Oldest Death Row Inmate Is Denied a Delay

A federal judge in San Francisco has declined to delay the Jan. 17 execution of the oldest man on California’s death row, who says he is so ill that he has been unable to assist his attorneys in preparing a clemency petition.

Clarence Ray Allen, 75, was sentenced to death in 1982 for commissioning the murder of three people in Fresno. If the sentence is carried out as scheduled, Allen would become the oldest person executed in California since the death penalty was reinstated in 1978.

Allen is legally blind, has heart ailments and diabetes, and uses a wheelchair. His attorneys assert that top officials in the California Department of Corrections and Rehabilitation and at San Quentin State Prison have provided inadequate medical care to Allen. They also say that the state violated Allen’s rights to counsel, to due process and to be free from cruel and unusual punishment.

The California attorney general’s office vigorously opposed delaying the execution, saying that Allen has had sufficient opportunity to meet with his attorneys regarding a clemency petition.

In an order released Friday, U.S. District Judge Jeffrey S. White agreed.

White said Allen had not met the legal standard to obtain a temporary restraining order in two important respects.

The judge said Allen had failed to exhaust his administrative remedies. In addition, White said that under a 1998 U.S. Supreme Court decision, “only minimal due process protections apply to clemency proceedings” and that Allen had failed to demonstrate that the state had violated that standard.

White said that although Allen’s attorneys cited several incidents of “alleged disregard for his medical needs,” they had presented no specific allegations regarding the effect those actions had had on Allen’s ability to help them with a clemency petition.

As for Allen’s assertions that his repeated movements from one facility to another prevented him from being examined by medical experts and meeting with his lawyers, White noted that the inmate has met with his legal team nine times since his heart attack in September. Allen also has been examined eight times since returning to his cell on Oct. 6 after surgery, White wrote.

Allen also said state officials denied him laser eye surgery, which would have improved his vision and permitted him to be tested for organic brain damage. His attorneys say finding signs of such brain damage would provide mitigating evidence relevant to Allen’s clemency petition.

But White said there is nothing in the law that requires the state to help Allen prepare his clemency petition.

Moreover, White said that on Tuesday Allen’s attorneys had “filed a lengthy and thorough clemency petition,” which the judge said belies Allen’s assertion that state officials interfered with his clemency rights.

The judge said Allen’s attorneys have made Gov. Arnold Schwarzenegger aware of his medical condition in their clemency petition.

Schwarzenegger could grant the petition, deny it or issue a reprieve. No California governor has granted clemency in a capital case since 1967. Schwarzenegger has denied clemency to all three death row inmates who have requested it, including Stanley Tookie Williams, who was executed Tuesday.

The California attorney general’s office, which considers Allen’s crimes particularly egregious, will oppose clemency and is expected to file a formal response with the governor.

In 1977, Allen was convicted of arranging the 1974 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 another inmate, Billy Ray Hamilton, $25,000 to kill eight people who had testified against him in the Kitts case.

After being released from prison, Hamilton in 1980 killed one of the witnesses, Bryon 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. Hamilton also received a death sentence, and two other individuals involved in the triple homicide received sentences of life without parole.