incompetence.

41: Average age of the nation's condemned prisoners.

90: Age of Viva Leroy Nash of Arizona, the nation's oldest death row inmate.

77: Age of John B. Nixon of Mississippi, the oldest inmate executed in the U.S. since capital punishment was reinstated.

75: Age of Clarence Ray Allen, California death row inmate who says he's too old and frail to be executed.

10: Average number of years prisoners remain on death row.

[Last modified January 14, 2006, 01:39:15]