Condemned killer Clarence Ray Allen was denied clemency Friday by Gov. Arnold Schwarzenegger, who said the 75-year-old murderer's life should not be spared just because he is old and in ill health.
Although Allen still has an appeal pending before the U.S. Supreme Court, Schwarzenegger's decision increases the likelihood that Allen, who will turn 76 on Monday, will be executed Tuesday at San Quentin State Prison. He would be the oldest person executed in the state since California reinstated the death penalty in 1977.
Allen was sentenced to death in 1982 for orchestrating a triple murder while he was in Folsom State Prison serving a life term for an earlier murder. He was attempting to eliminate witnesses who might testify against him if he won a new trial after appealing the first murder conviction.
"My respect for the rule of law and review of the facts in this case lead to my decision to deny clemency," the governor said in a prepared statement. "While serving a life sentence for murder, Allen executed a plan to silence witnesses. Allen's crimes are the most dangerous sort because they attack the justice system itself. The passage of time does not excuse Allen from the jury's punishment."
Schwarzenegger gave short shrift to the contention of Allen's attorneys that it would be "uncivilized" to execute someone so old and in such poor health. Allen had a heart attack in September, is legally blind, suffers from diabetes and uses a wheelchair.
"Allen's death sentence will be carried out at the age of 76, in part, because he committed these crimes when he was 50," the governor said. "His conduct did not result from youth or inexperience, but instead resulted from the hardened and calculated decisions of a mature man.... The depravity of Allen's crimes has not diminished with the years."
Allen's attorneys also asserted that he deserved mercy because his ailments had been "compounded by, or in some instances precipitated by, the shockingly substandard medical care system at San Quentin." The clemency petition asserts that "San Quentin's indifferent treatment" of his medical problems "have accelerated his debilitation."
Last year, in a separate case that is still pending, U.S. District Judge Thelton Henderson in San Francisco found that "even the most simple and basic elements of a minimally adequate medical care system were obviously lacking" at San Quentin.
Schwarzenegger, in spurning Allen's plea, said the inmate did not "complain that he was singled out for poor treatment, but instead asserts that San Quentin provides poor treatment to all inmates. Problems and improvements in the correctional system are best addressed on a systemwide basis, not by clemency cases where the focus is on the unique situation of an individual inmate.
"In fact, the living conditions at San Quentin and the quality of healthcare provided to California inmates continue to be the subject of class-action litigation and remedial plans."
San Francisco attorney Annette P. Carnegie, one of Allen's appellate lawyers, said she was "deeply disappointed" with the governor's decision and took sharp exception to Schwarzenegger's characterization of Allen's medical complaints.
"Mr. Allen does not, as the governor's decision contends, complain about generalized substandard medical care," Carnegie said. "Rather, he has pointed to specific incidents, such as the arbitrary discontinuance of necessary heart medicine right before he suffered a massive heart attack this past September.
"However, the governor has chosen not to give any consideration to the devastating impact that these unacceptable conditions have had on Mr. Allen, or to the reality of wheeling this elderly and infirm man who cannot walk or see into the death chamber to die by lethal injection."
But Deputy Atty. Gen. Ward Campbell, one of the lawyers who prosecuted Allen on the triple murder and who has successfully defended the verdicts on appeal, said Schwarzenegger made the right decision.
"Death is the only appropriate punishment for Clarence Ray Allen -- a life prisoner who murdered three innocent people and conspired to murder seven people as part of an attack on the criminal justice system," Campbell said.
The governor's decision comes on the heels of several setbacks for Allen to get his execution delayed or barred.
In recent weeks, the California Supreme Court and two federal district court judges rejected requests for a stay of execution. Earlier this week, U.S. District Judge Frank Damrell in Fresno rejected the claim of Allen's attorneys that executing such an elderly and infirm individual would violate the constitutional prohibition against cruel and unusual punishment. Allen's attorneys have appealed that decision to the U.S. 9th Circuit Court of Appeals and they have asked the U.S. Supreme Court to review the California Supreme Court's denial of a stay.
Schwarzenegger has now rejected all four clemency appeals he has received from death row inmates. Two of those inmates -- Donald Beardslee and Stanley Tookie Williams -- were executed last year, while Kevin Cooper, whose bid was rejected by Schwarzenegger in 2004, was granted a last-minute stay by the U.S. 9th Circuit Court of Appeals to permit DNA testing. Cooper's case is pending.
In his formal statement Friday, Schwarzenegger recounted the details of Allen's crimes. In 1977, the Fresno man was convicted of arranging the 1974 murder of his son's girlfriend, Mary Sue Kitts, a potential witness against him in the burglary of Fran's Market, a small, Fresno-area grocery store owned by Ray and Frances Schletewitz. While serving a life sentence at Folsom State Prison for contracting Kitts' murder, he offered another inmate, Billy Ray Hamilton, $25,000 to kill some of the witnesses who testified against him at the trial.
When Hamilton was paroled in August 1980, Allen's son, Kenneth, wired him transportation money and met him at a Fresno bus depot, the governor said, referring to evidence introduced at the 1982 trial.
Kenneth Allen provided Hamilton with a sawed-off shotgun and a revolver.
On Sept. 5, 1980, Hamilton and girlfriend Connie Barbo went to Fran's Market. He shot and killed Bryon Schletewitz, the 27-year-old son of the market owners, as well as two store employees -- Douglas Scott White, 18, and Josephine Rocha, 17.
Hamilton was captured soon after and police found that he had a list of the names and addresses of eight witnesses, including Ray and Bryon Schletewitz, who had testified against Clarence Allen at the Kitts murder trial.
Allen was convicted of three counts of murder and one count of conspiring to murder. Hamilton also received a death sentence, which is on appeal.
In his statement Friday, the governor said, "Allen even glorified this type of killing in a 'poem' that boasts 'we rob and steal and for those who squeal are usually found dying or dead.' "
If the execution goes forward as scheduled at 12:01 a.m. Tuesday, Allen would be one of the oldest persons executed in the history of the country, according to the clemency papers filed by his attorneys in December.
Mississippi executed 77year-old John Nixon in December, making him the oldest person executed in the U.S. since 1941.