Between a rock and a hard place: refusing life-saving clemency in hopes for an appellate victory.

Content Warning: Death Penalty

Nearing the end of his term, and the predicted end of the moratorium on federal executions, President Biden commuted 37 federal death sentences to life without the possibility of parole. This leaves only three individuals on federal death row, each convicted of acts of terrorism or hate-motivated mass murder. Of the 37 incarcerated persons who are no longer facing death, two of them want to reject their clemency. Shannon Agofsky and Len Davis, both incarcerated in Terre Haute, Indiana, have refused to sign the clemency paperwork, and have filed petitions in federal court, seeking injunctions on the commutation of the sentences.

Both inmates are concerned with how clemency will affect their appeal. When reviewing a federal death sentence, the sentence will be sent back to the trial court if the appellate court determines one of three factors exist: (1) if the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor; (2) the admissible evidence does not support the findings of the required aggravating factors to impose a sentence of death; or (3) any other legal error occurred and was properly preserved for appeal. These additional standards give capital offense appeals higher scrutiny, in theory making appeals in death penalty cases easier for the person on death row to win. Davis also believes his status on death row brings heightened publicity to his case and hopes that publicity will illuminate his claims of government misconduct.

Additionally, persons on death row have a right to an attorney until their execution. Everyone charged and convicted of a federal crime is entitled to an attorney during the trial and direct appeal stage, but that right does not extend past initial appeal for those not serving a death sentence. For example, an incarcerated person sentenced to life without the possibility of parole is not entitled to an attorney when filing a habeas corpus petition, but those awaiting execution are. Prior to their commutations, both Agofsky and Davis enjoyed the right to an attorney for all of their post-conviction filings. Agofsky’s wife explained access to these attorneys is fueling, in part, his desire to reject President Biden’s clemency.

Despite both men attempting to bet their life on the appeals process, Supreme Court precedent is not in their favor. In 1927, the Supreme Court held in Biddle v. Perovich the President has the authority to commute a sentence from death to life imprisonment without the consent of the person convicted. The Court in Biddle relied on the rationale for the pardon power, stating that a pardon, “When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.” Of course, the President does not need to make clear to the public why a commutation or pardon serves the public welfare. However, it is evidenced that President Biden views ending executions, except in circumstances of terror and hate-based mass murders. From this perspective, abolishing the death penalty benefits the public welfare.

The court in Biddle also highlighted that a pardon is not a private act of grace from the President. The Court marks clemency acts as policy decisions, not private actions. Despite this definition, a commutation from President Biden likely felt like a bit of a grace and a lot of relief to the other 35 incarcerated persons who received them. Regardless of the intention behind President Biden’s decision, it is his policy to end federal executions—except in certain circumstances—and it is within his sole discretion to enact that policy through these commutations. While each pardon or commutation necessarily affects one individual, the court has interpreted these actions as affecting public safety.

Agofsky and Davis are attempting to take a calculated risk and put their faith in their appeals process. Neither of these men are claiming to reject the commutation because they prefer to be executed. Rather, each man believes they can prove their innocence. However, relying on the precedent from Biddle, it seems unlikely either of these men will be successful in their petition for injunctive relief. The new Administration has already issued an Executive Order that marks the end of the Biden-era moratorium and leaves the fate of these two men—and the fate of the federal death penalty—uncertain.