Clarence Ray Allen moved a step closer to death late Sunday when a federal appeals court dismissed one of his final appeals.
Allen, who turns 76 on Monday, likely will become California's oldest condemned inmate executed on Tuesday morning following the 9th U.S. Circuit Court of Appeals decision dismissing one of his final legal options.
Attorneys for Allen, on death row for ordering the hits of three people at a Fresno market in 1980, claimed executing him would be unconstitutionally cruel and unusual because of his age and health problems.
The San Francisco-based appeals court ruled against Allen "because he has not demonstrated substantial grounds upon which relief may be granted."
Allen also is asking the U.S. Supreme Court to block the execution under the same legal theory. Allen is scheduled to be injected at 12:01 a.m. Tuesday at San Quentin State Prison.
Gov. Arnold Schwarzenegger denied Allen's clemency bid on Friday.
“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.
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.
“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.
In Mississippi last month, John B. Nixon Sr., 77, became the oldest inmate executed since capital punishment was reinstated in this country. He did not base his appeals on his age.
“We carefully considered it,” said his lawyer, Brian Toohey. “There was no case law backing us up.” However, Nixon did ask Gov. Haley Barbour for clemency because of his age.
The brother of one of Allen’s victims said the arguments in favor of sparing the killer’s life are nonsensical. Robert Rocha — whose sister, Josephine, was murdered at a Fresno market in 1980 by a hitman Allen hired — said Allen’s repeated appeals are the only reason he is old and frail.
“Mr. Allen feels he is too old to die,” Rocha said. “We feel Josephine was too young to die. She was only 17 when she was taken from us and murdered.”