Two federal death row inmates are asking to be exempted from outgoing President Joe Biden’s order commuting their sentences to life in prison without parole, as they seek to appeal their cases and prove their claims of innocence.
The inmates, Shannon Agofsky and Len Davis, filed petitions in federal court on December 30, a week after Biden announced he would remove 37 out of 40 federal inmates from death row. The order did not include three inmates whose crimes included high-profile mass shootings or acts of terrorism.
While other inmates and their attorneys viewed the commutations as a godsend, Agofsky and Davis refused to sign documents acknowledging them, according to their separate handwritten petitions. The US Justice Department argued in court filings this week the inmates’ requests should be denied, saying the president’s power to grant a commutation is absolute, limited only by the Constitution.
Both inmates asked for the US Court in the Southern District of Indiana – which encompasses Terre Haute, where most federal death row inmates are held – to issue emergency orders blocking the commutations from proceeding, underscoring the complicated nature of both the commutations and the death penalty more broadly.
“The defendant never requested commutation. The defendant never filed for commutation. The defendant does not want commutation,” wrote Agofsky, who was sentenced to death in 2004 for killing a federal inmate while serving a life sentence for another murder years earlier.
Agofsky claims he is innocent of the 1989 killing and that errors marred his 2004 case. But a commutation to a life sentence would complicate his efforts to prove these claims, he wrote, by depriving him of the “heightened scrutiny” associated with death penalty cases.
“He’s not having a death wish or anything. It’s his will to live a life in freedom,” Laura Agofsky, the inmate’s wife, told CNN. “That’s why he refuses the commutation, because it limits his possibilities, his options to prove his innocence.”
Meanwhile, Davis – a former New Orleans police officer sentenced in 2005 for orchestrating the killing of a woman, Kim Groves, who had filed a complaint accusing him of police brutality – argued the commutation carried a “host of constitutional violations” that would be explained in future filings. Davis said he has maintained his innocence and claimed the federal government did not have jurisdiction to try him for civil rights offenses in the case.
“Prisoner Davis has refused to sign (the) document presented to him today, acknowledging his acceptance of commutation,” the inmate wrote. “It is unknown for sure if this will make this request moot.”
Whether the inmate’s requests are ultimately successful is an open question. But the president’s commutation power “is grounded in his constitutional authority and is absolute,” said Robin Maher, the executive director of the Death Penalty Information Center.
“The objections of Mr. Davis and Mr. Agofsky to President Biden’s decision will have no effect on the commutation of their sentences. The law is settled and very clear on this point,” Maher said, pointing to a 1927 ruling by the US Supreme Court in Biddle v. Perovich, which found a president’s commutation did not require consent from the person receiving it.
Indeed, the Justice Department cited the case in its responses to both inmates’ petitions.
The Office of the Pardon Attorney at the Justice Department declined to comment.
Biden ordered commutations ‘in good conscience’
Biden’s commutation announcement came less than a month before the inauguration of Donald Trump, who had indicated during the presidential campaign he would resume federal executions. Anti-death penalty activists have taken the prospect seriously, pointing to the 13 people executed in the last seven months of Trump’s first term after then-Attorney General Bill Barr revived the practice following a 17-year hiatus.
In announcing the commutations, Biden said he condemned the inmates’ actions and grieved for their victims. While some celebrated the commutations, others were outraged – among them the loved ones of the inmates’ victims.
But Biden said he was “more convinced than ever that we must stop the use of the death penalty at the federal level.” His attorney general, Merrick Garland, halted federal executions while officials reviewed policies and protocols.
“In good conscience,” Biden said, “I cannot stand back and let a new administration resume executions that I halted.”
Commutation would hinder inmate’s innocence claim, wife says
Agofsky’s decision to attempt to forego the commutation was made after discussing it with his wife, Laura Agofsky told CNN in a phone call from Germany, where she lives. The couple had been discussing the possibility since Biden’s election, she said.
Agofsky was sentenced to death for the 2001 killing of Luther Plant, another inmate at the US Penitentiary in Beaumont, Texas. At the time, Agofsky was serving a life sentence for the murder 12 years earlier of Dan Short, an Arkansas bank president.
But the inmate claims he is innocent of Short’s killing. And while he acknowledges his role in Plant’s killing, he has claimed he acted in self-defense – and that prosecutorial misconduct, ineffective defense attorneys and new evidence warrant his sentence be vacated.
Agofsky believes he is “on the cusp” of proving his claims, he wrote in his petition, but a commutation “would decimate his pending appellate procedures.” Laura Agofsky explained her husband had benefited from his death sentence because he was then appointed attorneys he did not have access to while serving a life sentence.
Because of the life-and-death nature of a capital case, “death-sentenced prisoners in the federal system are appointed lawyers to represent them in all proceedings, from trial through clemency and execution,” Maher, of the Death Penalty Information Center, said.
Laura Agofsky, who considers herself a death penalty abolitionist, acknowledged a certain irony in opposing capital punishment but supporting her husband’s quest to maintain his death sentence.
It’s a “very drastic measure,” she said. “But neither one of us thinks that it’s a life worth living with him in prison.”
CNN’s Hannah Rabinowitz contributed to this report.
