Bioethics Forum Essay
Is It Ethical to Reduce Prison Sentences in Exchange for Organ Donation?
A bill filed in the Massachusetts House of Representatives on January 20 would allow prisoners who choose to donate organs or bone marrow for transplantation to be eligible for reduced sentences. The bill stipulates that the sentence reduction would be at least 60 days and no greater than one year. Is such a policy ethical? For the sake of this essay, I will address this question with respect to donation of a single kidney.
The proposed law is intended to serve a clear benefit: to promote organ donations that can save lives or improve the quality of life for patients with end-stage renal disease—donations that otherwise likely would not occur. However, this policy is apt to evoke moral qualms.
Many people might respond with an immediate intuitive judgment that it would be unseemly to induce incarcerated individuals to undergo a surgical operation, with non-zero risk of death or lasting morbidity, for the sake of reducing their prison term. Such an intuition might be a signal that the policy is unethical, but it doesn’t suggest any reason why prisoners should not have the option to make a donation that is deemed acceptable, and laudable, for healthy individuals who are not in prison. To be sure, it is not the option itself, but providing the incentive for the option, that appears problematic in the prison context. Several ethical concerns can be raised about the proposed law.
First, the incentive might be considered a bribe. Bribes, properly speaking, involve inducements for wrongful conduct, but there is nothing wrong with donating a kidney to benefit someone in need. Second, the offer of a sentence reduction might be seen as coercive. This, however, is a common misconception, as coercion involves a threat of harm to induce an undesired act, such as surrendering one’s wallet at gunpoint. While prison is a paradigmatic coercive environment, under this policy prisoners would be free to choose whether to donate a kidney, and there would be no penalty to those who choose not to donate. Third, the offer of a sentence reduction might be regarded as an undue inducement. But the inducement would be undue only if it were to distort the rationality of an incarcerated person’s judgment concerning whether the benefits of a sentence reduction warranted the risks of the organ procurement operation. This problem could be obviated by a scrupulous process of consent for the donation obtained by a neutral party not employed by the prison to assure that it is a voluntary and adequately informed choice. (The bill is deficient in omitting any mention of informed consent.)
A fourth objection is that such a policy exploits incarcerated individuals who are highly motivated to reduce their time in prison. In his influential book, Exploitation, Alan Wertheimer offered a systematic analysis of this concept. He wrote, “At the most general level, A exploits B when A takes unfair advantage of B.” Clearly, the proposed law is meant to take advantage of the situation of individuals in prison by promoting organ donations in exchange for reduced sentences. Is that advantage-taking unfair? Wertheimer makes an important conceptual point: “There is a distinction between taking advantage of unfairness (or misfortune) and taking unfair advantage of unfairness (or misfortune).” The latter counts as exploitation; the former does not.
Incarceration for individuals found guilty of committing crimes is not per se unfair. In the U.S., however, imprisonment is characterized by pervasive unfairness, including racial inequities in sentencing, excessively long sentences, and inhumane conditions. It doesn’t follow that the offer of prison sentence reduction in exchange for organ donation unfairly takes advantage of incarcerated individuals. Rather, it gives them an opportunity to judge whether, on balance, they are better off reducing their time in prison in exchange for an organ donation, in addition to benefiting a person in need of a transplant. On the other hand, one might judge that the sentence reduction offered, from 60 days to one year, is not sufficiently large to be fair to those willing to undergo the risks and discomforts of a kidney donation operation.
Although anticipating that others will disagree, I reach the tentative judgment that the proposed Massachusetts law is not unethical, provided that necessary conditions for obtaining informed consent and assuring the safety of donors are implemented. The latter would include carefully screening candidates to assure that they are healthy enough to withstand kidney donation without undue risk, performing the operations to procure organs in health care institutions with a track record of high-quality for the procedure, and providing adequate follow-up medical care for the donors.
The case for or against the ethics of a policy that offers prison sentence reduction in exchange for organ donation would be enhanced by conducting a survey of previously incarcerated individuals to ask whether or not they judge the policy to be acceptable and for what reasons. These research participants would know about the prison environment without currently being subject to it. While empirical research cannot, itself, resolve ethical issues, it would be informative if a majority of the respondents were opposed to or in favor of such a policy.
Franklin G. Miller, PhD, is a Professor of Medical Ethics in Medicine at Weill Cornell Medical College and a Hastings Center fellow and board member.
I suspect the unintended consequences will outweigh any purported benefit to society with individual rights bearing the brunt of the true societal costs. We have only to look at the PRC to grasp where such a policy will ultimately lead under utilitarian pressure.
While being under punishment for committing a crime is not necessarily unfair, I think it is impossible to separate the injustice of the current incarceration system from the ethical dilemma in this instance. Regardless of whether the judgement of risk versus reward is sound, a person would be enduring a surgery with health risks in order to remove themselves from an unjust system. This policy leverages injustice and further incentivizes the continuation of that injustice. Healthcare systems and anyone who could benefit from organ transplants (which is any of us) would have an inherent interest in maintaining an incarcerated population incentivized to donate their body for freedom. This is different from a policy that would require businesses to grant employees PTO to donate organs, offer tax breaks to individuals who donate organs, or a marketing campaign encouraging donations, none of which prey directly upon individuals in difficult circumstances who already face significant disadvantages under the current justice system.
Examination of vulnerability due to race and its relationship to the demographics of US penal systems are required for this article. Demographic data of the penal system suggests that individuals of African descent are 5 times more likely to be incarcerated compared to those of European ancestry. The disparities associated with mass incarceration are further exemplified by longer sentencing for African Americans compared to adjudicative sentencing for White offenders that commit similar crimes. These implications cannot be separated from the ethical analysis required as individuals that are the most likely to benefit from organ transplants are likely to be individuals that do not have socioeconomic or racial/ethnic vulnerabilities.
Despite the positive assertion that expanded availability to organs will improve the lives of people with end-of-life pathophysiological illnesses (such as renal disease), this is a use of utilitarian and consequentialist ethics. Specifically, the individuals that bear the burden of invasive medical procedures to provide these organs are the individuals that will benefit the least. Furthermore, this leaves an unanswered question regarding unequal benefit for individuals that are deemed ineligible for parole.
Considerations of standardized psychometrics such as the Psychopathy Checklist Revised suggest that African Americans tend to score higher on this assessment. A score of 30 or renders an individual ineligible for parole due to the psychometric properties of the test suggesting that these individuals are at high risk for violent crimes and recidivism. Thus, this article does not address how this law can ensure distributive justice especially for individuals that are facing life sentences.
If the Department of Human Services has established 45 CFR Part 46.301 to provide special protections for prisoners who participate in biomedical research, it would seem that safeguards against undue influence on decision-making and voluntary organ donation as a condition of sentence reduction should also be established.
The bill of the state of Massachusetts’ House of Representatives allowing prisoners the opportunity to donate bone marrow or organs for the eligibility for a reduced sentence, with the premise that they are making this choice free of will, is profoundly unethical, arguably racist, and at a minimum willfully ignorant. Not connecting the realities of being a prisoner to both the impact of the disproportionate processes that have determined their sentencing and the trauma in concert with the reduction of opportunities experienced in their lives prior to prison when implementing a bill or policy is negligent. A bill presented under the guise of its positive impact on those who desperately require the donation of an organ to live as justification to use the reduction of a prison sentence to prisoners who are desperate to get out of an institution where they are removed from the joys of life, and not stop to say this is manipulation of the worst kind is morally abysmal.
The 2020 Harvard Criminal Justice Report found that Massachusetts consistently imposed harsher initial charges and longer sentences on people of color as opposed to whites in their state, leading to an over-representation of people of color at every level. As per Harvard’s School of Public Health, health disparities cost the state 5.9 Billion a year. Nevertheless, the conversation of the vulnerable population whom this bill would most likely negatively impact as a quality of health, survival, and precedent has not been a deterrent. Has the determination of a vulnerable population become synonymous with the population deemed of personage by Society? Taking advantage of lives predicated from historically systemic racist actions of redlining, restrictive convents, and a disproportionate punitive legal system that’s reflected in current health disparities, gaps in generational wealth, education, and the mass incarceration of African Americans speaks to the use of utilitarian ethics in the worst fashion.
Jay-Z, the Brooklyn-based, Grammy-winning, Hall of Fame inductee, whose lyrics now cover the side of the Grand Army Library, is famous for his depiction of the struggles of inner-city African-American youths to survive. He stated on his first album, “We hustle out of a sense of hopelessness, sort of a desperation, we become addicted sort of like the fiends we accustomed to servin’, but, we feel we have nothing to lose. So, we offer you, well, we offer you our lives, right?”. For the part of American Society with no lived experience of this world, his lyrics became memorized language that provided a picture of the division of access in a system we all live in. Like a picture, without context, it loses meaning; without background, the sensory connection is absent. For those who have lived in the experience, the question of capacity in the context of what you would risk for the chance of a better life is ever-present. Leaving one to ironically sing “Can I Live?”.
The manipulation used to gain consent from a population whose capacity to make this decision is historically and situationally skewed due to the coercion of multifactorial access limitations makes this process unethical. The Society of Medicine should aim to dig deeper to ensure our actions’ lasting effects will amplify the healing we seek to provide and not exacerbate symptoms of chosen ignorance.
Reducing prison sentences in exchange for organ donation has the potential to be unethical due to the fundamental principle of informed consent. For individuals not incarcerated organ donation is likely self motivated. Pressuring an individual to agree to such procedure is frowned upon and considered morally and medically unethical. In the context of reducing prison sentence, it is not clear enough whether the consent to undergo transplant surgery in exchange for an incentive would be truly voluntary or if full knowledge of the possible risks and benefits were appropriately considered. In turn, if this bill is passed the integrity of the organ donation system could be compromised leading to further ethical concerns about the veracity of organ allocation and the true motivation of those who opted to donate.