Two death row inmates refuse Biden’s commutation fight for their innocence

Two of the 37 inmates on federal death row whose sentences were commuted to life without parole last month by President Biden are rejecting clemency.

Shannon Agofsky, 53, and Len Davis, 60, who are both in the U.S. Penitentiary in Terre Haute, Indiana, are refusing to sign the paperwork to accept the president’s clemency action due to the legal avenues they are afforded on death row, according to court documents.

The pair filed emergency motions in federal court on Dec. 30 requesting an injunction to block the change to their death sentences, saying that accepting their commutations would remove the heightened scrutiny that death penalty appeals receive.

Heightened scrutiny is a legal process in which the courts examine cases like death penalty appeals closer for errors because these cases are a matter of life or death.

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“To commute his sentence now, while the defendant has active litigation in court, is to strip him of the protection of heightened scrutiny,” Agofsky’s filing reads. “This constitutes an undue burden, and leaves the defendant in a position of fundamental unfairness, which would decimate his pending appellate procedures.”

Davis, a former New Orleans police officer, “has always maintained that having a death sentence would draw attention to the overwhelming misconduct” against the Justice Department, he wrote in his filing.

But, as Davis noted, case law on this issue is “quite murky” and there is no guarantee the two inmates can have their death sentences restored.

Notably, the Supreme Court ruled in 1927 that a president may grant reprieves and pardons without the convict’s consent. Both inmates wrote in their filings that they never requested commutation.

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A jury convicted Agofsky in the 1989 murder of Dan Short, an Oklahoma bank president. His body was found in a lake after prosecutors said Agofsky and his brother, Joseph Agofsky, kidnapped and killed Short before stealing $71,000 from the bank.

Joseph Agofsky was found not guilty of murder, but was sentenced to life in prison for the robbery. He died behind bars in 2013. 

Shannon Agofsky was sentenced to life in prison after he was convicted on murder and robbery charges.  He was later convicted in the 2001 stomping death of fellow inmate, Luther Plant, while he was incarcerated in a Texas prison. A jury recommended a death sentence in that case in 2004.

Agofsky said in his filing last week that he is disputing how he was charged with murder in Plant’s death and that he is also seeking to “establish his innocence in the original case for which he was incarcerated.”

His wife, Laura, who married him in 2019 over the phone, told NBC News that his lawyers had encouraged him to seek a presidential commutation, but he refused because he was afforded legal counsel crucial in his appeals as a death row inmate. She said her husband still has lawyers helping him in his case.

She told the outlet that her husband only having his sentence commuted is “not a win for him” because she believes there is evidence that can prove his innocence.

“He doesn’t want to die in prison being labeled a cold-blooded killer,” she said.

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Davis was found guilty in connection with the 1994 murder of Kim Groves, who had filed a complaint against him as a police officer on allegations he beat a teenager in her neighborhood. Prosecutors charged Davis with violating Groves’ civil rights after accusing him of hiring a drug dealer to kill her.

A federal appeals court tossed out Davis’ original death sentence, but it was reinstated in 2005.

Davis “has always maintained his innocence and argued that federal court had no jurisdiction to try him for civil rights offenses,” his filing reads.

Both Davis and Agofsky are urging a judge to appoint a co-counsel in their requests for an injunction of the commutations.

The Justice Department issued a moratorium on executions during the Biden administration, but President-elect Trump has vowed to expand federal executions when he returns to the White House later this month.

“I am more convinced than ever that we must stop the use of the death penalty at the federal level,” Biden said in a statement last month. “In good conscience, I cannot stand back and let a new administration resume executions that I halted.”

The three federal death row inmates who were not granted clemency were Dzhokhar Tsarnaev, who was convicted in the 2013 Boston marathon bombing; Dylann Roof, who was found guilty in the 2017 mass shooting at a Charleston, South Carolina, church; and Robert Bowers, who was sentenced for the 2018 mass shooting at a Pittsburgh Synagogue.