January 16, 2006
Elderly death row defendant loses in Ninth Circuit
As detailed in this article, the Ninth Circuit "late Sunday declined to halt the execution of Clarence Ray Allen, ruling that the death penalty would not be a cruel and unusual punishment for a man who turns 76 today and suffers from a host of medical ailments." The Ninth Circuits's ruling came in a long and thorough opinion, Allen v. Ornoski, No.06-99001 (9th Cir. Jan. 15, 2006) (available here).
This Ninth Circuit ruling comes two days after Gov. Arnold Schwarzenegger denied clemency to Allen (details here). Looks like California will have the honor of starting up the machinery of death for 2006, although this list of scheduled executions suggests the rest of January will be busy with executions.
- Too old and sick to die?
- The next high profile California capital case
- Schwarzenegger denies clemency to Allen
UPDATE: TalkLeft comments on Allen's imminent execution here.
January 16, 2006 at 06:37 AM | Permalink
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For those unfamiliar with the case (and don't click on the article link), Allen was in prison for life for murder when he "outsourced" the murder of witnesses to the first murder. His hit man killed a witness and two other people who just happened to be in the store at the time.
The jury thus had two choices in the penalty phase: the death penalty or no penalty at all (i.e., life for a person already sentenced to life).
The reason that an elderly person is now to be executed is that the review was allowed to be dragged out for two decades, an unconscionable delay in a case with no genuine doubt of guilt.
If the execution had been carried out five years after sentence, plenty of time for a thorough review in a case like this, the issue of executing an elderly person would not have arisen.
Posted by: Kent Scheidegger | Jan 16, 2006 10:42:46 AM
"The jury thus had two choices in the penalty phase: the death penalty or no penalty at all (i.e., life for a person already sentenced to life)."
I realize you were just making a rhetorical point and I realize the goal of deterring the defendant himself is not as well served by a life term as it is by executing him (particularly when he directs murders from prison), but in the interests of accuracy, there is a difference between LWOP and an indeterminate life term with the possibility of parole. I assume you did not mean to imply otherwise.
"If the execution had been carried out five years after sentence, plenty of time for a thorough review in a case like this, the issue of executing an elderly person would not have arisen."
"Five years"? I don't see it, not even for cases with the strongest guilt and penalty phase evidence. Allen's direct appeal itself took a bit over four years. Even had AEDPA applied to the first round of federal habeas in this case and even were California an "op-in" state, full review would have taken much more than five years. Of course, additional reforms proposed by some---e.g. a state habeas SOL, conscripting all non-capital criminal appellate attorneys to do capital work, Congress enacting SPA---could speed things up. But each such reform makes wrongful convictions and wrongful executions more and more possible. And policies and procedures which must apply to all cases are not justified simply because they might be adequate in "a case with no genuine doubt of guilt."
Posted by: Jonathan Soglin | Jan 17, 2006 2:38:32 AM