by Kathyrn McIlroy, Associate Member, University of Cincinnati Law Review Vol. 91
On January 1, 2022, the incarcerated population within Massachusetts included 6,236 inmates, and the operational capacity of all Massachusetts’ institutions was roughly 9,500 persons.1Prison Population Trends 2021, Mass. Dep’t of Corr. (May 12, 2022), https://www.mass.gov/doc/prison-population-trends-2021/download [https://perma.cc/Z6BK-JWLX]. Of the 6,236 incarcerated individuals at that time, 6,035 were male, and 201 were female.2Id. Broken down by race and ethnicity, the largest percentage of the incarcerated population had a race or ethnicity of White (42%), Black (29%), or Hispanic (25%).3Id.
In the United States as a whole, there are over 100,000 people on the national organ transplant waiting list, with seventeen people dying each day while waiting for an organ transplant.4Organ Donation Statistics, Health Res. & Services Admin. (Mar. 2022), https://www.organdonor.gov/learn/organ-donation-statistics [https://perma.cc/NV8A-MPAQ]. In Massachusetts, over 4,500 people are on the waiting list for an organ transplant, and that roughly 28% of those people identify as Black, Hispanic, or Latino.5Steve LeBlanc, Organs in Exchange for Freedom? Bill Raises Ethical Concerns, AP News (Feb. 8, 2023), https://apnews.com/article/organ-donation-massachusetts-state-government-health-a11a7f93dd13ad018bbb1899dbb4623a [https://perma.cc/47WN-HSWP]. Minority communities are disproportionately impacted by organ and bone marrow shortages throughout the United States, with roughly two-thirds of White individuals on the waiting list finding a match and less than one-half of people of color on the waiting list finding a match.6Id.
Due to the statistics of these seemingly unrelated phenomena, some Massachusetts’ lawmakers are attempting to create a solution, although a peculiar one.7See background infra Part II. This article discusses a recently proposed Massachusetts bill that would allow prisoners to obtain early release in exchange for donating an organ or bone marrow.8H.D. 3822, 193rd Gen. Ct. (Mass. 2023). Upon the proposal of the bill, commentators throughout the United States began to weigh in on the ethical implications of such a system.9MIT Technology Review, A Massachusetts Bill Could Allow Prisoners to Swap Their Organs for Their Freedom, Univ. of Pa. Ctr. for Health Incentives & Behav. Econ. (Feb. 3, 2023), https://chibe.upenn.edu/news/mit-technology-review-a-massachusetts-bill-could-allow-prisoners-to-swap-their-organs-for-their-freedom/ [https://perma.cc/RU8B-42F3]. Further, legal questions have arisen as the federal government prohibits the transfer of human organs for value.1042 U.S.C. § 274e(a). Part II provides background on the Massachusetts bill. Part III discusses the ethical, legal, and moral implications associated with the bill. Finally, Part IV concludes by arguing that the bill, if enacted, would run afoul of the ethical standards set forth in the criminal justice system within the United States by crossing the line between incentive and coercion.
On January 20, 2023, Massachusetts Representatives Carlos González and Judith A. Garcia presented to the Senate and House of Representatives of the Commonwealth of Massachusetts “An Act to establish the Massachusetts incarcerated individual bone marrow and organ donation program.”11H.D. 3822, 193rd Gen. Ct. (Mass. 2023). Representatives Bud L. Williams and Russell E. Holmes subsequently joined in the petition as well.12Id. If enacted, the Bone Marrow and Organ Donation Program (“Program”) would allow “eligible incarcerated individuals to gain not less than 60 and not more than 365 day reduction in the length of their committed sentence . . . on the condition that the incarcerated individual has donated bone marrow or organ(s).”13Id. Further, the bill would create a Bone Marrow and Organ Donation Committee consisting of five members to oversee the implementation of the Program.14Id. The proposed bill concludes by stating, “[t]here shall be no commission or monetary payments to be made to the Department of Correction for bone marrow donated by incarcerated individuals.”15Id.
Representative González, upon pushback from prisoner advocates arguing that incarcerated people could feel pressured to participate in the Program to obtain their freedom, reasoned that the purpose of the Program would be to increase the likelihood that Black and Latino individuals waiting for an organ or bone marrow donation would find a match.16Sarah Betancourt, A Bill That Would Let Prisoners Trade Organs for a Reduced Sentence Faces Significant Blowback, GBH News (Feb. 2, 2023), https://www.wgbh.org/news/local-news/2023/02/02/a-bill-that-would-let-prisoners-trade-organs-for-a-reduced-sentence-faces-significant-blowback [https://perma.cc/9XF3-5EUC]. In a Twitter post, Representative Garcia stated that “BIPOC [Black, Indigenous, and people of color] in [Massachusetts] receive lower quality treatment than white peers” and that the Program would “expand mass health access and quality of care” and “restore bodily autonomy to incarcerated folks by providing opportunity to donate organs [and] bone marrow.”17@GarciaJudithMA, Twitter (Jan. 27, 2023, 4:17 PM), https://twitter.com/GarciaJudithMA/status/1619082301400571905?s=20&t=OWzQUY5r09BpZabgHIsq4g, [https://perma.cc/EZ92-WMVE].
In the United States, federal law prohibits anyone from knowingly participating in a transfer of any human organ for value if the transfer impacts interstate commerce, and a violation of this law carries a maximum sentence of five years in prison or up to a $50,000 fine.1842 U.S.C. §§ 274e(a)-(b). While Representative González states that there is no law against organ donations made by prison inmates,19Betancourt, supra note 16. critics argue that early release from prison is substantially equal to compensation and amounts to exploitation of prisoners.20LeBlanc, supra note 5. The proposed bill, however, does indicate that the Department of Correction will not receive payments for any organ transfers conducted, but the bill is silent on payments to prisoners.21H.D. 3822, 193rd Gen. Ct. (Mass. 2023).
In the federal system, prisoners can donate organs if they choose, but only when the person receiving the organ is a family member of the prisoner, and there is no reduced sentence involved in the exchange.22LeBlanc, supra note 5. A program such as that proposed in Massachusetts has been considered before. For example, in 2007, South Carolina sought to create a similar system, but upon pushback, instead just allowed for voluntary donations rather than donations in exchange for early release.23Id. Similarly, the proposed Program, despite efforts by its advocates in the Massachusetts legislature, has faced pushback on numerous fronts.24Id.
Of the various critiques of the Massachusetts bill, the most prominent is the ethical implications that the Program would harbor.25MIT Technology Review, supra note 9. Namely, going through the process of donating an organ or bone marrow, while selfless and admirable in many ways, can be extremely risky and distressing for the person donating.26Id. A person choosing to donate either an organ or bone marrow must be aware of these risks, and it is questionable that an incarcerated individual has the requisite autonomy and freedom to make such a decision in the first place.27Id. Further, by nature, an incarcerated individual does not have the freedom and autonomy of an individual not incarcerated; thus, in order to obtain more freedom and autonomy, an incarcerated individual might feel compelled to participate in the Program and assume the many risks associated with transplant in a manner that is inconsistent with the process that non-incarcerated individuals consider.28Id.
Additionally, the bill’s sponsors contend that the Program would serve as an incentive for those incarcerated to garner earlier days of freedom,29Id. yet critics point out that the Program is actually coercive as incarcerated individuals are seemingly being used as pawns to decrease the number of people on the donation waiting list.30LeBlanc, supra note 5. While decreasing that number is a positive outcome, and the potential result of less incarcerated people in Massachusetts is also positive, this does not seem to be the best means to either end.31Id. While discriminatory incarceration rates do decrease the chances of minorities receiving a donation match, the solution should not be to put incarcerated individuals in a position where they have to weigh their freedom against the risks associated with organ or bone marrow donation.32Id.
The Program might also be in violation of the federal law that prohibits the transfer of an organ for value.33Id. The reduction of a prison sentence could be the equivalent of payment, especially when considering the conditions under which the incarcerated person would be living under if they continue in prison for the remainder of their sentence rather than electing to donate.34MIT Technology Review, supra note 9. This raises another question of how much “better” the incarcerated person’s life would be outside of prison for those extra 60 to 365 days that are granted.35Id. For example, the recovery time for an organ or bone marrow donation might be longer than the number of days that are removed from the sentence.36Id. Further, questions remain as to how the Program Committee will determine how much each donation is “worth” in terms of sentence reduction.37Id. Is an organ worth more than bone marrow, and how much is either worth to begin with?38Id. Overall, the ethical, legal, and even moral, implications of this Massachusetts bill have not been sufficiently justified by the bill’s proponents.39See background infra Part II.
The purported goal of the Program is praiseworthy: to decrease the number of people on the bone marrow and organ donation waiting list in Massachusetts while also eliminating the discrepancies between the abilities of White individuals and minorities to find matches.40Betancourt, supra note 16. However, the system of granting early release from prison if an incarcerated individual donates either bone marrow or an organ blurs the line between incentive and coercion too much for the Program to align with ethical standards.41See discussion infra Part III. The Program would take away even more autonomy and freedom from incarcerated individuals than has already been taken from them, despite the bill’s efforts to achieve the opposite.42Id. Overall, the desired end goal of the Program is admirable and deserves attention, but the means should come from somewhere other than through a knife in an incarcerated individual’s body.43Id.
- 1Prison Population Trends 2021, Mass. Dep’t of Corr. (May 12, 2022), https://www.mass.gov/doc/prison-population-trends-2021/download [https://perma.cc/Z6BK-JWLX].
- 4Organ Donation Statistics, Health Res. & Services Admin. (Mar. 2022), https://www.organdonor.gov/learn/organ-donation-statistics [https://perma.cc/NV8A-MPAQ].
- 5Steve LeBlanc, Organs in Exchange for Freedom? Bill Raises Ethical Concerns, AP News (Feb. 8, 2023), https://apnews.com/article/organ-donation-massachusetts-state-government-health-a11a7f93dd13ad018bbb1899dbb4623a [https://perma.cc/47WN-HSWP].
- 7See background infra Part II.
- 8H.D. 3822, 193rd Gen. Ct. (Mass. 2023).
- 9MIT Technology Review, A Massachusetts Bill Could Allow Prisoners to Swap Their Organs for Their Freedom, Univ. of Pa. Ctr. for Health Incentives & Behav. Econ. (Feb. 3, 2023), https://chibe.upenn.edu/news/mit-technology-review-a-massachusetts-bill-could-allow-prisoners-to-swap-their-organs-for-their-freedom/ [https://perma.cc/RU8B-42F3].
- 1042 U.S.C. § 274e(a).
- 11H.D. 3822, 193rd Gen. Ct. (Mass. 2023).
- 16Sarah Betancourt, A Bill That Would Let Prisoners Trade Organs for a Reduced Sentence Faces Significant Blowback, GBH News (Feb. 2, 2023), https://www.wgbh.org/news/local-news/2023/02/02/a-bill-that-would-let-prisoners-trade-organs-for-a-reduced-sentence-faces-significant-blowback [https://perma.cc/9XF3-5EUC].
- 17@GarciaJudithMA, Twitter (Jan. 27, 2023, 4:17 PM), https://twitter.com/GarciaJudithMA/status/1619082301400571905?s=20&t=OWzQUY5r09BpZabgHIsq4g, [https://perma.cc/EZ92-WMVE].
- 1842 U.S.C. §§ 274e(a)-(b).
- 19Betancourt, supra note 16.
- 20LeBlanc, supra note 5.
- 21H.D. 3822, 193rd Gen. Ct. (Mass. 2023).
- 22LeBlanc, supra note 5.
- 25MIT Technology Review, supra note 9.
- 30LeBlanc, supra note 5.
- 34MIT Technology Review, supra note 9.
- 39See background infra Part II.
- 40Betancourt, supra note 16.
- 41See discussion infra Part III.