Aging, Ill Inmate Is Next in Line for Execution

By Henry Weinstein

Dec. 12, 2005 12 AM PT

Times Staff Writer

While Californians debate whether Gov. Arnold Schwarzenegger should grant clemency to convicted murderer Stanley Tookie Williams, a legal battle has just gotten underway over the fate of the next man set for execution in California -- Clarence Ray Allen, who has a Jan. 17 date to die.

Allen, who turns 76 on Jan. 16, was condemned to death for commissioning the murders of three people while he was behind bars. Legally blind and confined to a wheelchair, Allen would be the oldest and most infirm inmate to be executed in the state since California reinstated the death penalty in 1978. His clemency campaign is expected to focus on his age and poor health.

His situation is dramatically different from that of Williams, a co-founder of the Crips gang, who has been the subject of an unusual, highly visible clemency campaign. Full-page newspaper advertisements and speeches from clergymen, celebrities and activists proclaimed that Williams has redeemed himself through his anti-gang activities.

In contrast, Allen has not displayed any visible public support, and the last appeals court to review his case characterized his crimes as the very type the death penalty was designed to address.

But Allen’s attorneys have raised a question that is likely to recur, with the “graying” of death rows around the country and the concomitant health problems afflicting many elderly inmates: Is it appropriate to execute someone who is old and infirm?

There are now five condemned men in California who are over 70 and nearly three dozen in their 60s. Since California reinstated capital punishment, 31 men have died on death row of natural causes and 11 have been executed. The oldest person executed in California in the modern era was 62-year-old Donald Beardslee, who was killed earlier this year.

Though there has been sharp debate in recent years over the execution of individuals for crimes committed as juveniles, there is no law anywhere in the country setting an upper age limit for execution. And although governors and parole boards have occasionally granted clemency to condemned inmates because of mental illness, no death sentence has been commuted based solely on age or illness.

Allen’s attorneys maintain that executing him “would violate our sense of decency, create a shameful and ghoulish spectacle, and serve no penological purpose.”

“Mr. Allen is seriously ailing. For years he has had chronic heart disease, and on Sept. 2, 2005, he suffered a massive heart attack and nearly died,” said Somnath Raj Chatterjee, one of Allen’s appellate attorneys.

“Ample reasons support allowing Mr. Allen to spend the short remainder of his fragile life securely locked up in prison.”

Allen’s lawyers appear to have no stronger argument than his age and condition. His criminal history is especially unsavory.

Allen was convicted of arranging the murder in 1974 of his son’s girlfriend, Mary Sue Kitts, who was a potential witness against him in a market burglary case. While serving a life sentence at Folsom State Prison for contracting Kitts’ murder, he offered another inmate, Billy Ray Hamilton, $25,000 to kill eight people who had testified against him in the Kitts murder case.

After getting out of prison, Hamilton in 1980 killed one of the witnesses, Bryan Schletewitz, son of the store owner, and two young market employees, Josephine Rocha and Douglas White. Allen was convicted of the three murders, and of conspiracy to murder the eight witnesses.

In rejecting his bid to have his sentence overturned, Judge Kim McLane Wardlaw of the U.S. 9th Circuit Court of Appeals, who was appointed by President Clinton and who has voted to reverse some death sentences, wrote that the circumstances of the killings suggest that Allen remains a menace.

“Evidence of Allen’s guilt is overwhelming. Given the nature of his crimes, sentencing him to another life term would achieve none of the traditional purposes underlying punishment,” Wardlaw wrote. “Allen continues to pose a threat to society, indeed to those very persons who testified against him.... He has shown himself more than capable of arranging murders from behind bars. If the death penalty is to serve any purpose at all, it is to prevent the very sort of murderous conduct for which Allen was convicted.”

Late last week, Chatterjee and three other attorneys representing Allen filed a lawsuit in federal district court in San Francisco seeking to delay his execution on the grounds that his poor health has made it impossible for him to meaningfully assist his attorneys in the preparation of a clemency petition.

The suit asserts that officials at San Quentin State Prison and the state Department of Corrections “have manifested gross indifference” to Allen’s medical needs. “Among other things, they have cut off prescribed medications, delayed delivering necessary medications despite adverse ill effects suffered by Mr. Allen” and have “failed to provide recommended and necessary medical procedures,” including heart bypass surgery recommended by doctors employed by the state.

These actions have “materially impeded Mr. Allen’s ability to timely prepare an adequate petition for clemency to the governor,” and represent cruel and unusual punishment, according to the suit.

“There is evidence that Mr. Allen suffers from organic brain damage, a mitigating factor that may support a grant of clemency,” attorneys Chatterjee, Charles E. Patterson, Annette P. Carnegie and Michael Satris assert. In recent months, Allen has been moved among San Quentin, hospitals in Marin and Napa counties and Corcoran State Prison, according to records.

Ward Campbell, the deputy attorney general who has been working on Allen’s case for nearly a quarter of a century, said his office would vigorously oppose any requests for a delay. “We don’t think what Mr. Allen is claiming would justify any delay in the clemency process or the execution,” Campbell said.

He said it has been obvious that the defense would have to prepare clemency papers and “it is dubious to me that they have not had the opportunity or the access to Mr. Allen to prepare a clemency petition.”

Citing language in Judge Wardlaw’s opinion, Campbell said Allen’s case was “one of the most egregious in modern death penalty jurisprudence.”

“What Allen did attacked the very heart of the criminal justice system,” Campbell said. “I don’t know of any case to match it.”

But he acknowledged that Schwarzenegger “is free to consider any factor” -- including Allen’s age -- “that he thinks justifies mercy in a particular case.”

The oldest man on death row anywhere in the United States is 89-year-old LeRoy Nash in Arizona. He was sentenced to death for killing a coin shop employee in 1982, after he escaped from the Utah State Prison. He does not have an execution date.

Next week, though, Mississippi is scheduled to execute John Nixon, 77, despite protests from a former Mississippi Supreme Court judge that executing an elderly man offends “the moral values of our people.”

Last year, attorneys for James B. Hubbard, a 74-year-old man afflicted with cancer, emphysema and dementia, were unable to persuade either a federal appeals court or Alabama Gov. Bob Riley to spare his life for a 1977 murder.

Willie Minor, another Alabama death row inmate, wrote a clemency petition on Hubbard’s behalf, asserting that killing “this elderly and sick man” would “be offensive to every civilized Alabamian.”

But Clay Crenshaw, head of the capital litigation unit of the Alabama attorney general’s office, told the Birmingham News, “Just because [Hubbard] chose to murder somebody when he was [47] doesn’t mean he should obtain some benefit from that just because he’s a little older than some death row inmates.”

Hubbard was the oldest person executed in the U.S. since 1941, when Colorado executed 76-year-old James Stephens.