When President Joe Biden announced last month that he would commute the sentences of 37 out of 40 people on federal death row to life in prison without the possibility of parole, along with the lengthy sentences of 1,500 other people held in federal prisons, no one, especially the president, could have imagined that anyone would turn down his merciful gestures. But now two men on the federal death row in Terre Haute, Indiana, have thrown a monkey wrench into Biden’s decision.
As the Washington Post reports, “Shannon Agofsky and Len Davis were among the 37 federal inmates whose sentences were reclassified on Dec. 23 by Biden from execution to life in prison without parole. Both men have refused to sign the paperwork accepting their commutations and filed emergency motions on Dec. 30 to block them.”
Those actions seem unusual, but they are by no means unprecedented. Such rejections have happened from time to time throughout American history. But every time, turning down clemency has raised eyebrows and caused headaches for the legal system. Those actions set up a clash between the almost unlimited power of the president to commute sentences and the wishes of individuals with something different in mind.
In fact, if they can get away with it, Agofsky and Davis’ decision to say no to Biden’s clemency would be about the only effective check on that power. Neither seeks to die or is volunteering for execution, a practice I oppose. Instead, they are making calculations about what gives them the best chance to get off death row.
Agofsky contends, as the Post notes, that “accepting the commutation would complicate his ongoing appeal, while Davis objected to the ‘constitutional conundrum’ of the executive branch changing his sentence without his approval.” Such arguments will no doubt whet the appetites of law professors everywhere and may set up a clash that the Supreme Court will ultimately resolve.
Agofsky has been on death row for more than twenty years. When he was already serving time for robbery and murder, he was convicted of stomping to death a fellow inmate.
As NBC News notes, in his first case, he was not convicted of the murder but “received a life sentence for the robbery.” He is now seeking an injunction to stop his transfer off death row. NBC reports he is “disputing how he was charged with murder in the stomping death” and trying to “establish his innocence in the original case for which he was incarcerated.”
Agofsky wants to take advantage of the heightened scrutiny that courts are supposed to accord to death cases, something not generally required in any other kind of case. In his handwritten petition to the federal district court in Indiana, Agofsky wrote that reducing his sentence to life would remove the protection granted to him under the concept of “heightened scrutiny.”
Though the heightened scrutiny doctrine does not necessarily lead to convictions being overturned, Agofsky Biden’s commutation “constitutes an undue burden, and leaves the defendant in a position of fundamental unfairness, which would decimate his pending appellate procedures.”
In no uncertain terms, he told the court that he “never requested commutation. The defendant never filed for commutation. The defendant does not want commutation and refused to sign the papers offered with the commutation.”
Davis, who also doesn’t want his death sentence commuted to life in prison without parole, is “a former New Orleans police officer, (who) was convicted in the 1994 murder of Kim Groves… Prosecutors said Davis hired a drug dealer to kill Groves and charged the officer with violating Groves’ civil rights.”
Davis, as NBC reports, “has always maintained his innocence.” He also contends that the federal court “had no jurisdiction to try him for civil rights offenses.”
In his petition to stop Biden’s commutation of his sentence, Davis claimed that having a death penalty attached to his case “would draw attention to the overwhelming misconduct” he contends characterized the Justice Department’s handling of his case.
He highlighted “a host of constitutional violations associated with the executive branch’s attempt to sentence (him to) life…without his agreeing to commutation.” He did not specify what those violations were.
How odd that two men facing a death sentence would believe that the best way to correct what they see as miscarriages of justice is to hold onto that sentence as if it were a life preserver. As Ohio State University Law Professor Douglas Berman explains, they may be right.
“If nothing else, these efforts to refuse a capital commutation seem likely to help ensure these defendants get more attention for their claims of innocence than many others. And I have often asserted to students in my sentencing classes that convicted murderers claiming to be wrongfully convicted on death row are likely to get more attention for their claims of innocence than convicted murderers given LWOP (life without parole).”
Throughout our history, others have refused or tried to refuse clemency. Some did so because they thought accepting it would amount to an admission that they had done something wrong.
Others have done so because they didn’t like a condition or stipulation that came with clemency. Still others, like Agofsky and Davis, thought accepting clemency would jeopardize one of their legal rights.
Several of those cases were the subject of litigation and eventually found their way to the Supreme Court. Over time, the Court’s position has changed from siding with the people who said they would not accept a pardon or commutation to favoring the authority of the executive to grant clemency without the recipient’s consent.
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In the first of those decisions, the 1833 case of United States v. Wilson, a man sentenced to death refused a pardon from President Andrew Jackson because he didn’t like the conditions attached to it. Chief Justice John Marshall held, “A pardon…not complete without acceptance. It may then be rejected by the person to whom it is tendered, and if it be rejected, we have discovered no power in a court to force it on him.”
In a cruel twist of fate, Wilson’s victory was short-lived. He was hanged.
In 1915, the Supreme Court again called a pardon a “private” act that had to be accepted to be valid. The court affirmed “the necessity of the acceptance of a pardon to its legal efficacy… whatever the alternative of acceptance, whether it be death or lesser penalty.”
But twelve years later, the Court changed its mind.
At that time, the Court rejected the conception of pardon as a private act, instead describing it as “the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed. Just as the original punishment,” the Court continued, “would be imposed without regard to the prisoner’s consent… the public welfare, not his consent, determines what shall be done.”
It held that in the case of a “commutation of death to imprisonment for life, it is hard to see how consent” has anything to do with it. If someone does not “accept the change, he could not have got himself hanged against the executive order….The considerations that led to the modification had nothing to do with his will. The only question is whether the substituted punishment was authorized by law.”
And that is where we are today.
Agofsky and Davis find themselves in something of a catch-22. They do not want to be treated mercifully lest it compromise their legal position, but likely, they are stuck with Biden’s commutation.
Like tough love, sometimes mercy is not merciful at all.