California's oldest condemned inmate lost another legal battle to stay alive when a federal judge Thursday dismissed his claim that executing him next week would be unconstitutionally cruel and unusual because of his age and health problems.
Attorneys for Clarence Ray Allen then asked the U.S. Supreme Court to block the execution under the same legal argument. Allen is scheduled to be executed Tuesday at San Quentin State Prison.
Allen, 75, is legally blind, nearly deaf, suffered a heart attack in September and uses a wheelchair.
State prosecutors urged U.S. District Judge Frank Damrell Jr. in Sacramento to reject Allen's petition, and said they would take the same position before the U.S. Supreme Court. The justices have never spared an inmate who made such a claim, the judge wrote.
Despite Allen's advanced age and infirmities, his execution would not violate the cruel and unusual punishment clause of the 8th Amendment, Damrell said.
California's Supreme Court rejected Allen's claim Tuesday.
While serving time for murder at Folsom State Prison in 1982, Allen was sentenced to death for hiring a hit man who killed three people at a Fresno market. Allen ordered the killings to eliminate witnesses who would hurt his chances of prevailing at overturning his murder conviction on appeal, prosecutors said.
Allen is also asking Gov. Arnold Schwarzenegger to commute his death sentence to life without parole for the same reasons.