Next on California's death row: an inmate who's over 70

While Californians debate whether Gov. Arnold Schwarzenegger should grant clemency to convicted murderer Stanley "Tookie" Williams, a legal battle has just gotten under way 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 will turn 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 ill health.

His situation is dramatically different from that of Williams, the 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 prominent clergymen, celebrities and activists proclaimed that Williams has redeemed himself through his anti-gang activities.

In contrast, Allen has displayed no visible public support, and the last appeals court to review his case characterized his crimes as the very type that 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 so old and infirm that he appears to no longer pose a threat?

There are now five condemned men in California who are over 70 and nearly three dozen in their 60s. Since California reinstated capital punishment in 1978, 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.

While 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 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 to pay 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 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 9th U.S. Circuit Court of Appeals, who was appointed by President Clinton and who has voted to reverse some death sentences, wrote in May 2004 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 oldest man on death row anywhere in the United States is 89-year-old LeRoy Nash in Arizona. He was sentenced to death row 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."