Transforming Scheduled Death Into Renewed Life One

Transforming Scheduled Death Into Renewed Life

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 and exploitations are prevented by the so-called dead donor rule. According to Robertson, "Although living persons donate kidneys, cadaveric donors are the main source of solid organs for transplantation. Yet cadaveric donations have never been sufficient to meet the needs of persons with end-stage organ disease. One factor among many that limits the availability of cadaveric organs is the dead donor rule -- the ethical and legal rule that requires that donors not be killed in order to obtain their organs" (6).

The debate over using the organs of executed criminals must differentiate between harvesting organs from executed inmates following their death by lethal injection, the electric chair (or more rarely, the firing squad) from acquiring their organs as an execution method (Robertson 6). According to this authority, "There is no ethical or legal objection to removing organs or tissue from executed bodies after death, if consent of the deceased or next of kin has been obtained. Although most methods of execution would render organs unacceptable for transplant, the unclaimed bodies of executed inmates are routinely given to medical schools for anatomical study" (Robertson 6). There are also no ethical proscriptions to death row inmates donating their organs to living recipients provided inmates freely consent to the donation; at present, Texas and a few other states with capital punishment laws on their books already allow live donations from condemned prisoners (Robertson 6).

The issue of executing death row inmates by harvesting their organs, though, represents an entirely different legal and ethical matter altogether. In this regard, Robertson advises, "To avoid the damaging effects on organs from execution by lethal injection, electrocution, hanging, gas, or firing squad, organ retrieval itself would become the method of execution. The condemned prisoner would request this method five to seven days before the execution date" (7). The procedures used for such an execution method would resemble current methods used for lethal injection, including the presence of family members, friends and other witnesses with the exception that once unconsciousness of the convicted inmate was attained, instead of a lethal mixture of drugs being administered, the inmate would be moved to an operating suite where a transplant team would harvest his or her organs, keeping the inmate alive through artificial means until the procedure was completed at which time they would be removed and death would quickly follow (Robertson 7). The time of death in such organ-harvesting procedures would be established as the time the lungs and heart were harvested or when artificial means of sustaining life were removed (Robertson 7). The harvested organs would be distributed according to established rules for distributing donated human organs (Robertson 7).

Although this approach would "kill two birds with one stone," it is also patently violative of the aforementioned dead donor rule. According to Robertson, "Retrieval of vital organs itself would be the cause of death because once heart, lungs, and liver are removed one would soon have to turn off the heart-lung bypass machines that are sustaining function during removal of vital organs. Physicians retrieving organs would thus also be executing the prisoner. For such a procedure to be acceptable, an exception to the dead donor rule in the case of executions would have to be recognized" (7).

The rationale in support of this approach is powerful, though, because although the final outcome remains unchanged (e.g., the condemned prisoner has been executed), numerous individuals on the wait-lists for organs would benefit in life-changing ways through the procedure. In this regard, Robertson emphasizes that, "The main argument for an exception in this case is that the prisoner will in any case be executed. An exception to the rule to permit a mode of execution that protects organs would not harm the prisoner or deprive him of continued life, and thus would not infringe or deny the core values underlying the dead donor rule. The state in any case will be executing the prisoner, and the exception would permit the state to kill another in a way that salvages his organs" (7). There is another positive, but more nebulous quality to an exception to the dead donor rule as well. According to Robertson, "In addition, an exception for execution by organ retrieval has the salutary effect of respecting and preserving the lives of recipients at the very moment that the condemned person's life is taken as punishment for his having previously taken the life of others" (7).

Proponents of allowing exceptions to the dead donor rule could facilitate its adoption by insisting that other conditions would be required to be satisfied to harvest organs in this fashion from condemned prisoners, including:

1. Organ retrieval executions might be permitted only at the request of the condemned prisoner made at a specified time in advance of the execution;

2. The permission of the victim's family might also be required;

3. Potential recipients would be free to reject organs from this source; and,

4. Most important, the inmate's request for execution by organ retrieval should not influence prior decisions about guilt and punishment, or later decisions for clemency (Robertson 7).

Critics of the death penalty itself, though, will probably not be swayed by the charitable act represented by the voluntary donations of condemned capital offenders, with death by organ harvesting being even worse in the minds of many observers than any of the currently used execution methods. Moreover, succeeding in gaining an exception to the dead donor rule would also require convincing critics that the program was worthwhile because enough death row inmates would voluntarily participate (Robertson 7).

Interestingly, there is also the potential for advocates of capital punishment to reject such a proposal because of the impact that such a process could have on the public perception of the death penalty in the first place. At present, just enough Americans appear to approve of the practice to keep it on the books in many states; however, if condemned prisoners are allowed to elect death by organ harvesting, this approval might wane in view of the humanitarian acts of the executed (Robertson 7). In addition, it is reasonable to expect that there would be opposition to execution by organ harvesting because of the provisions of the longstanding dead donor rule and the absolute separation of physicians from the act of execution (Curran and Casscells 226). To date, opposition to execution by organ harvesting have prevented any such exceptions to the dead donor rule, but Robertson suggests that many of the arguments that have been used in the past to oppose such an exception are misguided. According to Robertson, "The great aversion to an exception to the dead donor rule in the case of lawful executions is not adequately explained by the values underlying the dead donor rule. If state employees may legally kill a condemned criminal by drug, gas, or more violent means, it should not matter that execution occurs by removal of vital organs" (7).

Moreover, because the organ harvesting process would be entirely voluntary, this execution method would not be violative of the prisoner's constitutional rights concerning cruel or unusual punishments (Robertson 7). Nevertheless, there are some salient arguments against exceptions to the dead donor rule that have greater weight. At present, no physicians or nurses actively participate in the execution of prisoners; however, an exception to the dead donor rule would automatically mean that entire teams of transplant specialists and support staff would be required to participate in such an execution (Robertson 7). Although it is reasonable to suggest that such a cadre of medical personnel could be assembled who were willing to participate, modern medical ethical proscriptions prevent their doing so (Robertson 7).

Finally, arguments against allowing voluntary exceptions to the dead donor rule would likely have some unexpected consequences that would adversely affect organ donation in general. According to Robertson, there is a need to keep the execution of death row inmates separate and apart from other social institutions. In this regard, Robertson emphasizes that, "Interjecting transplantation into the controversy over capital punishment could taint public perceptions of the beneficence of transplantation. Members of the public might come to view organ procurement teams as 'killers' who harvest organs before or after death" (7). This view might have a chilling effect on the propensity of donors and members of their families to agree to such a procedure in the future (Robertson 7). In addition, some donor candidates might reject organ donations from executed criminals (Robertson 7). Despite these potential adverse outcomes that are associated with voluntary exceptions to the dead donor rule, the same arguments could not be made if execution by organ harvesting was legally mandated and the potential remedies discussed further below were incorporated in such an approach.

Potential Remedies

Given the potential for abuses of the forced donation of human organs by executed criminals, existing rules concerning the distribution of such harvested organs should be followed in any event and the only beneficiary should be the person receiving the organ, and organs should be given to only the next match on the wait list for organs. The rich and influential should not have an advantage over others (an aspect that was clearly demonstrated by the immensely popular and highly affluent humorist author Erma Bombeck who died waiting for an organ transplant). There would also have to be changes made to the ethical medical standards that currently prohibit doctors and nurses from actively participating in an execution. This could be achieved, perhaps, by having the same executioner who currently pushes the plungers on the lethal injection tubes or pulls the switch on the electric chair disconnect the ventilation and heart machines that have kept a prisoner alive during the organ harvesting process, thereby freeing the healthcare practitioners of this responsibility. This approach is already being used with non-heart-beating patients with the consent of their family members. In this regard, Valko reports that:

While most public information about organ donation emphasizes that organs can be taken only after "all efforts to save your life have been exhausted" and brain death has been determined, in the past decade a little-known innovation has been changing these rules. Now, organ donation can occur in a person who is not brain dead but whose relatives have agreed to withdraw a ventilator (a machine that supports or maintains breathing) and have the person's kidneys, liver or pancreas removed when the heartbeat stops. (108)

By any measure, though, these fundamental changes in the American legal and medical system would carry some significant ethical implications, and these are discussed further below.

Ethical Implications

Beyond the foregoing ethical issues associated with the forced organ donation of executed criminals, there is also the ethical implication of death row inmates that are later exonerated through newly discovered evidence such as DNA. To date, dozens of such convicted capital offenders have been released from death row through such processes. In fact, more than 130 condemned prisoners have been released from death row since 1973 based on newly discovered evidence that established their innocence (Innocence and the Death Penalty 2). In this regard, Bird points out that, "Critics of the death penalty cite the increasing number of convicted murderers on death row who have been exonerated and released from a system 'haunted by the demon of error' based on DNA and other factual evidence. They contend that the death penalty is no greater a deterrent than life imprisonment without parole, and that retribution cannot justify capital punishment, which is arbitrary and capricious -- and therefore immoral" (1329). If such exonerating evidence was discovered posthumously, there would be no change in the outcome of the sentence (after all, the individual would be dead in any event), but there would be some newly introduced legal issues concerning the forced disposition of the innocent individual's organs.