Your liver or your liberty? Choose one.
This is the proposition that a bill in the Massachusetts House of Representatives puts to people locked up in the commonwealth: Donate bone marrow or an organ or two, says HD 3822, and the Department of Correction will cut 60 to 365 days off your sentence. The bill is sponsored by four Democrats.
Everything is wrong with this proposal except its intentions: to shorten transplant waiting lists and reduce state prison populations. Or so I assume. The 370-word text does little more than establish a Bone Marrow and Organ Donation Program within the Department of Correction and a committee to work out the details. There is not even a perfunctory assurance of informed consent. With any luck, the bill will flutter to the bottom of some committee’s docket.
But HD 3822 is more than a piece of legislative slapdashery. It hints at the ways policymakers think about people and bodies and the calculus that determines which bodies deserve respect and care and which do not.
Legislators of both parties have deemed an organs-for-time swap a win-win. The sponsors of HD 3822, all legislators of color who have supported health equity and prison reform, told CBS Boston they were concerned with the shortage of donors of color compared with the preponderance of people of color waiting for organs (matching racial or ethnic backgrounds can improve the success of an organ or bone marrow transplant). They also said the program would “restore bodily autonomy to incarcerated folks.”
Conservatives like the trade-off for their own reasons. In January 2011, then-Mississippi Republican Gov. Haley Barbour released (but did not pardon) two sisters serving life sentences for an $11 armed robbery, on the condition that one donate a kidney to the other. Barbour was apparently not troubled by the disproportionality of the sentence, the sisters’ protestations of innocence, or the NAACP campaign to free them. He was moved by other concerns: The ill sister’s dialysis was costing the state $200,000 a year.
Politicians may warm to the Massachusetts bill. But it’s hard to find an ethicist to defend it. Franklin G. Miller, a retired bioethicist at the National Institutes of Health writing in the Hastings Center’s Bioethics Forum, is one (maybe the one) who tries. But even applying maximum sophistry — the “important … distinction between taking advantage of unfairness (or misfortune) and taking unfair advantage of unfairness (or misfortune)” — he musters only tepid approval.
More representative is the opinion of Brendan Parent, director of transplant ethics and policy research at the NYU Grossman School of Medicine. “My initial reaction?” he said in an interview. “The road to hell is paved with good intentions.”
The idea of reducing the organ shortage — currently over 100,000 patients are waiting for transplants in the U.S. — with the body parts of the incarcerated has been considered before, as far back as the 1990s. Much of the debate has circled around the cadavers of the executed. Some doctors have argued in favor. So have some condemned prisoners.
In 2011, for instance, an Oregon man sentenced to death for murdering his family petitioned the state to allow him to donate his organs. After the request was denied, the man wrote a New York Times op-ed. “I am seeking nothing but the right to determine what happens to my body once the state has carried out its sentence,” he said. Polling the 35 other men on death row, he found that almost half would do the same.
Last year, a Texas death row inmate asked to have his execution stayed long enough to make a living donation of his kidneys. Because of a rare blood type, he was a coveted donor, and the matched recipient wrote Gov. Greg Abbott pleading her case. But the state’s criminal justice department, true to its mission, declined. The procedure would be too expensive, it said, and might delay “the court-ordered execution date.”
For ethicists, mixing state-sanctioned murder with state-aided preservation of life confounds both questions. On one hand, the social benefit of organ donation might lend legitimacy to the death penalty; the ethics committee of the Organ Procurement and Transplantation Network suggests that judges or juries could be inspired to sentence more people to death. On the other, notes ethicist Arthur Caplan, proponents of the death penalty could argue that the good deed and good press might undermine the retributive aim of capital punishment by heroizing people who’ve committed heinous crimes. It is hard not to infer this attitude from the authorities’ refusal of these last requests: “Don’t come begging us for redemption, bud.”
There are logistical snags too. Just one: Lethal injection can contaminate the tissue. A lower-tech method of execution might be the solution. In 1977, murderer Gary Gilmore donated his eyes, kidneys, liver, and pituitary gland to medicine before facing a Utah firing squad. Only the kidneys were too perforated to salvage.
Fortunately for those interested in incarcerated people as a source of organs, there is a much larger pool: the nearly 2 million people incarcerated in U.S. prisons, jails, immigrant detention, military prisons, civil commitment facilities, and state psychiatric hospitals. How many kidneys and livers (the most common live donations) might be gleaned from these bodies?
The paramount issue is coercion. Prison is a coercive institution. Its surveillance is panoptic and its regimentation complete. At the same time, its punishments and rewards are meted out irrationally by those in power, and extralegal threats, bribery, and every form of barter both beneficent and nefarious pervade its culture. Would a parole board look kindly on an organ donor years down the road? Would there be retribution against someone who opted out? How is any prisoner to know?
“Organ donation is a unique area of medicine where one person signs up to take a risk, and the clinician imposes that risk, for the benefit of another person,” says Parent. Before taking what could be a fatal decision, several criteria must be met. “First, there has to be a strong justification.” Saving lives that can be saved no other way is such a justification.
“The person who is agreeing to the risk must have full autonomy,” he continues. “Autonomy requires the ability to rationally consider the options in light of one’s values and make a decision free from undue influence.” That influence does not come solely in the form of coercion. Ethicists also want to rule out “undue inducement,” an incentive so great that a person feels compelled to do something they otherwise would not do — an offer they can’t refuse. Says Parent: “I cannot imagine any person in prison having the ability to rationally consider these risks in comparison to the possibility of a reduced sentence.”
The risks are not trivial: major surgery, unforeseen complications immediately or down the road. What if the donor’s one remaining kidney fails? The odds aren’t good that he’d get a transplant organ. Nor, for that matter, are the odds good that a given incarcerated person will be cleared to donate one.
Prisoners are sicker than the rest of the population. Health care behind bars is almost universally execrable. It makes the sick sicker. The conditions that lead to failure of the kidneys, liver, or heart — diabetes, hypertension, heart disease, hepatitis C, untreated HIV — are more prevalent among the poor and people of color, and even more prevalent than that among the incarcerated, who are disproportionately poor and of color. Of the 100,000 people on transplant waiting lists, over 60 percent are ethnic and racial minorities.
But the same health problems that put people on waiting lists for organs also reduce their likelihood of surviving — and thus being approved for — a transplant. And those same factors weigh against their qualifying to donate an organ or coming through the procedure in decent shape. In Mississippi, that sister-to-sister kidney transplant never happened. Doctors deemed the healthier sister too obese to donate safely. The “net transplant benefit calculation” is one of the metrics of triage that penalize the victims of racist health care policies and generational trauma for the damage inflicted on their bodies.
Although the prison doctors would not perform the surgery on either end (only specialized hospital units do that), the donor would be back in his cell within days. And any Massachusetts inmate contemplating organ donation has scant reason to expect the Department of Correction to ensure post-op health. The state’s prison health services contractor is Wellpath Recovery Solutions, formerly Correct Care Solutions, the largest and one of the worst actors in the field. Owned by the private equity firm HIG Capital, with $1.7 billion in revenue annually, “Wellpath continues to be mired in regulatory and reputational risk related to conditions that have endangered and harmed inmates under its care,” according to a November 2022 report by Michael Fenne at the Private Equity Stakeholder Project. Wellpath has not responded to Fenne’s report.
By 2018, nearly 1,400 federal lawsuits had been filed against Correct Care Solutions and companies it acquired, according to the Project on Government Oversight. The company’s practices were linked to 70 inmate deaths between 2014 and 2018 — with more suits in numerous states since. Last year, the Disability Law Center in Massachusetts found evidence of Wellpath’s excessive use of solitary confinement and drugs as “chemical restraints” for patients at Bridgewater State Hospital correctional facility, as well as neglect of people with disabilities at two state prisons during the pandemic. While the state Department of Correction disputed DLC’s findings, in December 2022 it signed a decree from the federal government specifying staffing, training, and treatment of prisoners in mental health crises.
The Massachusetts abolitionist organization DeeperThanWater Coalition has collected testimony on severe medical mistreatment and neglect by Wellpath at the state’s prisons, sometimes ending in death. Both DLC and DeeperThanWater have called on the state not to renew the company’s contract when it expires this June. But at the time of this writing, Massachusetts has posted no request for bids.
I personally find the deal on the table in the Massachusetts bill — two to 12 months for a slice of your living body — a not-due-enough inducement. But then I am not living in a cage. Still, whatever price a given incarcerated person might find fair, including none, the bill induces them, and the bright-blue commonwealth of Massachusetts, to consider the trade-in value of a secondhand kidney.
Call it utilitarianism, neoliberalism, or enlightened self-interest, HD 3822 reveals that the commodification of everything seems reasonable to pretty much everyone.
It also suggests that the bodies of the incarcerated are cheap. Every discussion of organs-for-time that I have read begins with the lives — 17 a day — lost to the transplant organ shortage. None mentions the waste of life that begins 600,000 times a year — an average of more than 1,600 a day — when the prison gates slam behind another new inmate somewhere in the U.S. In Massachusetts — a comparatively progressive incarcerator in a nation where the bar is so low a weasel couldn’t squeeze under it — the lives of the incarcerated are so negligible that the “health care” provider can kill its patients and (apparently) not be penalized by so much as a review of its contract.
The proposed swap may be illegal anyway. The National Organ Transplant Act prohibits organ donation in return for “valuable consideration,” which includes nonmonetary reward. Except for some biological materials including eggs, sperm, and entire corpses, body parts must be donated without recompense. The Federal Bureau of Prisons allows inmates to donate organs to family members. But the sole motive must be altruism. For this reason, when a bill similar to Massachusetts’s was enacted into law in South Carolina in 2007, the quid pro quo was stripped out.
It creates an opportunity for selflessness superintended by an administration that takes every opportunity to diminish the selves of its subjects.
Even without the inducement, however, HD 3822 would create a policy that is both unworkable and unintentionally cruel. It preconditions participation on free will and bodily autonomy inside an institution whose purpose is to seize freedom and control bodies and minds. It creates an opportunity for selflessness superintended by an administration that takes every opportunity to diminish the selves of its subjects. That the bill’s authors believe it would restore bodily autonomy to incarcerated people is, at the least, clueless.
The incarcerated are hardly incapable of altruism. It is a testament to moral resilience — and resistance — that in places where mutual aid is not just discouraged but also potentially dangerous, kindness lives. But demanding altruism and also a pound of flesh in return for your stolen liberty is extortion. If, that is, you’re cleared to hand over the flesh.
The United Network for Organ Sharing ethics committee “opposes any strategy or proposed statute regarding organ donation from condemned prisoners until all of the potential ethical concerns have been satisfactorily addressed.”
But these ethical concerns cannot be satisfactorily addressed within the carceral system because carceral values are the antithesis of medical ethics, or any ethics. Medicine pledges to do no harm. Prison is designed to harm.