Supreme Court won't stop execution of killer, 76

Associated Press

SAN FRANCISCO � The U.S. Supreme Court rejected an appeal today from a 76-year-old convicted killer who argued that he was too old and feeble to be executed.

The ruling cleared the way for Clarence Ray Allen � legally blind, nearly deaf and in a wheelchair � to be executed by injection early Tuesday for a triple murder he ordered from behind bars to silence witnesses to another killing.

Allen, whose birthday was today, stood to become the oldest person executed in California � and the second-oldest put to death nationally � since the Supreme Court allowed capital punishment to resume in 1976.

He raised two claims never before endorsed by the high court: that executing a frail old man would violate the U.S. Constitution's ban on cruel and unusual punishment, and that the 23 years he spent on death row were unconstitutionally cruel as well.

The high court rejected all three of his requests for a stay of execution, about 10 hours before he was to be put to death.

On one of those orders, Justice Stephen Breyer filed a dissent, saying: "Petitioner is 76 years old, blind, suffers from diabetes and is confined to a wheelchair, and has been on death row for 23 years. I believe that in the circumstances he raises a significant question as to whether his execution would constitute cruel and unusual punishment. I would grant the application for stay."

The Supreme Court has never set an upper age limit for executions or created an exception for physical infirmity.

Gov. Arnold Schwarzenegger, the California Supreme Court and a federal appeals court previously refused to spare Allen's life.

Allen went to prison for having his teenage son's 17-year-old girlfriend murdered for fear she would tell police about a grocery-store burglary. While behind bars, he tried to have witnesses in the case wiped out, prosecutors said. He was sentenced to death in 1982 for hiring a hit man who killed a witness and two bystanders.

Allen's heart stopped in September, but doctors revived him and returned him to San Quentin Prison's death row.

Before Allen, the oldest person executed in California since the reinstatement of the death penalty was a 62-year-old man put to death last January. He had spent 21 years on death row.

Last month in Mississippi, John B. Nixon, 77, became the oldest person executed in the United States since capital punishment resumed. He did not pursue an appeal based on his age.

Over the years, some justices on the Supreme Court have expressed interest in deciding whether a long stay on death row can be unconstitutionally cruel.

In 2002, Breyer said in the case of a Florida inmate who spent 27 years in prison: "It is fairly asked whether such punishment is both unusual and cruel."

Justice Clarence Thomas disagreed, writing that the inmate "could long ago have ended his anxieties and uncertainties by submitting to what the people of Florida have deemed him to deserve: execution."

It looks like he should have had one of those jailhouse lawyers draft a advanced directive to physicians. Then they could have let his heart stop and remained stopped in September.

Maybe a 53 year old turns into a 76 year old because 23 years elapses while he waits for his punishment to catch up to him. The cruel and unusual part appears to apply to those innocent ones who languished over the years, waiting for justice. Getting old doesn't cancel out responsibility for one's actions.

Justice Breyer may even think California is punishing the convict cruelly and unusually by continuing to incarcerate him.

Roper v Simmons, like Griswald, is a ticking bomb or better yet, a virus; the law of unintended consequences always obtains...

Some might even argue that getting old is somewhat of a blessing, or personal achievement, even; notwithstanding that one happens to grow old in an institution built for his kind. Homicide victims rarely, if ever, get to "live out their years" seeing as how their forward progress is interrupted by the likes of Clarence Ray Allen.

[This message was edited by A.P. Merillat on 01-24-06 at .]

Justice Clarence Thomas disagreed, writing that the inmate "could long ago have ended his anxieties and uncertainties by submitting to what the people of Florida have deemed him to deserve: execution."