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To: US Department of Health and Human ServicesFrom: Janelle SpiraRe: Death Row Inmates Should Be Permitted to Donate Their Organs Date: 30 March 2014Recommendation: I recommend that prison inmates on death row should be permitted to donate their organs for the following reasons: allowing death row inmates to donate their organs would save lives and help mitigate the dire need for more organ transplants in the United States; it would benefit prisoners by providing them with a chance for moral contrition before they die; and it would produce an overwhelming benefit that would outweigh the cost of coercion, which could be minimalized by instituting safeguards in the organ donation process. Brief Statement of Problem: Despite a lack of legislation forbidding death row inmates from donating their organs, a legal precedent has been set that prevents prisoners from becoming organ donors. Past death row inmates have expressed their desires to donate their organs after being executed, but were denied their requests. Unless a new law prohibiting death row inmates to be organ donors is implemented, prison inmates should be permitted to be organ donors because of the vast benefits this practice would confer on both the prisoners and society. Rationale for Policy Recommendation: First, allowing death row inmates to donate their organs would save lives and help combat the dire need for more organ transplants in the United States. According to the U.S. Department of Health and Human Services, an average of 21 people die every day waiting for transplants that cannot take place because of a shortage of donated organs (The Need is Real: Data). As of March 29, 2015, there were 123,367 people on the organ transplant wait list; however, in a normal year, such as 2013, only 28,954 organ transplants were performed. This means that a mere 24% of people on the transplant list are likely to receive the life-saving organs they desperately need in any given year. This leaves 76% of Americans stagnant on the transplant list, praying they will receive an organ before it is too late. Allowing death row inmates to donate their organs would ameliorate the critical organ shortage problem. A single organ donor can save up to 8 lives. As of October 1, 2014, there were a total of 3,035 death row inmates in state prisons (Death Row USA Population Figures). If only half of those inmates donated their organs, 12,100 lives could be saved. If all of them donated their organs, 24,280 lives could be saved. Allowing prison inmates to donate their organs would be extremely beneficial to organ recipients and help with the critical need for more organ transplants in the United States. Arthur Caplan, a leading opponent of organ donation by death row prisoners, argues that the number of potential organ donors is too small to be significant. It is true that the US only executes a small portion of the prisoners on death row each year. The average number of executed prisoners for the last four years has been 40 per year (Number of Executions by State and Region Since 1976). However, our society places an infinitely high value on human life. Even if allowing inmates to donate their organs saves only one life, it is worth it to protect and preserve the sanctity of that one human life. Although prisoner transplants are not the sole solution to the organ donor shortage, they would help mitigate the problem and save the lives of individual Americans who might otherwise never find an organ match and die. Second, allowing death row inmates to donate their organs would benefit prisoners by providing them with a chance for moral contrition before they die. Prison inmates who attempt to donate their organs often cite moral contrition as a major motivating factor behind their decision to donate. Christian Longo, a death row inmate who helped ignite the movement in support of prisoners donating organs, wrote an article in the New York Times in which he explained the motivations behind his desire to donate. A convicted killer, Longo came to realize “the enormity” of the deeds he had committed and felt deep “remorse” and a growing “wish to make amends.” He recognized that there was “no way to atone” for the crimes he had committed, but desired to provide a final “benefit to society” by donating his organs (Longo). Because Longo would be dead at the point of donation, he would receive no benefit other than knowing that he did one small act of good after a life of evil. The component of moral atonement in an inmate’s decision to donate his organs provides a positive psychological effect. In the philosophical theory of prisoner rehabilitation, the incentives behind punishing criminal offenders are therapeutic rather than punitive (Smith). Rehabilitative methods aim to allow a prisoner to come to terms with what he has done and realize that it is necessary for him to change his life. The donation of one’s organs can be seen as a rehabilitative act because it is an expression of change within the prisoner, signaling his desire to do good. In the lives of death row inmates, the donation of organs may be one of few good deeds they ever commit. Allowing a prisoner to do one final act of good is a form of rehabilitative justice. The act is mutually beneficial for all parties involved: the organ recipient gets a life-saving organ and the inmate gets to come to terms with the crimes he has committed and partake in a final act of penitence. Third, allowing death row inmates to donate their organs would produce an overwhelming benefit that would outweigh the cost of coercion, which would be minimalized by instituting safeguards in the organ donation process. One of the major issues with allowing prisoners to donate organs is the element of coercion. Complete control over inmates defines the prison environment: it is known for depriving inmates of their decision-making capacities and forcing them to obey. Recognizing the inherent coerciveness of prisons, Nancy Potter claims that “voluntary consent is compromised by the prison environment.” She hypothesizes that “prisoners will” think that they are “making an implicit exchange for their generosity” such as a shorter, easier sentence or special privileges in exchange for organs. This type of coercion would certainly be relevant and rampant in the case of living donors (O’Reilly); however, in the case of prisoners on death row, they have nothing to gain from donating their organs and are free to choose if they desire to do so or not. I am not proposing mandatory organ donor status for all death row inmates—that would be coercive. Rather, I am proposing that all healthy death row inmates should have the option to donate their organs if they desire to do so. The decision to donate organs would be based on the prisoner’s volition. Coercion functions as a major factor for living prisoner donation, but significantly decreases in the case of death row inmate donation because the decision is voluntary and would not produce any material gain for the prisoner (Lin). In order to ensure that prisoners are capable of giving informed consent, all death row inmates interested in organ donation would have to partake in various safeguards against coercion. One safeguard would be teaching inmates who may not have a high level of education about the details of organ transplant to ensure they understand their decision. Another would be preventing the prison inmate and his family from receiving any monetary gain or media coverage for his actions. Denying a prisoner the ability to consent or refuse to donate his organs infringes upon his autonomy (Lin). This raises the question of whether prison inmates should have control over what happens to their bodies after they die. Prison inmates who consent to organ donation desire for their bodies to be used to benefit society. With the addition of safeguards against coercion, the benefit of inmate organ donation outweighs the element of coercion. Background Information and Policy Implications: Currently, capital punishment is legal in 35 states, the U.S. Military, and the U.S. Government. Execution methodology and statistics designate lethal injection as the most common form of carrying out the death penalty. Since 1976, 1,216 executions have been carried out by lethal injection. However, lethal injection is not the only method employed. Despite having lethal injection as the primary execution method, 8 states still permit electrocution, 3 states permit gas chambers, 3 states permit hanging, and 2 states permit firing squad (Lethal Injection). Most recently, on March 23, 2015, Governor Gary Herbert of Utah signed legislation that reauthorized the state’s right to utilize the firing squad in the event that drugs required for lethal injection are unavailable (Bellware). The method of carrying out capital punishment matters for organ donation because it affects which organs are viable after execution. For instance, a heart transplant would be impossible if the normal three-drug combination was used for lethal injection. The three-drug protocol uses sodium thiopental to induce unconsciousness, pancuronium bromide to cause muscle paralysis and respiratory arrest, and potassium chloride to induce cardiac arrest. Donation from death row inmates would not be like a typical brain-death donation from a normal hospital patient and, thus, would have to be a case of controlled DCD, donation after cardiac death (Lin). A possible implication of allowing death row inmates to donate their organs would be a change in execution methodology. China, the leading country for capital punishment, employs death by firing squad to maximize the number of organ transplants from death row inmates (Caplan). Death by a bullet through the brain allows for the donation of the heart and other crucial organs. If this method were to be implemented in the United States, there would be major debate over whether it constituted cruel and unusual punishment. The 8th Amendment of the Constitution forbids cruel and unusual punishment. Over the course of the United States’ death penalty history, the 8th amendment has had a drastic effect on death penalty methodology. The last major court case in reference to execution methods was Baze v. Rees (2008), which held that lethal injection did not constitute cruel and unusual punishment. Lethal injection is the most common method because it has been deemed the most humane and the most in accordance with the 8th amendment. Other methods including electrocution, hanging, firing squad, and gas chamber are commonly seen as less humane (Ehrlich). A possible solution to this conundrum would be seeking prisoner consent to employ a different method of execution. Furthermore, even if lethal injection drugs were deemed the only acceptable method, the majority of the prisoner’s organs would still be viable. Organ transplant from death row inmates would still save a myriad of lives. Background of Problem: While there is one case in which it was allowed — a convicted Delaware inmate donated a kidney to his mother in 1995 — organ donation by inmates (death row and general population) has not been permitted in the United States. When Christian Longo, the aforementioned death row inmate who detailed his attempt to donate his organs in a New York Times article, made a last appeal to prison authorities, they responded by saying, “The interests of the public and condemned inmates are best served by denying the petition” (Longo). This raises the issue of whether prison authorities have the right to decide what is in the best interest of the public and condemned inmates. The decisive answer of the prison authorities may have been an overextension of the scope of the prison authority’s power because U.S. legislation never explicitly prohibits prisoners from donating organs or declares that an inmate donating organs would not be in the best interest of the public or the prisoner. Regular citizens have the right to become organ donors. All they have to do is opt to place a pink sticker on their driver’s licenses. Prison inmates should retain the right to be organ donors because it would confer a major benefit on society by providing more organ transplants. For the past two decades, the majority of inmate donation requests have been denied, establishing a legal precedent against organ donation; however, there is still no official law. Longo asked other death row inmates if they would be willing to give informed consent to become organ donors and half of them said they would, demonstrating that the case of Longo is not an isolated incident. At least fourteen other inmates have attempted to donate their organs, but were all denied. If inmates such as Longo were permitted to donate organs, it is likely that other inmates would hear about the decision and choose to do the same. Relevant Stakeholders and Perspectives: In regard to the issue of inmates donating organs, there are three prominent stakeholders: the prisoners themselves, the organ recipients, and the general public. As previously discussed, prisoners benefit from donating their organs because it is a final act of moral contrition. The decision to be an organ donor is entirely voluntarily and organ transplant will be carried out post-mortem, so they will not be coerced into becoming donors for outside benefits such as a reduced sentence or special privileges. The second stakeholders are the organ recipients. Some people may be opposed to receiving an organ from a convicted killer; however, the majority of people on the Duke Lung Transplant Program’s active waitlist reported that they would be willing to accept an organ from an inmate, according to a study done by Lin. Even if one person rejected a prisoner’s organ, another would certainly accept it, nullifying the argument from repugnance toward convicted criminal’s organs. The inmate committed the crime, not the inmate’s organ. Most organ recipients recognize this distinction, value the life-giving benefits of the organ, and are happy to accept a life-saving organ. The third group of stakeholders is the general public. Caplan argues that organ “donation undercuts the morality of execution.” By this, he means that there is a potential for criminals to be lauded by the public in their last days if they opt to donate their organs. This would undermine the punitive purpose of capital punishment and mortify the families and friends of the victim. He claims criminals should be made to suffer and should never be viewed favorably in the public’s eye. In addition, the desire for public sympathy could influence an inmate to donate his organs. Caplan’s fear of inmate heroism through organ donation can easily be handled by making the donations anonymous (Lin). This would prevent a prison inmate from becoming a hero in society. In an opinion poll, conducted in conjunction with the story of Christian Longo, that asked “Should man who killed his wife and two children be allowed to donate his organs?” nearly 90% of 588 voters responded “yes” (Lin). Public opinion clearly finds death row inmates to be viable donors and supports allowing inmates to donate organs to patients in dire need of transplants. Legislative Context: Organ donation in the United States is governed by two documents—the National Transplant Act of 1984 and the Uniform Anatomical Gift Act. Neither act explicitly prohibits organ donation by death row inmates (Lin). In 1968, The Uniform Anatomical Gift Act provided a legal foundation upon which human organs and tissues could be donated if a person legally consented to donate his organs before death (Selected Statutory and Regulatory History of Organ Transplantation). According to this law, a prisoner should be able to donate his organs as long as he legally consents to do so before he dies. The National Transplant Act specifies that organ donation cannot be made for “valuable considerations,” such as money or a shorter prison sentence (Lin). This could pose an issue for living transplant donors, but is nullified in the case of death row inmates. There is no sound legislative document that explicitly condemns organ donation by death row inmates; therefore, legally, prisoners have the right to donate their organs as long as they are capable of giving informed consent. Opponents of inmate organ donation express concerns at possible changes in the legal system that could occur as a result of prisoner organ donation. They believe allowing death row inmates to donate organs would cause juries to look at defendants as not potential death row inmates but as potential organ donors. In an interview with Here and Now, Caplan addresses the concern that juries would be “quicker to offer the death penalty” if they thought it could “save” the “lives” of people on the organ transplant list. However, the option to donate organs does not guarantee that an inmate will choose to donate his organs. The decision to donate organs is entirely voluntary; therefore, prisoners are protected from juries using capital punishment as a way to procure organs. Overview of Pros and Cons and Ramifications: Ultimately, death row inmates should be permitted to donate their organs because it would save the lives of recipients, provide moral contrition for prisoners, and produce an overwhelming benefit that would outweigh the cost of coercion. Allowing death row inmates to donate their organs would help alleviate the dire need for more organ transplants. There are over 123,000 people on the organ transplant list and allowing death row inmates to donate would save the lives of a myriad of people who desperately need organ transplants. In addition, allowing inmates to donate organs would benefit the prisoners by allowing them to do one final act of good and experience moral atonement before they die. An element of coercion does exist in the organ transplant process because prisons are an innately coercive environment; however, safeguards such as education to ensure informed consent could be implemented to minimalize coerciveness. By restricting organ donation to death row inmates only, the coercive elements of living prisoner donation are avoided. Unlike general population prisoners who might hope to receive something in return for their organs, death row inmates have nothing to gain from donating their organs except moral contrition. Allowing death row inmates the opportunity to donate their organs is the right thing to do. The benefits of providing life-saving organs to recipients in dire need and providing moral atonement to prisoners outweigh the costs of coercion. No legislation exists that explicitly forbids death row inmates from donating organs; therefore, they should have the option to voluntarily consent to organ donation. Works CitedBellware, Kim. “Utah Governor Signs Law Reinstating Firing Squad As Backup Execution Method.” The Huffington Post, 2015. < .com/2015/03/23/utah-firing-squad_n_6927550.html>. Caplan, Arthur. “The Use of Prisoners as Sources of Organs—An Ethically Dubious Practice.” The American Journal of Bioethics, 2011. Vol. 11, Num. 10. <;."Death Row USA Population Figures." NAACP Legal Defense and Educational Fund,Inc, 1 Oct. 2014. Web. < 2014.pdf>.Ehrlich, Isaac. “The Deterrent Effect of Capital Punishment: A Question of Life and Death.” American Economic Review Vol. 65, No. 3 (June 1975), pp. 1-49. Print.“Lethal Injection.” Death Penalty Information Center, 2014. Web. <, Shu S. et al. “Prisoners on Death Row Should Be Accepted as Organ Donors.” The Annals of Thoracic Surgery 93.6 (2012): 1773–1779. PMC. Web. 30 Mar. 2015.<;. Longo, Christian. “Giving Life after Death Row.” New York Times, 2011. Web. <;.“Number of Executions by State and Region Since 1976.” Death Penalty Information Center, 2014. Web. < and-region-1976 >. O’Reilly, H. “Prisoner organ donation proposal worrisome.” AMA News, 2009. <, Nancy. “What It Means To Treat People as Ends-in-Themselves.” The American Journal of Bioethics, 2011. Vol 11. Iss. 10. Web. <;. “Selected Statutory and Regulatory History of Organ Transplantation.” Organ DonorGovernment Agency, 2015. Web. < /legislationhistory.html >. “Should A Death-Row Inmate Be Allowed to Donate Organs?” Here and Now, NPR. 15Nov. 2013. <, Nick. “Rehabilitation.” Encyclopedia of Criminal Justice. Web. 30 Mar. 2015. <;. “The Need is Real: Data.” Organ Donor Government Agency, 2015. Web. <;. ................
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