Allen is first of many sick, aged in line at Death Row

Clarence Ray Allen stands to be the first in a long procession of geriatric patients to be ushered into San Quentin State Prison's death chamber just ahead of the grim reaper.

Allen, who is blind, sick and uses a wheelchair, will turn 76 on Monday, the day before he is scheduled to be executed by lethal injection. He would be the oldest person ever put to death in California.

Those on both sides of the debate over what should happen to Allen agree on one thing -- trundling a feeble old man from his sick bed to the death chamber is not how the system should work. But what is at this point a peculiar predicament could soon become standard procedure.

There are four condemned inmates older than 70 queued up behind Allen, including 75-year-old David Carpenter, the notorious Trailside Killer, who is next in line to become California's oldest Death Row resident. Eleven other inmates on the row have reached age 65.

In all, 199 inmates 50 and older are awaiting a date with the needle in California, according to corrections officials. That's 30.8 percent of the Death Row population of 646 inmates. In 1988, the comparable figure was 5.4 percent.

"It could happen a lot more," Sgt. Eric Messick, a San Quentin spokesman, said of senior citizen executions. "When you have a legal process that's taking as long as it is taking, anyone who is convicted in his 40s is going to be elderly when his execution comes."

Since 1992, the number of condemned inmates who have died of natural causes in California is almost twice the number of those who have been executed. The 12 inmates who have been put to death during that time waited an average of 16 years before their sentences were carried out.

Prison officials say it is not unusual for prisoners to live on the row for 20 years or more. The longest-tenured condemned inmate is Douglas Stankewitz, who arrived in October 1978 after being convicted of a kidnap and murder in Fresno County. He is 47.

Allen, who once headed a Central Valley crime gang, was convicted of planning from his prison cell the murders of witnesses to a previous killing he had ordered. His accomplice, Billy Ray Hamilton, a parolee at the time, killed one of the witnesses and two other people during a store robbery in Fresno but was soon captured with the hit list that Allen had provided. Hamilton was also sentenced to death.

Allen, who has been on Death Row for 23 years, now uses a wheelchair. An advanced case of diabetes has left him legally blind. He suffered a heart attack Sept. 2.

Not only will guards have to lift him out of his wheelchair and carry him into the execution chamber, but, his lawyers argue, the stress of the ordeal could cause him to suffer another heart attack. If that happened, the state would be faced with the prospect of saving a man's life for the sole purpose of putting him to death.

It is a scenario that has served to fuel the arguments of death penalty opponents.

Franklin Zimring, who directs the criminal justice research program at UC Berkeley's Boalt Hall School of Law, argued that there is no societal necessity to execute an old man such as Allen. To do so, he says, makes the justice system look bloodthirsty.

"Medical science has to work very hard to keep this guy alive long enough to execute him," Zimring said. "Is that why we have created the machinery of execution in California? (Allen) is feeble and nondangerous and a quarter-century removed from why we were so mad at him. The whole idea of plucking execution targets from intensive-care wards sounds a little peculiar."

But the issue is also fodder for the other side.

If not for myriad appeals and constant legal delays made possible by anti-death penalty activists, victims rights advocates argue, Allen would have been dead long ago. To those who say it is inhumane to execute a blind, enfeebled old man, they say speed up the legal process and spare the murder victims' families the long wait.

"He's going to be executed for the crimes he was duly tried and convicted of committing," said Jane Alexander, co-founder of the nonprofit Citizens Against Homicide, a national victims rights group based in San Anselmo. "The big crime is that he wasn't executed many years ago. Nobody ever thinks about what the victims go through waiting. Until the sentence is carried out, the victims -- the families of the people whose lives he took -- live this nightmare continuously because they never know what is going to happen or when the laws will change."

The prospect of yanking old folks out of wheelchairs, hospital beds or life support to give them the "stainless steel ride," as lethal injection is called in prison, is an issue not only in California, but nationwide.

Since 2002, four inmates older than 65 have been put to death in the United States, including 77-year-old Mississippi hit man John Nixon Sr. on Dec. 14.

In 2004, 74-year-old James Hubbard was put to death in Alabama. Hubbard, who at the time was the oldest man executed in the United States in six decades, suffered from colon and prostate cancer and was so addled by dementia that he sometimes forgot who he was, according to newspaper accounts.

Nine inmates older than 60 were executed in the United States from 1990 to 2000, and another 18 were executed over the past five years, according to the Death Penalty Information Center.

As of 2003, a record 110 prisoners at least 60 years old were on death rows around the United States, compared with 39 in 1996, according to information center statistics.

The graying of death row is an increasingly volatile issue in the public and among legal scholars, particularly in relation to the length of time it takes to carry out death sentences.

Most agree that it is necessary to have a thorough appeals process and sentencing reviews to make sure innocent people are not executed. The problem, at least in California, is that there is a shortage of qualified lawyers willing to take death penalty cases, which are expensive, time-consuming and emotionally draining.

It typically takes five years for a condemned inmate in California to be appointed a lawyer. Alexander, who got involved in the victims rights movement after her aunt was murdered, said one problem is that the Legislature hasn't set the compensation rate high enough.

"They only pay $125 an hour for a death penalty case," said Alexander, less than half what an attorney in private practice would earn. "How are you going to get a worthwhile attorney to take a case for that kind of pay?"

Even if the pay were higher, there wouldn't be much incentive to speed up the process.

"If an inmate (hires) his attorney right away, like Scott Peterson did, he could be shortening his stay on Death Row," said Messick, the San Quentin spokesman, implying that such a move isn't likely to prolong the life of the former fertilizer salesman convicted of killing his wife and unborn child. "He started the process quicker. Otherwise, if an inmate is to just sit back and wait, there is a backlog."

The Supreme Court has periodically grappled with the issue of delays since it lifted the moratorium on the death penalty in 1976.

"It is incongruous to arm capital defendants with an arsenal of 'constitutional' claims with which they may delay their executions, and simultaneously to complain when executions are invariably delayed," wrote Justice Clarence Thomas, concurring with the decision not to review the 1999 case of condemned inmates in Nebraska and Florida who argued that it was unconstitutional to execute them after delays of more than two decades.

In his dissenting opinion, Justice Stephen Breyer wrote that the "astonishingly long delays" were not the result of frivolous appeals but of "constitutionally defective death penalty procedures."

Allen, who would be the third inmate in California history to be executed after reaching age 70, is basing his last-minute legal appeals on an unusual argument -- that he is too old and sick to die, and that putting him to death would be cruel and unusual punishment.