Attorneys for California’s oldest condemned inmate are asking the U.S. Supreme Court to accept two unprecedented legal theories in a last-ditch bid to block his execution scheduled for 12:01 a.m. Tuesday.

Attorneys for California’s oldest condemned inmate are asking the U.S. Supreme Court to accept two unprecedented legal theories in a last-ditch bid to block his execution scheduled for 12:01 a.m. Tuesday.

Clarence Ray Allen, who turned 76 on Monday, claims that because of his age and numerous health problems, a lethal injection would amount to unconstitutionally cruel and unusual punishment.

Allen uses a wheelchair, and is legally blind and nearly deaf. His heart stopped in September, but doctors revived him to be returned to San Quentin State Prison’s death row.

He is also asking the novel question of whether longevity on death row — in Allen’s case 23 years — also amounts to cruel and unusual punishment.

The justices have never adopted an execution exception for an upper age limit or a physical illness, but some have expressed interest in deciding whether longevity on death row is indeed unconstitutionally cruel.

The justices are being asked to review a late Sunday decision by the 9th U.S. Circuit Court of Appeals, which concluded that Allen waited too long to address the longevity question.

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