Death-row prisoners reject commutations by Biden

By Janet Post
January 27, 2025

Two inmates on death row at the federal penitentiary in Terre Haute, Indiana, Len Davis and Shannon Agofsky, have refused to agree to commutations issued Dec. 23 by President Joseph Biden. The outgoing president had reclassified the sentences for 37 of the 40 prisoners on federal death row to life in prison without parole.

In court filings Dec. 30, both prisoners say they never requested a commutation, did not want one and will not sign the paperwork they were offered. They both are fighting to overturn their conviction and win release from prison.

Agofsky, 53, was sentenced to death in 2004 for killing another prisoner while serving a life sentence for an earlier murder. He says he was innocent. “To commute his sentence now, while the defendant has active litigation in court, is to strip him of the protection of heightened scrutiny” that comes from a death sentence, his court filing says.

Davis, 60, a former New Orleans cop, was convicted in 1996 of ordering the murder of a woman who had filed a brutality complaint against him. He has always maintained his innocence, and, in his court filing, says that the death sentence draws “attention to the overwhelming misconduct” in his case.

Biden made it clear in ordering the commutations that he gave no consideration to these fights. “Make no mistake: I condemn these murderers, grieve for the victims of their despicable acts, and ache for all the families who have suffered unimaginable and irreparable loss,” Biden told the press when he issued his 37 commutations.

But there is a serious question about whether the two inmates actually can refuse the commutations. A precedent-setting 1927 U.S. Supreme Court decision, Biddle v. Perovich, upheld President William H. Taft’s reclassification of the death sentence of a gold miner, Vuco Perovich. Perovich, an immigrant worker from Montenegro, was convicted of killing Jacob Jaconi, a fisherman from Greece.

The Supreme Court ruled that the president has the power to commute a sentence of death to life in prison without the consent of the prisoner. Perovich fought the commutation, seeking a way to get out of prison.

Justice Oliver Wendell Holmes Jr. wrote the decision saying, “Just as the original punishment would be imposed without regard to the prisoner’s consent and in the teeth of his will, whether he liked it or not, the public welfare, not his consent, determines what shall be done.”

Even though during Biden’s presidency the Justice Department halted federal executions, it continued to seek new convictions imposing the death sentence and to defend existing ones against challenges in court.