If you were drowning and someone tossed you a lifeline, you would grab it, wouldn’t you?Â
While circumstances can influence outcomes, there are instances where individuals may choose to go against the expected norm. This is exemplified by the recent development involving two federal death row inmates whose death sentences were commuted to life imprisonment by President Biden, yet they have opted to reject this reprieve.
Shannon Agofsky, aged 53, and Len Davis, aged 60, currently housed at the U.S. Penitentiary in Terre Haute, Indiana, have decided not to sign the necessary documentation to acknowledge the President’s clemency offer. Court records indicate that their decision stems from the legal rights they maintain while on death row.
On December 30, the duo lodged urgent pleas in federal court seeking an injunction to prevent the modification of their death penalties. Their argument revolves around the premise that agreeing to the commutation would diminish the meticulous review process typically associated with death penalty appeals.
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.
In other words, both inmates are still fighting their convictions in the appellate courts, and the removing of the increased scrutiny with which those courts would examine their appeals.
“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.
Shannon Agofsky was convicted of the 1989 murder of an Oklahoma bank president, Dan Short. Agofsky and his brother, Joseph Agofsky, kidnapped and murdered Short, then stole $71,000 from the bank Short ran. Shannon Agofsky’s brother was convicted of robbery and died in prison in 2013. Shannon remains on Death Row.
Len Davis was convicted of the murder of Kim Groves in 1994. Davis was a police officer, and Groves filed a complaint against him for the beating of a teenager.
Both men have applied to a judge to appoint a co-counsel to fight the commutations.
Three inmates were not included in the Biden commutation, as my colleague streiff noted in December:
The three men left on death row are Robert Bowers ( in 2018), Dylann Roof (Charleston, South Carolina, church shooting in 2015), and Dzhokhar Tsarnaev (2013 Boston Marathon bombing).
Four inmates in the military prison system awaiting the death penalty were likewise not included in the clemency.
Joe Biden claims to be personally opposed to the death penalty, but if his objection and these commutations were truly a matter of principle, they would have been done at the outset, not at the end of his presidency, and he would not have exempted anyone.
Donald Trump has vowed to restore the federal death penalty. The Constitution, in fact, specifically allows for the death penalty; the Fifth Amendment states (bolded part added):
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The bolded portion implies that, with due process of law, a person may be “deprived of life, liberty or property.”
