Too Old To Die?: Considering Clarence Ray Allen's Last Plea for Clemency

By SHERRY F. COLB
Wednesday, Jan. 25, 2006

On January 17, at the San Quentin State Prison, the State of California executedClarence Ray Allen. Allen had been convicted of a 1982 triple homicide; he had ordered the killings while already serving a prison term for another homicide. Allen had recently sought clemency from Governor Schwarzenegger on the ground that he had become old and infirm, but the Governor denied his plea.

Allen also sought a stay of execution from the U.S. Supreme Court, which similarly denied his request. He argued that to execute an old and sick man such as himself would constitute cruel and unusual punishment, in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution.

Though Allen's claims failed, they raise interesting questions regarding the application of the death penalty in our legal system, in which appeals can take years and execution often occurs long after commission of the crimes at issue.

What Is Not In Question

In raising the issue of his deteriorating health and physical condition, Clarence Ray Allen was not suggesting that he was innocent or that his trial or sentencing were otherwise unfair at the time that they occurred. For purposes of this particular Eighth Amendment claim, the courts (and the Governor) could assume that the prosecution had proved guilt beyond a reasonable doubt at trial, that a jury of Allen's peers had fully and fairly considered the evidence without allowing prejudice or other improper factors to bear on the outcome, and that the imposition of death had corresponded to the seriousness of Allen's offenses and to other aggravating factors, rather than to arbitrary or invidious motivations. Finally, the courts and Governor Schwarzenegger could take for granted that Allen's attorney was competent and had given Allen assistance that comported with the requirements of the Sixth and Fourteenth Amendment right to counsel.

All of these assumptions are crucial. If the defendant had now been challenging the fairness or constitutionality of the trial or sentencing at the time that these events took place, his arguments would likely have been barred by a variety of doctrines that, collectively, preclude successively raising claims that have already been rejected before or new claims that were available to the convict to raise at an earlier stage. Both of these doctrinal preclusions rest on the importance of finality: the notion that you ought to raise your issues at the earliest available opportunity (or forfeit those issues) and then accept the rulings that you receive upon raising them. The trial and sentencing are, on this approach, the main event, not to be obscured by later, successive revisiting.

Later-Perspective Claims

In this sense, Allen's claims were different from most that a convict might make after his trial and sentencing are over. These claims will typically fall into the above category - the class of challenges to the trial and sentencing themselves that therefore become unavailable after some number of appeals or petitions.

There are, however, claims that a convict or defendant cannot possibly articulate until a particular contingency comes to pass, and that, accordingly, might be raised at almost any time.

One such claim is that of incompetency to be executed, an issue that I addressed more fully in an earlier column. Briefly, if a person loses touch with reality to an extreme degree, substantially compromising his ability to understand what is happening to him and why, then the Eighth Amendment and Fourteenth Amendments, under Ford v. Wainwright, prohibit his execution as long as he remains in that state.

The person might well have been sane at the time of his crime and at the time of sentencing. It would therefore be inappropriate to suggest that he has forfeited the competency argument by not making it sooner (assuming that one accepts the notion that people should, indeed, be competent to be executed). It would be akin to a doctor's refusing to treat a patient who develops a violent reaction to an antibiotic he prescribed, because the patient did not first approach the doctor for treatment at a time that pre-dated her exposure to the antibiotic.

The claim that Clarence Ray Allen was attempting to make is a version of another, similar argument. It says, in effect, that "I am not the same person I was at the time that you -- fairly and constitutionally -- sentenced me to death. It would be cruel and unusual to execute the person who I am now." Others have made this argument when they believed that their characters had undergone the sort of transformation that might call for revisiting the decision to terminate their lives. Like changed circumstances in a custody case, the condemned suggests that it would be a mistake to proceed as planned, on the basis of the earlier sentencing hearing - a hearing that considered the fate of a person he no longer continues to be.

A Contrast: Allen's Claims Versus those of Stanley "Tookie" Williams

Stanley "Tookie" Williams -- founder of the deadly "Crips" gang in Los Angeles -- recently made precisely this argument in his ultimately unsuccessful bid for clemency, also in California. Williams argued that he had turned away from the sort of life he had embraced at the time of his conviction.

Although Williams claimed to be a changed man, he also asserted that he was actually innocent of the offense for which he was convicted (a claim that, in the absence of new evidence and/or some procedural error, does not ordinarily have any legal traction). Psychiatric experts believe that the first step in changing oneself is acknowledging the harms that one has done in the past. This presents something of a quandary for people claiming both innocence and transformation.

But Clarence Ray Allen did not say that he had become a better human being, that he used to be brutal and cruel but had lately become gentle and kind. He said instead that he had become infirm, requiring a wheelchair, and that he was also legally blind and deaf. He argued that executing a person in this condition makes a mockery of justice.

A Parallel: The Supreme Court Forbids Execution of the Mentally Incompetent

The argument is, in some respects, an appealing one. The Court accepted this sort of argument in holding, for example, that the mentally incompetent may not be executed. It reasoned, in Ford v. Wainwright, that "we may seriously question the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life."

The image of the confused and clueless person being strapped to the electric chair or the lethal injection gurney is indeed a disturbing one, and perhaps the image of the elderly and physically sick man could have the same effect on the public perception of American justice.

Does The Parallel Work? The Mind/Body Divide

The analogy between mental incompetence and physical illness is, however, not entirely persuasive. By the Supreme Court's logic, what makes the mentally incompetent person unsuitable for execution is a distinctly mental incapacity -- the inability to understand either that he is about to die or, if he does understand his impending death, that the reason the government is killing him is to exact retribution for his decision to kill another human being.

If the condemned does not understand both of these basic facts about what is happening, then the ritual significance of an execution may be entirely lost on the person whose criminal actions have brought it about. On this view, execution then becomes meaningless violence. The power of this position, then, lies in the impossibility of finding the recognition that one seeks in the convict's eyes as he faces the ultimate penalty for his crimes.

A physically ill person, by contrast, can fully understand that the State is punishing him by executing him and that the reason for that punishment is the murder (or murders) that he committed.

Granted, everyone who spends a long time in prison -- whether awaiting death or simply serving a term of many years -- will eventually become old and less vital than he once was. But this does not ordinarily alter the perception -- in the absence of some characterological change -- that he nonetheless deserves the punishment that he is receiving.

It is usually impossible, in other words, to carry out the entire punishment for a crime while the convict remains in the same physical condition that he was in when he committed the crime or when he was convicted of doing so. And given the length of our appellate process -- a length that ideally reflects a concern with eliminating erroneous outcomes, particularly in capital cases -- that reality is unlikely to change any time soon.

It is unquestionably true that people change, and often change a great deal over time. As we age, moreover, we all tend to become calmer and less prone to violent behavior, even if we are not "better" people in any fundamental sense. If a concern about future violence drove the logic of the death penalty, of course, then these changes would present a crucial reason to stay an execution once the condemned became too old or too sick to do much harm.

But the death penalty is not primarily about incapacitating dangerous people. Indeed, if it were, it would be spectacularly unsuccessful, because people spend years on death row and have the opportunity (and often the occasion) to hurt and even kill people while they are there. Indeed, recall that Allen himself was sentenced to death for murders that took place while he was serving a prison sentence for another crime (also a homicide).

The State executes people primarily for retribution. A person commits a heinous offense that is so outrageous that a jury does not believe that a sentence of life imprisonment is a sufficiently punitive response to the crime. The jury presumably understands, in voting to impose the ultimate penalty, that the convict will not be taken out and shot directly after the trial and that time -- perhaps a lot of time -- will pass before execution of the sentence.

None of this would likely come as a great surprise to the people who decided that death was warranted for Clarence Ray Allen. Indeed, for his jury, the fact that Allen had later become old and sick -- if surprising at all -- may testify primarily to the fact that the defendant was permitted to live when he deserved to have already been killed.

Justice Breyer's Argument: The Lengthy Wait for Death May Be Unconstitutionally Cruel

Citing a Privy Counsel decision interpreting Jamaica's Constitution (along with other foreign sources), Justice Breyer has argued that the death penalty is often cruel and unusual punishment by virtue of the fact that it takes so long before it is carried out. It is the life of the death row inmate, in other words, anticipating execution, rather than execution itself that represents extreme cruelty, a state of affairs sometimes called "death row phenomenon."

This observation may well be true: Some torture victims have said, for example, that the worst moments of their ordeals came in the periods between torture sessions, when they were left to anticipate the torture and wonder at what moment it would begin again.

The difficulty with the death row phenomenon argument, however, is that it could as easily counsel in favor of streamlining the appellate process to prevent convicts from spending that much time on death row. It is not necessarily an argument against the death penalty, as the Justices intended for it to be.

If Allen is Right, the Solution May Not Be to Stay - But Instead to Speed Up -- Executions

The argument that Clarence Ray Allen raised in connection with his petition for a stay of execution has a similar problem. The prospect of people growing old and sick on death row and then getting killed in that condition, is surely a disturbing one. The elderly and ill seem all the more defenseless in the face of execution (though in truth, the death penalty is never meant to be a challenge for the executioner). But the solution may not be to take Allen off death row. It may be instead to permit the State to execute the next Clarence Ray Allen more expeditiously.

In the end, the Supreme Court -- over a dissent from Justice Breyer -- rejected Allen's arguments and denied his application for a stay of execution. Becoming old and sick does not render a person incompetent to be executed, and a person's infirmity does not negate the evil of his criminal actions. Furthermore, age and infirmity do not even indicate that the person has necessarily "changed" in the sense that a parole board would typically value in deciding whether to shorten the sentence of an incarcerated person -- that he has become a person who would condemn and reject the actions that he took at an earlier point.

Just as a parole board would not likely shorten the sentence of an unrepentant killer simply because the killer was now old and ill, it would seem that most courts -- and governors - would see age and illness as immaterial to both the constitutional and the equitable dimensions of the question whether the convicted murderer still deserved to die.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark.

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