The requests of two prisoners who have taken the unusual step of asking a federal judge to nullify their death row commutations granted by President Joe Biden should be denied because the act of leniency doesn’t violate the Constitution, the Justice Department argued Monday in a court filing.
The inmates — Shannon Agofsky, 53, and Len Davis, 60 — are being held in a federal prison in Terre Haute, Indiana, where the U.S. government puts inmates to death. A week after Biden announced he was commuting the sentences of 37 of the 40 prisoners on federal death row to life without the possibility of parole, Agofsky and Davis filed emergency motions seeking an injunction to block the change, arguing it could affect their appeals amid claims of innocence in their initial convictions.
In responding to Davis’ request for an injunction, the U.S. government offered three reasons U.S. District Judge James Sweeney should deny it, writing that not only are commutations legal, but also that the president has the authority to decide them and a prisoner has “no authority to reject” one.
“The President’s commutation of a sentence ‘is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed,'” the U.S. attorneys wrote. “Allowing Davis to veto this action would encroach on this exclusive and ultimate authority that is ‘part of the Constitutional scheme.'”
The Justice Department said Agofsky has failed to identify a “jurisdictional basis for his petition.”
In his filing, Agofsky said he is worried that no longer being a death row inmate would strip him of heightened scrutiny in his case or the process in which courts should examine death penalty cases for errors because of the life and-death consequences of the sentence.
Besides requesting an injunction, the men also asked for co-counsel to be assigned to help them in the latest litigation.
Sweeney agreed last week and assigned the inmates representation through the Indiana Federal Community Defenders.
Sweeney noted in an order granting counsel that federal prisoners are entitled to counsel only when they are under death sentences or for evidentiary hearings in their cases.
“Here, Mr. Agofsky is no longer under a death sentence,” Sweeney wrote. “Therefore, whether to appoint counsel is purely a discretionary matter.”
He added that the court “harbors serious doubt that it has any power to block a commutation” but that “given the novelty of the legal question, the Court prefers to receive counseled briefing on the motion.”
Sweeney referred to a 1927 U.S. Supreme Court ruling that maintains that a president has the power to grant reprieves and pardons and that “the convict’s consent is not required.”
Agofsky, however, believes he has the right to refuse a commutation based on wording in the Constitution, which says a president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
According to Agofsky’s wife, Laura, he said at issue is the word “grant,” which he believes implies a person needs to have made an initial request. In his case, he said, as well as Davis’, the men never requested commutations and refused it when asked multiple times to ask for a reduced sentence.
They contend that sets them apart from the other former death row inmates who did seek commutations.
Davis and Agofsky must reply to the Justice Department’s response this week.
Agofsky was convicted in the 1989 murder of a bank president, Dan Short, whose body was found in an Oklahoma lake. Federal prosecutors said Agofsky and his brother, Joseph Agofsky, abducted and killed Short and made off with $71,000.
Both brothers were given life sentences. But it was while he was incarcerated in a Texas prison that Shannon Agofsky was convicted in the 2001 stomping death of a fellow inmate, Luther Plant, and was sentenced to death in 2004. (Joseph Agofsky died in prison in 2013.)
Davis, a former New Orleans police officer, was convicted in the 1994 murder of Kim Groves, who had filed a complaint accusing him of beating a teenager. Prosecutors said Davis hired a drug dealer to kill Groves, and they charged him with violating Groves’ civil rights. Davis’ original death sentence was thrown out by a federal appeals court but reinstated in 2005.
Davis “has always maintained his innocence and argued that federal court had no jurisdiction to try him for civil rights offenses,” he wrote in his filing last month, requesting an injunction for his commutation.
Biden’s sweeping clemency action was praised by anti-death penalty groups but also criticized by some of the victims’ families, who say they believe death row prisoners are undeserving of such leniency.
Biden declined to grant commutations to three federal death row prisoners who were involved in mass killings or terrorist attacks.
Still, President-elect Donald Trump said after the announcement that he would “vigorously pursue the death penalty” during his second term. He has also said he would expand capital punishment on the federal level to include child rapists, migrants who kill U.S. citizens and law enforcement officers, and those convicted of drug and human trafficking, although how he would do so remains unclear.
Trump’s first term ended with 13 federal inmates having been put to death. The Biden administration announced a moratorium on federal executions after he took office and said last month that he granted the death row commutations because “in good conscience, I cannot stand back and let a new administration resume executions that I halted.”
