DEATH ROW CASE Man, 74, set to be executed in Ala.

Advocates are trying to get the elderly, ill man's sentence commuted.
ATLANTA -- James Barney Hubbard, a 74-year-old convicted killer scheduled to be executed by the state of Alabama on Thursday, is frail, has cancer and hepatitis and is in the early stages of dementia. His attorney has appealed to the governor to commute his sentence to life in prison.
Anti-death penalty advocates also have pleaded for compassion based on Hubbard's age. If the execution goes forward, he will be the oldest man put to death in the United States in more than 60 years, said David Elliot, a spokesman for the National Coalition to Abolish the Death Penalty.
"This case cries out for mercy," Elliot said. "We shouldn't be executing 74-year-old men who have colon cancer. It offends our sense of decency."
In 1977, Hubbard was convicted of murdering Lillian Montgomery, who had taken him into her home after he completed a 19-year prison sentence for a previous murder. He has been on death row ever since, as his appeals worked their way through the system.
Attorney Alan Rose, who visited Hubbard two weeks ago, said he is so sick that it has become painful for him to move and he can barely keep food down. Suffering from hepatitis A, B and C, as well as hypertension and emphysema, Hubbard is able to do little except lie in bed and read, which he does at a second-grade level, Rose said.
Unanswered question
The Supreme Court, which has said that it is unconstitutional to execute the mentally retarded and people under the age of 16, has never ruled on the question of whether very elderly people may be executed, Rose said.
"It's important to know if people as old as Mr. Hubbard is can be executed," Rose said. "We do not allow children to be executed in this country."
At Donaldson Prison, fellow death row inmates organized a letter-writing campaign on Hubbard's behalf. But a packet of letters meant for the governor was confiscated by the Department of Corrections because they did not comply with prison mail protocols, said Esther Brown, an activist who works with death row inmates.
At Hubbard's trial, police testified that he had shot Montgomery three times in the face and shoulder after a night of drinking. When arrested, he was carrying her gold-and-diamond watch and about $250 in cash and checks.
Hubbard has maintained his innocence, saying that Montgomery committed suicide.
"Everyone's really worried about his health," said the victim's son, Johnny Montgomery, 59, who described his mother as a big-hearted woman who "would take in a stray dog, a stray cat." But "she never got to ask anybody for mercy," Montgomery said. "He was the judge, the jury and he was God, for three seconds."
Aging death row inmates
The oldest person to be executed in the United States was most likely Joe Lee, who was 83 when he was put to death in Virginia in 1916, said William Hayes, a Florida historian who studies the death penalty. But given current trends -- an aging prison population and slow appeals process -- there are about 60 people now on death row who may be in their 70s by the time they receive execution dates.
That raises a dilemma for states, which go to great lengths to keep sick or suicidal inmates alive until they can be executed, said Bryan Stevenson, a Montgomery, Ala., attorney who represents death row prisoners. Victims' families, he said, often "feel cheated" if prisoners die before they can be executed. "We're not executing this person because they are a threat," said Stevenson, executive director of the Equal Justice Initiative. Rose said that throughout Hubbard's appeals process "the courts have been very, very troubled" with the investigation and prosecution in the case.
When police questioned Hubbard on the morning of Montgomery's death, he was drunk. His hands shook so much he could not sign a statement, Rose said, and police opened a bottle of whiskey so that he could steady himself. "It doesn't take an expert to know that was improper," Rose said.
Alabama's state attorney general did not return calls seeking comment.
The victim's son also faulted delays in the process, saying that Hubbard has now spent 46 years in Alabama jails at a total cost that he estimated at $4 million to $5 million. "Why drag this thing out? We've got schools over here with kids in trailers, but we've got state-of-the art prisons," he said. "Eventually the prison system will bankrupt every state."

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