Ailing Inmate Is Set to Die

Barring a last-minute, court-ordered stay of execution, 76-year-old murderer Clarence Ray Allen will be executed by lethal injection early Tuesday at San Quentin State Prison.

Allen would become the 13th person to undergo capital punishment in California since the state reinstated the death penalty in 1977, and would be by far the oldest.

State officials were preparing to put Allen to death a week after the Assembly Public Safety Committee approved a bill that would suspend capital punishment for up to three years. During that time, a commission would study whether California’s criminal justice system has allowed innocent people to be convicted of crimes, both capital and noncapital. It is far from certain that the bill will clear the Legislature, and even if it does, Gov. Arnold Schwarzenegger may veto the measure.

Allen was sentenced to death in 1982 for orchestrating a triple murder in Fresno in 1980. He had arranged the killings while incarcerated at Folsom State Prison, serving a life sentence for another murder.

He had been convicted of arranging the 1974 slaying of his son’s girlfriend, Mary Sue Kitts, who had told the owners of a Fresno market that Allen’s gang had burglarized their store. According to testimony in the 1982 trial, Allen sought to eliminate witnesses who might testify against him if he got a retrial in the Kitts killing.

In prison, he offered $25,000 to fellow inmate Billy Ray Hamilton to kill people who had testified against him in the Kitts murder trial. After he was paroled, Hamilton killed one of the witnesses and two bystanders. When Hamilton -- who also is on death row -- was captured, police found that he had a list of eight witnesses who had testified against Allen in the Kitts trial.

Allen’s case has attracted considerably less attention than that of Stanley Tookie Williams, 51, who was executed Dec. 13 despite a vigorous clemency campaign waged by political and religious leaders.

Nonetheless, Allen’s appellate attorneys continued to work on his behalf over the weekend, and death penalty foes have planned a march from San Francisco to San Quentin today to protest the execution.

In recent weeks, two federal judges and the California Supreme Court have rejected motions by Allen’s lawyers to bar his execution. The inmate’s lawyers said it would violate the constitutional ban on cruel and unusual punishment to take the life of a man who is so old and ailing. Allen, whose birthday is today, had a heart attack in September, is legally blind, has diabetes and uses a wheelchair.

From a legal point of view, U.S. District Judge Frank C. Damrell Jr. said in a ruling released Thursday, that argument has no relevance. The U.S. Supreme Court has barred the execution of individuals for crimes committed as juveniles, as well as individuals who are mentally incompetent to understand the gravity and meaning of their execution. But the high court has never ruled that it is improper to execute someone because of old age or poor health.

“Nothing about his advanced age or his physical infirmities ... affected his culpability at the time he committed the capital offenses,” Damrell wrote.

He drew a sharp contrast between Allen and juvenile offenders, noting that in a landmark decision in 2005 the high court said juveniles are immature with impulsive tendencies, have a greater vulnerability to negative influences and have more transitory personality traits. “Clearly, none of these differences apply to a mature adult like [Allen] who committed multiple murders with cold-blooded calculation at age 50,” Damrell wrote.

The judge also said the argument of Allen’s attorneys that “his execution would serve none of the penological purposes of capital punishment is without merit. [Allen’s] current condition is irrelevant to the fulfillment of those purposes.”

Damrell quoted a 2005 decision of the U.S. 9th Circuit Court of Appeals in which Judge Kim McLane Wardlaw wrote: “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.”

On Sunday, the U.S. 9th Circuit Court of Appeals dismissed one of Allen’s final legal appeals. The San Francisco-based court ruled against Allen “because he has not demonstrated substantial grounds upon which relief may be granted.” His attorneys have an appeal pending at the U.S. Supreme Court, but it is considered a longshot.

On Friday, Schwarzenegger denied Allen’s clemency bid. “Allen’s crimes are the most dangerous sort because they attack the justice system itself,” Schwarzenegger said in rejecting the bid. “The depravity of Allen’s crimes has not diminished with the years.”

As Allen’s final appeal was being reviewed by judges in Washington, his relatives and the relatives of his victims were in a pensive mood about the impending execution.

Patricia Pendergrass, the 55-year-old sister of Bryon Schletewitz, one of the three people gunned down at his parents’ Fresno store by Allen’s hired killer, said she planned to attend the execution.

Pendergrass, of Galt, Calif., said she was the last living member of her family, since her father, Ray, was run over last March by a driver later convicted of vehicular manslaughter. She said her father had wanted to live to see Allen’s execution.

Pendergrass said what made Allen’s murders even more egregious is that he had known Bryon and her since they were 9 and 11 years old, respectively.

“Let’s not forget why he’s there in the first place,” Pendergrass said in a telephone interview last week. “He committed these crimes, and he knew there would be consequences. He thought about this; there was no snap judgment. He planned this. He put in a lot of time and effort.

“I’m really hoping I find some relief from this, after all these years, [with] this hanging over our heads. All the trials, all the court dates and appeals and all those times when it seemed we were getting close to a date set.

“I try to remember all the good things, and there were so many good things with my family. Then how Bryon was forced to die slips into my mind, and all the ugliness comes back.”

Schletewitz, then 27, and store employees Josephine Rocha, 17, and Douglas Scott White, 18, were killed at close range with a shotgun, according to trial testimony.

Cecilia Broughton, Rocha’s sister, said that while some of her six siblings would attend the execution, she would stay overnight with their mother to offer support. She was unsympathetic to the argument that Allen should not be put to death because of his age and poor health. She contrasted the years that he was allowed to live with the fate of her sister, then a high school senior, who died begging for her life, according to trial testimony.

Broughton said that despite her efforts to focus on happy memories of her sister, they are overwhelmed by the way in which she died. “She had had the whole world ahead of her, and of course I imagine her begging and crying for her life,” she said.

Broughton said Allen’s death would finally end fears that have at times gripped his victims’ survivors. “Whether or not it seems reasonable,” she said, “there’s a lingering fear that he can still hurt people outside of prison.”

Paula Allen, the condemned inmate’s granddaughter, issued a statement through Allen’s appellate attorneys.

“My heart goes out to the families of all of the victims in this tragic situation that, over the years, has brought about nothing but sheer pain, confusion and needless loss to all involved,” she said.

“I will never know the pain the victims’ families suffered at the time of their loved one’s deaths, however great it must have been, and surely still is. I only know for certain the excruciating pain my own family has had to endure for nearly the past three decades as the result of ... hatred toward my grandfather. I also know that we, too, will soon suffer the loss of a man dearly loved by his entire family.”

“I pray,” Paula Allen said, “that his execution ... will finally begin a process of healing for all of the surviving families on both sides of this sad circumstance.”