One of the harsh realities of living in an otherwise-free society is the fact that the United States incarcerates far more of its citizens than other leading industrialized nations, and it one of the few countries in the world that retains the death penalty on its books. When capital offenders are executed, there exists the opportunity to turn this scheduled death into renewed through organ donations. At present, while an individual has the right to say whether their organs should be donated, death-row inmates are considered wards of the state and it is the position of this study that the state should have the corresponding right to harvest their organs as a means of execution in order to save and improve the quality of the lives of others. To determine whether the potential exists for such an approach, this study examines the relevant peer-reviewed and scholarly literature concerning organ donations in general and what steps would have to be taken to harvest organs from executed capital offenders including the legal and economic implications. An examination of potential exploitations and abuses of such an approach is followed by a discussion of potential offsetting remedies, the changes that would be required for the execution method from current practices, and the ethical implications involved. Finally, a series of recommendations is followed by a summary of the research and important findings in the conclusion.
Death Row Inmates Should Forfeit Rights to Determine Disposition of their Remains
Death row inmates by definition have been convicted of committing a capital crime and are therefore are subject to the harshest penalties available under the law. According to Black's Law Dictionary, the death penalty is the "supreme penalty enacted as punishment for murder and other capital crimes, the penalty has been held to not be under all circumstances cruel and unusual punishment within prohibitions of the Eighth and Fourteenth Amendments" (400). Not surprisingly the debate over capital punishment is ready emotionally charged. For instance, according to Bird, "Rhetoric piles high on both sides of the political debate regarding the place capital punishment should or should not have in twenty-first century America" (1329). Moreover, some organizations such as Amnesty International have come down hard in their condemnation of the use of the death penalty:
The death penalty is the ultimate denial of human rights. It is the premeditated and cold-blooded killing of a human being by the state. This cruel, inhuman and degrading punishment is done in the name of justice. It violates the right to life as proclaimed in the Universal Declaration of Human Rights. Amnesty International opposes the death penalty in all cases without exception regardless of the nature of the crime, the characteristics of the offender, or the method used by the state to kill the prisoner. (Abolish the Death Penalty 2)
Notwithstanding these objections to the practice, the fact remains that a majority of the state in the United States retain capital punishment on their books and it is reasonable to suggest that the laws will remain unchanged in most of these states for the foreseeable future. Although death row inmates are subject to the "supreme penalty" for their acts, they do not automatically forfeit the right to the disposition of their body following their execution, a constraint that remains firmly in place despite the growing demand for healthy organs. In fact, the demand for more human organs has increased significantly in recent years as the result improvements in medical procedures and demonstrated survival rates.
Around the world, organ transplants have become an important medical alternative to the problems that are associated with end-stage organ failure; therefore, the obvious medical solution to end-state organ failure is organ transplantation. For instance, according to Jensen, "Over the years, the success rates of these transplants have significantly improved, providing the critically ill with a chance for a new life. Medical science has developed immunosuppressant drugs which greatly increase compatibility between donated organs and their recipients. Other advancements include preservation techniques that extend organ life outside of the donor's body, more effective recipient registries, and increases in capable transplant teams" (555).
The current list for heart transplants shows that there are around 3,000 candidates waiting for suitable organs (Overall current U.S. waiting list by organ 2); however, just fewer than 1,000 hearts were donated and feasible for transplantation (Donors recovered in the U.S. By donor type 2). According to Morley, "Every year, the number of organ transplants from living donors continues to increase. Between 1988 and 2000, close to 140,000 kidney transplants were conducted; over 41,000 of these procedures involved kidneys from living donors. During the same period, over 46,000 liver transplants occurred, with over 1000 involving donations from live donors. Since 1987, between 60,000 and 70,000 bone marrow transplants were made possible by living donation" (1215). The Organ Procurement and Transplantation Network (OPTN) report, though, that just 2,220 hearts suitable for transplantation were available in 2005 as a result of accidents, fatal medical conditions, or other diseases and conditions (Donors recovered in the U.S. By donor type, 2009). In 1997, 25% of organ transplants were harvested following fatal traffic accidents (Healy 3). On the one hand, if everyone who died of a traffic accident, or even a significantly larger percentage of these victims became voluntary organ donors, there would be no shortage of organs; however, on the other hand, existing supplies of donated hearts that are suitable for transplantation represents just 30% of the demand on the wait-list (Healy 3).
Consequently, in order for organ transplantation to be a practical solution to organ failure, the supply of organs must satisfy the demand. Furthermore, time is of the absolute essence in acquiring suitable organs for transplantation purposes. First, organs must be harvested while they are still suitable for transplantation purposes. In this regard, Valko emphasizes that, "When organ transplantation was first attempted, organs were taken from people who had recently died. These organs usually failed, however, because they had deteriorated too much during the dying process" (107). Second, organs must be acquired in time to save the lives of those on the wait-lists for such organs. For instance, according to Beard, Kaserman and Saba (2004), less than half the waiting list of nearly 85,000 transplant candidates in 2004 were expected "to live long enough to receive the needed organs because the expected waiting times are now beginning to stretch into years" (13).
Moreover, Statz (2006) points out that there is only one way to obtain human organs legally at present and that is through donation, with the only two countries in the world where the sale of human organs is legal being Iran and Pakistan (1677). Because their deaths are scheduled for a time and date certain, convicted capital offenders make highly desirable candidates for organ donation since medical teams can be ready to harvest their organs while they are still healthy but forcing someone to donate their organs -- even if they are a death row inmate -- is currently not possible for the reasons discussed further below.
Legal and Economic Implications
There are some formidable legal obstacles to the solution envisioned herein. After all, convicted capital offenders are wards of the state, but they are not the state's property -- and there is a big difference. Prisoners are allowed to practice the religion of their choice while incarcerated, for instance, and although most mainstream religions in the West do not oppose organ donation, some religions practiced by convicted capital offenders may prohibit or discourage the donation of organs (Cooper and Taylor 5). Moreover, under certain circumstances, prisoners are allowed to refuse medications even if they are in their best interests, for example, and the state does currently possess the right to dictate the disposition of a capital offender's mortal remains beyond those provisions stipulated by controlling legislation concerning proper burial in a pauper's grave at state expense if no next-of-kin claim the executed offender's body (Howell and Sale 511).
In addition, implementing measures to allow execution by organ harvesting would require sophisticated operating facilities and many prison hospitals are currently inadequate for these purposes (Robertson 6). During an era of dwindling state budgets for prison systems in general, making the case for the expenditure of significant monies to install a modern operating suite strictly for the purpose of harvesting organs would be enormously difficult. There would therefore be some profound legal and economic implications associated with overcoming the legal hurdles to compelling executed criminals to donate their organs no matter how altruistic the purpose and outcome of such a program might be.
Potential Abuses and Exploitations
It does not require too much of a stretch of the imagination to picture the potential abuses and exploitations that might result from the forced harvesting of organs from executed criminals. A prosecutor or judge in a capital offense case, for example, might well have a loved one on a wait-list -- or they may be candidates on a wait-list themselves. At present, such abuses…