South Carolina appellate attorney Joe Savitz did everything he could to try to prevent the execution of Michael Passaro — not necessarily because he believed in his innocence, but because Passaro wanted to die.
Last September, Passaro was executed for the 1998 death of his daughter. Passaro was in a custody dispute with his second wife in November 1998 when he doused his van with gasoline, strapped 2-year-old daughter Maggie inside and then sat down in his car before lighting it on fire. However, before the fire could consume him, Passaro jumped out of the car but left Maggie to die.
Passaro pleaded guilty to murder in 2000 and requested — and received — the death penalty. Passaro did not, and never wanted, to appeal his guilty plea, and rejected his attorneys' attempts to help him.
Savitz argued that Passaro should not be executed because he would see it as a reward, not punishment. Passaro, Savitz said, had a long-standing death wish to join his first wife, who was killed in 1992 when a car struck her while she was trying to help an accident victim.
"He does not see the death sentence as punishment. He sees it as an escape from punishment," Savitz said before Passaro's lethal injection. "He believes that he will be reunited with his first wife and the child that he killed, Maggie. He wants to die and has gotten the state to help him carry it out in what is essentially a state-assisted suicide. He is not doing this because he feels a sense of remorse."
According to the Death Penalty Information Center, a group opposed to capital punishment, Passaro's execution was one of seven "volunteer" executions in 2002, where death-row prisoners relinquished their remaining appeals and opted to be put to death.
More death-row inmates have been volunteering for their executions: Between 1993 and 2002, 75 volunteered for death, compared to the 22 consensual executions between 1977 and 1992. (Gary Gilmore, the first prisoner put to death after the Supreme Court reinstituted capital punishment in 1976, "volunteered" for his execution in 1977 because he did not want to live the rest of his life on death row.)
Some critics argue that this shows that, contrary to popular belief, death is not the ultimate punishment for prisoners.
"One could argue that life in prison is the worst kind of punishment and not the death penalty," said Richard Dieter, DPIC's executive director. "So many people wouldn't be volunteering for it if it was so bad."
Death Row’s Psychological Torture
Over the past 10 years, more death-row inmates have preferred execution to facing seemingly endless years of appeals. Some inmates had been on death row for more than 10 years and seemed to grow tired of appealing their cases, not knowing when or if they were going to die. Others, like Passaro and Oklahoma City bomber Timothy McVeigh in 2001, chose not to pursue their appeals either at all or to their fullest extent.
Experts say prison conditions as well as increasing reluctance by governors and courts to grant clemency and appellate relief to inmates have helped fuel the rise in volunteer executions.
"There are an increasing number of states where the only alternative to the death penalty is life without the possibility of parole. I believe that is true in 35 out of the 38 states where the death penalty is available," said Michael Radelet, professor of sociology at the University of Colorado. "For a lot of the prisoners on death row, they are becoming well aware that they are going to die in prison [either through execution or commuted death sentence]."
Radelet also points out that prison conditions have not given inmates much reason to want to live longer on death row. Many live in isolation, allowed out of their cells for only an hour a day. Time allotted for activities for death-row inmates has dwindled. And, some experts argue, as human conditions on death row have diminished, so have prisoners' sense of humanity and will to live.
"In a number of states over the past 10 years, the amount of recreational activities for death-row inmates has decreased, for example, materials for hobbies, art, knitting," Radelet said. "In some prisons in Florida, they have replaced the bars with Plexiglas, making the pain of imprisonment, the harshness of prison conditions that much more."
The Myth of ‘Volunteer’ Executions
Still, death-penalty advocates say there is no such thing as a volunteer execution. No one, they argue, is on death row because they want to be. They went through a legal process to land on death row where they were arrested by law enforcement, convicted and sentenced by either a judge or jury.
"That is such a misnomer," said Dianne Clements, executive director of Justice for All, a Houston-based victims' advocates group. "There is no such thing [as a consensual execution] … it is a phrase coined by those who would oppose the death penalty. … It's just not true. Why can't death-penalty opponents call it what it is: a prisoner's decision to end his appellate process."
Clements indicated that there is some irony to death-penalty opponents suggesting that life in prison would be a more humane sentence than capital punishment. Some death-penalty opponents claim to be concerned about preserving the dignity of death-row inmates and not resorting to barbaric methods to punish murderers. But at the same time, they suggest that a life sentence — which they admit could be a punishment worse than death — would be better for the prisoners they are trying to help.
"It just shocks me that death-penalty opponents would want a crueler form of punishment for inmates. Give me a break," Clements said. "It's not like most of them [death-row inmates] suddenly have an epiphany and decide to end the appellate process. Most have been on death row for years.
Why can't we call it what it really is?" Clements continued. "That some prisoners just seem to accept responsibility for what they have done and are just ready for it [the death penalty]. Some accept responsibility, some do not. Anti-death-penalty advocates and defense counsel are doing a disservice and dismissing and minimalizing the actions of the people they claim to be protecting by doing what they do."
Ongoing Fight for Proper Closure
Clements acknowledges that some inmates do not go through 20 years of legal battles, and opt to accept death almost immediately — they plead guilty to murder, request and receive the death penalty and choose not to pursue any appeals. These cases especially, some experts maintain, show that many prisoners have death wishes and are using law enforcement officials to help them carry out their suicides.
Some death-row prisoners suffer from mental illness and depression and may admit to things that things they didn't do. Allowing volunteer executions, critics say, empowers prisoners, allowing them to essentially schedule their deaths … and escape accountability, not embrace it.
"It's interesting, we've put Jack Kevorkian in jail for that kind of thing," said Renny Cushing, executive director of Murder Victims' Families for Reconciliation. "In part, it [volunteer executions] allows the state to participate in state-assisted suicides."
"It goes back to the very act of the crime itself, the murder," said Radelet. "That's where you find these guys do not value themselves, who waive mitigation, fire their attorneys, plead guilty to murder and ask for the death penalty."
It is difficult to predict whether the number of volunteer executions will continue to rise. The DPIC's Dieter suggests there should be limits placed on punishment — that perhaps the ultimate fate of a death-row prisoner must be determined by the legal system after a certain amount of time. If the time limit runs out, Dieter says, then the prisoner should receive an automatic life sentence.
"The state has an interest in getting it right, and the families have a right to get some closure, instead of going through years and years of their tragedy being revisited," Dieter said.
But what kind of closure do victims' families want? One guarantee is that the debate over the death penalty and its effectiveness will go on as prisoners continue to volunteer for lethal injection and DNA evidence casts doubt over some capital murder convictions.
Before he leaves office on Jan. 13, Illinois Gov. George Ryan, who has placed a moratorium on executions in his state, is expected to make a decision on whether some of the 160 condemned inmates will receive clemency.
The Illinois Prisoner Review Board reportedly has recommended clemency for fewer than 10 of the 140 death-row prisoners who have requested that their sentences be commuted to life in prison.