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The Price of the Death Penalty

At last count, there were more than 100 prisoners aged 60 and older on America's death rows.
 
 
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Clarence Ray Allen is old, sick, and disabled. He suffers from just about every physical ailment imaginable. But Allen is a condemned killer, and he could be executed at California's San Quentin prison on January 17.

Septuagenarians are not aberrations on America's death rows. A reporter who interviewed death row prisoner Stanley Tookie Williams shortly before his execution saw more than half a dozen prisoners who looked to be in their 50s and 60s on death row.

And those were just the ones in eyeshot of the reporter. There are, undoubtedly, additional gray beards among the more than 600 prisoners on San Quentin's death row. Many of them have been there since the late 1970s and 1980s. Williams was there for a quarter century, and Allen has been there just as long.

At last count, there were more than 100 prisoners aged 60 and older on the nation's death rows. They will spend, on average, one decade there before they are executed, die of natural causes, are exonerated, or have their sentences commuted. The condemned languish on San Quentin's death row for 20 years or more.

The interminably long stay of Allen and Williams -- and the others on death row - point up yet another Catch 22 problem with the death penalty. People condemned to die are getting older and sicker -- and near death, they tax medical facilities and make a mockery of the execution process.

A 74-year-old Alabama inmate had even more ailments than Allen. He needed help to get to the shower and comb his hair, and was so far gone mentally that he had trouble remembering his name. He limped to his execution in August 2004.

The old guys stay so long on death row because prosecutors, public officials, the courts, prison wardens and the public -- despite their shout for more and speedier executions -- arm prisoners with a storehouse of mandatory state and federal legal appeals that drag out the process.

The idea is not to slip and kill the wrong man. It's a good, public conscience-salving goal, but there's still evidence that some men who have been executed may have been innocent. The painfully slow appeals process, though, is no consolation for the old men that rot on death row -- they're also caught in the legal Catch 22. They don't want to die, and they grab at their every appeal in the desperate hope that a miracle will happen and they'll get their conviction overturned.

That may or may not happen, but while they wait, they also age faster, suffering more mental and physical ailments than other prisoners. A 1999 study by the Florida Corrections Commission found that inmates over age 65 spend twice as much time in hospitals, and that their physiological age is 10 years older greater than their actual age. Their physical isolation from other prisoners, poor diet, and the mental torment of not knowing when they will die takes an extra toll.

In 1989, the European Court of Human Rights refused to extradite a German national that fled to Britain from a murder charge in Virginia. The Court claimed that the lengthy time between sentencing and execution was psychological torture. The accused was extradited only after state prosecutors promised not to seek the death penalty.

The U.S. Supreme Court hasn't helped lessen the agonizing torment of time delays. Twice, the court has flatly rejected appeals from inmates in several states that have spent more than 20 years on death rows. The prisoners claimed that their prolonged stay on death row violated the 8th amendment prohibition against cruel and unusual punishment.

Justice Stephen Breyer, in a mild dissent in one of these cases, acknowledged that the long wait for death prolonged the suffering of inmates. But Justice Clarence Thomas was having none of that; he lambasted Breyer for his dissent, and railed that prisoners have stacks of appeals to protect their rights, but then they complain that it takes too long to execute.

If House Republicans have their way, that will change. They're pushing hard for passage of the Streamlined Procedures Act of 2005, which would severely limit the number of federal appeals that delay executions for the condemned.

It's a terrible answer to the death penalty morass. Whittling away a prisoner's legal and constitutional protections won't guarantee absolute certainty that the state won't kill the wrong man.

Without those time-consuming appeals, the last few years' 100-plus innocent persons who were scheduled for execution, but were later exonerated, would have been long-dead.

A "dead man" walking into the death chamber is bad enough; a "dead man" being wheeled into the death chamber is an outrage.

Earl Ofari Hutchinson is an author and political analyst. He is the author of 'The Crisis in Black and Black' (Middle Passage Press).