Biden Commuted Their Death Sentences. Now What?

In the days after President Joe Biden commuted his death sentence, 40-year-old Rejon Taylor felt like he’d been reborn. After facing execution for virtually his entire adult life for a crime he committed at 18, he was fueled by a new sense of purpose. He was “a man on a mission,” he told me in an email on Christmas Day. “I will not squander this opportunity of mercy, of life.”

Taylor saw new signs of life all around him. Biden had granted clemency to 37 of the 40 men on federal death row, an unprecedented move that none of them expected. One of his neighbors, a man who long ago seemed to have “fallen into an abyss in his fractured mind, never to return again,” suddenly appeared lucid, talking to Taylor instead of the voices in his head. “He even cleaned up his cell today, something he NEVER does. … He now has hope, despite a life sentence! I’m amazed!”

The sense of renewal was shared by men like Charles Hall, whose years on death row had been especially punishing. In a six-page letter to Biden, he vowed that the decision to grant clemency “will not be wasted on me.” Hall had earned a paralegal certificate while on death row and he planned to continue his education, he wrote, adding that change and positivity are possible “even behind razor wire, fences, walls, and bars.”

The outpourings of gratitude came amid a flurry of activity inside the Special Confinement Unit at the U.S. Penitentiary in Terre Haute, Indiana. Men sorted their belongings and packed their things. They had been told that the unit would likely be shut down and its residents transferred to other prisons. No one knew precisely when this would happen — or where they might end up — but it was best to be prepared. Prison transfers are notoriously disruptive, taking place with no advance notice, and sometimes lasting months.

Yet not everyone was eager for a new beginning. Within days of the announcement, two men had sent handwritten emergency petitions to a federal court in Indiana seeking to block the commutation of their death sentences. Neither of them had applied for clemency and both were adamant that they did not want it, arguing that it threatened to derail their efforts to prove their innocence in court. One of them decried Biden’s commutations as a “publicity stunt.” This week a third man, Iouri Mikhel, similarly objected to Biden’s reprieve.

The challenges are a long shot to say the least. “The Court harbors serious doubt that it has any power to block a commutation,” a federal judge wrote in response to the first two filings. But the lawsuits also lay bare a sobering reality for most people who go from facing a death sentence to a life sentence with no chance of release. While people on death row are automatically entitled to legal representation, those serving life without parole are not. And for those who harbor even the faintest hope of overturning their convictions, a commutation can foreclose on legal avenues that once made it possible. This is true even for those who do not claim to be innocent but have challenged their convictions on other grounds, from ineffective advocacy by trial lawyers to racial bias to official misconduct.

With Taylor and his neighbors facing a lifetime behind bars — and with more questions than answers about what will happen next — the mood in Terre Haute has shifted. The initial wave of celebration has given way to anxiety over the future. Rumors have run rampant about the upcoming prison transfers; some days the men hear they will happen imminently, only to be told that it could be a while. Many are nervous about living in general population after years or even decades in solitary confinement.

In the thick of such uncertainty, the man whose mental illness seemed to recede after the commutations has gone back to his previous behaviors, sometimes yelling from behind his steel cell door, Taylor told me recently. “He’s falling back under the weight of his stress again.”

Significant Uncertainty

After an unprecedented 13 executions during Trump’s final six months in office, there was no question that his reelection spelled doom for the men in Terre Haute. Although Biden fell short of abolishing the federal death penalty as he vowed to do during his 2020 campaign, his mass clemency robbed Trump of a chance to carry out another execution spree. “In good conscience, I cannot stand back and let a new administration resume executions that I halted,” Biden said upon announcing the commutations.

Biden’s moratorium had been imposed in January 2021 by Attorney General Merrick Garland, who also announced a review of the federal protocol used to carry out Trump’s executions. After four years, the results were finally released this week. In a 25-page report, the Department of Justice addressed long-standing concerns over the method of lethal injection used to carry out Trump’s execution spree. Autopsy reports have long revealed that executions carried out by a single dose of pentobarbital (as well as other drug combinations) have led to pulmonary edema, the filling of fluid in the lungs.

Citing “significant uncertainty” about whether the pentobarbital executions inflicted “unnecessary pain and suffering,” Garland rescinded the government’s lethal injection protocol, calling on the Justice Department to “halt the use of pentobarbital unless and until that uncertainty is resolved.”

“The DOJ’s review has confirmed what medical experts have said for many years: pentobarbital causes excruciating pain when used to carry out executions,” death penalty lawyer Shawn Nolan said in a statement. While Garland’s actions could certainly complicate plans to restart federal executions, the truth is that Trump would have been unlikely to be able to carry out new executions soon after returning to office anyway. The three remaining men on death row — Dylann Roof, Dzhokhar Tsarnaev, and Robert Bowers — are a long ways off from exhausting their appeals.

Trump could theoretically restart executions sooner if the men fighting their commutations somehow prevail. Winning their lawsuits might allow their post-conviction appeals to continue in the short term — but if their challenges eventually fail, it would set them up for execution.

Shannon Agofsky, who filed his challenge late last year, says that’s a risk he is willing to take. “The fact that I do not want commutation may lead you to believe that I am mentally disturbed, suicidal, or somehow wishful of death,” he wrote in an email sent via his wife, Laura Agofsky, in late December. “That is not the case. I am in full possession of my faculties, and am not eager to die at all; in fact, I have much to live for.”

Agofsky found out about the commutations the same way as his neighbors: through media reports shortly after 5 a.m. on December 23. He immediately called Laura, who lives in Germany and was shopping for Christmas. She cried when she heard the news. “I sort of had a mental breakdown in the grocery store,” she told me in a phone call. Both of them assumed that he would lose his lawyers and that his legal challenges were now null and void. (His lawyers have since reassured him that they will continue to represent him.)

Agofsky was sent to death row after killing a man at USP Beaumont, a maximum security penitentiary known as one of the bloodiest prisons in the federal system. He swore it was an act of self-defense — and a key eyewitness later gave a sworn declaration saying he was coerced into pinning the blame on Agofsky. Nonetheless, in 2004, a federal jury found Agofsky guilty and sentenced him to death based on the fact that he had previously been convicted of a different murder. 

But Agofsky is adamant that he is innocent of the first crime. He had been sent to Beaumont after being convicted and sentenced to life alongside his brother for a 1989 bank robbery and killing. The case against him turned almost entirely on fingerprints matched to Agofsky — a type of forensic evidence that, while ubiquitous, has since been revealed to be often unreliable, especially given the analytical techniques used at the time.

It was not until Agofsky was sentenced to die that he was able to secure lawyers who investigated both his cases and found evidence questioning his original conviction. Though records in his case remain under seal, he argues that they expose his wrongful conviction — and that Biden’s commutation order came just as he was “on the cusp” of proving his innocence.

Agofsky wrote in an email that he would do “whatever it takes, go to any lengths, to prove that my brother and I did not rob a bank, or kill a banker.” At their 1992 sentencing, his brother Joseph accused the government of manufacturing evidence, telling the court “our innocence will be proven eventually.” Joseph Agofsky died in prison in 2013.

In his legal filing, Agofsky invoked the “heightened scrutiny” courts are supposed to give death penalty cases. “To commute his sentence now, while the defendant has active litigation in court, is to strip him of the protection of heightened scrutiny,” he wrote.

Len Davis, the second man who challenged his commutation in December, for his part argued that he “has always maintained that having a death sentence would draw attention to overwhelming misconduct” in his case.

Davis, a former New Orleans police officer, was convicted and sentenced to death for ordering the murder of a woman who had allegedly filed a complaint against him. Unlike Agofsky, he has no pending appeals remaining. But Davis told me that he is not afraid that his lawsuit would leave him vulnerable to execution. “First, I’m a Born-Again believer in Jesus The Christ,” he wrote in an email. “I can’t be scared with a trip to heaven.” What’s more, he argued, “Trump should be able to empathize with me about D.O.J Misconduct.” He hopes that by rejecting a commutation, he will draw more attention to his innocence claim — and possibly receive a pardon.

On January 14, federal prosecutors filed responses to the emergency petitions, calling the judge’s doubts about his power to block a commutation order “well-founded.” Under existing case law, “a prisoner’s consent is not necessary when the President unconditionally commutes a federal death sentence to a life sentence,” they wrote. Two days later, a lawyer appointed to represent Agofsky and Davis summarized their arguments in response, but ultimately agreed with the government that the court “does not have the power to block” the commutations.

Craving Connections

By the second week of January, rumors swirled among the men in Terre Haute that the transfers would happen far sooner than expected. There were whispers that most, if not all, of them might be headed, at least temporarily, to ADX Florence in Colorado, the highest security penitentiary in the federal system. For Taylor, who craves community and human connection, such an environment would be hard to take. In contrast to the Special Confinement Unit, where residents have access to phone calls and emails, ADX is notorious for its isolation.

Taylor found himself unprepared. He had previously heard that the Bureau of Prisons was willing to at least consider housing preferences from the men whose sentences had been commuted. He hoped to get into a residential program that was available right there in Terre Haute. The program, called Life Connections, is “designed for inmates who are sincerely interested in seeking their faith, or improving their social responsibility,” according to the Bureau of Prisons. Participation is up to the chaplain — and Taylor, who is known for his empathy and desire to make a positive impact inside and outside prison walls, could be an ideal candidate. 

In an email responding to questions from The Intercept, Bureau of Prisons spokesperson Scott Taylor wrote that the men whose death sentences were commuted “will be transferred to an institution commensurate with their respective safety, security, health, and programming needs.” He did not provide a timeline, but the rumored imminent transfers have not come to pass.

With Trump’s inauguration just a few days away, Taylor and his neighbors remain in limbo. For now, his cell is packed. His beloved art supplies and family pictures are in boxes, which he will send to loved ones for safekeeping. His walls are mostly bare, save for a calendar featuring cityscapes and a photo of one of his paralegals with her French bulldog. Rather than distract himself with TV, he’s trying to prepare himself mentally, he said, the same way he did before the commutations were announced: by envisioning the worst-case scenario while hoping for the best. “If you sit with anxiety, it helps you prepare for the future.”