Death row and organ donation

[Impenitent]

A prisoner on death row wants to donate his organs - his kidneys to his sister who is suffering from kidney disease, and his heart to his mother who has a heart condition.

http://www.youtube.com/watch?v=KKrOmGiUHb0

This is a most unusual situation for organ donation, because his organs would have to be harvested while he is still alive, after which he would be executed. But...the process of donating his heart would kill him, yet his organs cannot be harvested after his execution, of course, as the chemicals would compromise them.

I find it an ethically difficult issue. I don't think I could condone taking the heart of a healthy, living person. (But then, I've never come to terms with the reality of the death penalty, either).

What do you think?

[JewelSong]

A prisoner on death row wants to donate his organs - his kidneys to his sister who is suffering from kidney disease, and his heart to his mother who has a heart condition.
...the process of donating his heart would kill him, yet his organs cannot be harvested after his execution, of course, as the chemicals would compromise them.

What do you think?

I wonder if he could opt for a different method of execution, that would not harm the organs. Beheading, for instance.

I know that sounds gruesome, but capital punishment IS gruesome, to my mind. Decapitation is surely as quick and painless as a chemical overdose.

There was an excellent sic-fi short story about organ banks in the future. All criminals sentenced to death were required to donate their organs. And, in order to meet the increasing demand for organs, the list of crimes punishable by death had grown. At the end, you find out that the protagonist has been convicted of running a red light.

ETA: It's called "The Jigsaw Man" and is part of Larry Niven's "Known Space" universe.
http://en.wikipedia.org/wiki/The_Jigsaw_Man

[elfshadow]

I know that sounds gruesome, but capital punishment IS gruesome, to my mind. Decapitation is surely as quick and painless as a chemical overdose.

I am strongly against capital punishment, but I always felt that if we were going to have the death penalty, we should use some method like hanging or beheading instead of lethal injection. Why try to hide the fact that a human being is going to be killed? If the idea of beheading someone as punishment makes one squeamish, then I think that says something about the idea of capital punishment in general.

Along the same lines, I think this prisoner should absolutely be allowed to donate his organs in the manner of his choosing. Again, if the idea makes people squeamish, perhaps they shouldn't be putting him to death.

[Nin]

My opposition to the death penalty is well known, I think. I have a correspondant on the deathrow in Texas.

Anyway: there are a few reasons for punishment: one of them is to protect the public from future harm - which can justify the death penalty, because of course a dead man will not commit any more crimes. Another is redemption - and this idea usually opposed the death penalty, because it takes all possibility of redemption from you. How can you repay your crime, redeem your crime if your life is taken from you? Redemption gives punishment a sens in the life of the offender. Protection gives a punishment a sense in the life of society.

It seems to me that the prisoner in question tries to reconcile those two aspects. Now, you could say that by donating his organs to his close family, his gesture of redemption, his gesture is not "pure" - but he still tries to give a sense to his life by giving a sense to his death - and even this is taken from him.

I think that a person is free to dispose of his own life in the way he or she wishes - thus if a person desires suicide in order to give his organs to someone, it is his right, even if he is a healthy, living person. Here, we have a person whose only possible gift can be his life. He cannot help his mother or drive his sister to dialysis - he only has his body left, it's the only leftover of his humanity. But - the right to dispose of his body as he wishes, even in death, is taken from him. One can argue that the crime for which he has been condemned justifies this loss of human rights. I think that not. So, I do think that he should be allowed to die the way he wishes and which makes the disposal of his organs possible.

The method of death penalty does not in any way change its inherent cruelty.

[Frelga]

Without going into the death penalty issue itself, why can't he donate one kidney now?

[nerdanel]

For me, the first practical issue that comes to mind here is: regardless of how the state/prosecution and inmate feel about this, wouldn't doctors be foreclosed as a matter of medical ethics from effectively executing the inmate by removing his heart? In general, doctors are forbidden by their field from participating in executions at all, apart from the passive task of declaring an executed inmate dead. I am having difficulty imagining doctors being permitted actually to become executioners harvesting organs from a live, healthy individual, however imminent that person's death of unnatural causes. elsha, does any of your coursework shed light on this?

[Primula Baggins]

That's what bothers me, too. Doctors do harvest beating hearts, but that's from people whose brains are dead and whose hearts are kept beating just so they can be used for transplant. IOW, the doctor is not killing anyone.

This is different. The transplant doctor didn't sign up to be an executioner. And there's the practical matter that all this has to happen before the scheduled moment of execution, which means that theoretically a prisoner might be dead when his stay finally arrived.

It's all ghastly.

The fact is, people die all the time of things that make their organs unusable (cancer, massive infection) despite their own strong wish to donate. There's no reason not to consider this another such case.

[Alatar]

There is. His life is being taken on purpose, and he has healthy organs that could be harvested before his life is taken. There's a world of difference.

[JewelSong]

His life is being taken on purpose, and he has healthy organs that could be harvested before his life is taken. .

I find the implications of that to be extremely disturbing.

But, I find the whole idea of the death penalty disturbing.

[Alatar]

Jewel, I'm not suggesting we should harvest organs from Death Row inmates as a matter of course. I'm saying that if a Death Row inmate, who is already sentenced to be executed (i.e. murdered by the state) chooses to donate his organs before that happens why on Earth should we want to stop him? Its somehow better that two innocent people die along with the accused because the State is suddenly squeamish about their method of murder?

[Jude]

It could set a precedent - if more death row inmates choose to do this, there's a possibility that a judge could find himself/herself more swayed to apply the death penalty, especially if there's a shortage of donated organs.

[JewelSong]

And, as Nel said...what doctor would remove a heart from a healthy person, thereby killing him? No doctor would do it. It is a clear violation of ther oath. So who would harvest the organs? Would we train people to be "organ harvesters?" Their job would be to remove organs from living people who were then going to be put to death?

My opinion has always been that if you are going to have the death penalty, carry the sentence out at high noon, and broadcast the death over every TV channel. And bring back the guillotine. Quick, sure and painless. And the organs would all be in perfect condition.

[Frelga]

Same problem, though, if a state changes the method of execution specifically to make harvesting organs possible. I am not a fan of the slippery slope argument, but I don't want to step on this one.

[elfshadow]

For me, the first practical issue that comes to mind here is: regardless of how the state/prosecution and inmate feel about this, wouldn't doctors be foreclosed as a matter of medical ethics from effectively executing the inmate by removing his heart? In general, doctors are forbidden by their field from participating in executions at all, apart from the passive task of declaring an executed inmate dead. I am having difficulty imagining doctors being permitted actually to become executioners harvesting organs from a live, healthy individual, however imminent that person's death of unnatural causes. elsha, does any of your coursework shed light on this?

You are correct in your reasoning, nel. As far as I am aware, no physician would ethically be allowed to remove someone's heart while they were still alive and not declared brain-dead. When organs are harvested from donors who are brain-dead, the members of the transplant team who remove the organs are not allowed to be involved in the declaration of death. But, no, the physician could not ethically take this prisoner's heart out before the declaration of death by a different doctor. This would be per the principle of non-maleficence, or "do no harm". One might find a physician who would do it, but they would probably lose their license and rightfully so.

(I go into some graphic detail in this next part, as a warning for those who might not care to read further.)

The method of execution would make a difference in the possibility of being able to remove his heart. There are three chemicals used in lethal injection, the last of which is a massive dose of potassium, which induces an arrhythmia that leads to cardiac arrest very quickly. This process would irreversibly damage the heart cells. The only way that organs can be harvested from a deceased person is in the case of severe trauma that does not damage the organ itself--usually some type of brain trauma. So, as Jewel stated, a method like beheading would allow for organ donation postmortem. I believe something like hanging would also leave viable organs, since it works by severing the spinal cord and inducing brain death. I do not think that any state's laws currently allow for the use of either of these two methods for execution.

[elfshadow]

And, as Nel said...what doctor would remove a heart from a healthy person, thereby killing him? No doctor would do it. It is a clear violation of ther oath. So who would harvest the organs? Would we train people to be "organ harvesters?" Their job would be to remove organs from living people who were then going to be put to death?

Since it takes a transplant surgeon a full fifteen years of training to become qualified (four years undergrad, four years medical school, five year surgical residency, two year transplant fellowship), this seems unlikely. I realize the point you are making, though.

[nerdanel]

Thanks, elsha. Now we move from your field to mine - at least, the field I have just departed (if anyone has questions about that sentence, PM or email).

One of the hottest issues in death penalty litigation at present is the lethal injection protocol to be used to execute death-sentenced defendants. You are referring to a three-drug protocol that was in use across all executing states until recently: sodium thiopental to sedate the inmate, pancuronium bromide to cause respiratory arrest, and potassium chloride (the drug elsha refers to) to stop the heart. As is clear from this thread and elsewhere, our European friends do not approve of the American death penalty, and having failed to halt it by diplomatic means, they sought years ago to cut off the supply of drugs used in executions. They first pressured American company Hospira to stop producing sodium thiopental, then cut off all European sources of the drug. (This combined with an American defender-led effort to challenge the three-drug protocol as violative of the Eighth Amendment, because there were concerns that sodium thiopental did not adequately sedate the inmate to allow the second two drugs to be administered without the infliction of unconstitutional pain, and that the inmate would not be able to communicate that pain in light of the paralytic effect of the second drug.)

Faced with this shortage, states mostly switched to a one-drug protocol, administering a massive overdose of (in most cases) pentobarbital, the same drug used to euthanize animals with terminal conditions. States which had enough sodium thiopental remaining also resorted to a one-drug protocol in which they administered a massive overdose of that drug to the same effect. The American courts have generally agreed that the one-drug protocol does not pose the same Eighth Amendment concerns as the three-drug protocol.

Our European friends then decided to cut off the states' supply of pentobarbital, which apparently comes largely from Europe (for me raising the question quite apart from death penalty issues, why on earth are Americans not able to produce their own, synthetically-simple drugs domestically?! I know that part of the answer is that American pharmaceutical companies want to stay far away from this death penalty debacle and are avoiding entering the commercial market for drugs that could potentially be used in executions if they are not already participants, but it still is puzzling.) None too deterred, our most passionate death penalty states promptly switched to a two-drug cocktail of midazolam and hydromorphone, which made its debut only a couple of months ago. Defense attorneys have argued that using this untested protocol on condemned clients is human experimentation, but the courts and prosecutors have been unmoved by this contention.

I am not sure if either the one-drug or the two-drug protocol changes your answer about the medical viability of organ harvesting, elsha?

Whether or not it does, if death-sentenced inmates were capable of choosing to (let alone required to) donate their organs, it seems to me that there is no way to prevent against this fact infecting all decisionmakers' consideration at the trial, appellate, and postconviction stages, particularly in cases where there is little or no doubt as to the defendants' guilt. For jurors, trial judges, and appellate judges, the consideration that someone whom (they believe) is guilty of horrendous acts could give their organs to save other lives - that something good could come from such tragedy - would at least in some cases be seductive reasoning, even if all decisionmakers were obligated not to consider this (and even assuming that judges would in good faith endeavor to set this consideration aside as legally inappropriate). Their awareness of this reality could still be problematic. How much more so would the clemency determination be poisoned - in deciding whether to grant clemency, the governor would be faced with political pressure not only to execute the (believed) guilty person, but to save innocent lives in so doing. Already it is politically devastating even to consider granting clemency in many cases; this would make it nearly impossible. In other words, the prospect of organ donation might shift the focus of the legal process away from the sole question presented in capital penalty phase litigation: whether, under clearly established federal law as interpreted by the United States Supreme Court and relevant state law, the condemned person was constitutionally sentenced to death.

One possibility to reduce these harms to the legal process would be that an inmate could make the decision to donate, or not to donate, his or her organs, but the decision would be privileged and disclosed only to his or her defense attorneys until after the appellate process had concluded and the governor's clemency decision was announced. I think, though, that this would reduce rather than eliminate the harm that the possibility of organ donation might pose to the inmate's prospects for legal relief to which he or she is actually entitled. That is, the decisionmakers might not know what the inmate's decision is or is likely to be, but they would know that there is a prospect that if denied relief, the inmate could elect to donate organs. The legal answer to questions in capital cases is rarely black and white. Usually it requires weighing of competing considerations, such as an assessment of whether an admitted constitutional error was prejudicial (which requires weighing of all the relevant circumstances of the trial). Given this, it is easy to see how an inappropriate consideration could creep, even inadvertently, into a weighing analysis.

One of the least-understood truths of the death penalty is how many people - how many generations of people - it invisibly affects, from the jurors compelled to decide whether a fellow citizen will live or die, to the pain of family members of both victims and defendants who endure a decades long legal process without any certainty as to outcome, to the attorneys and court staff and correctional officers and investigators and paralegals and other staff (hundreds per case over decades!) whose secondary trauma is real but so invisible in the societal conversation about the death penalty. (I know a court reporter who recently was the reporter for a capital trial. Exposure to the traumatic facts of the case and to the jury's life-or-death determination affected her so badly that she had to take a month off work afterwards and spend months in therapy.) Predictably, no one in this conversation has yet discussed the trauma to the doctors in this scenario who would be compelled to execute a living person, something that does not appear anywhere in their job description, is almost certainly something that they never intended to train for in choosing to attend medical school, and is not a normal part of the execution process. Of course, we must then acknowledge the trauma to the correctional officers for whom execution DOES appear in the job description and whose participation is a normal part of the execution process.

In general I am a huge supporter of organ donation, and I agree with Nin about each mentally competent person's entitlement to decide whether they will live or die through suicide (which brings us to another point: many people on death row are not mentally competent to make this decision, and the determination of the psychiatrists and courts who evaluate a defendant's competence might also be skewed by the prospect of organ harvesting.) But I think this does not lead clearly to the conclusion that death-sentenced inmates are entitled to decide they will donate their organs and thus direct how they will be executed (by organ harvesting) and by whom (doctors). The argument has utilitarian appeal (as Alatar points out) and implicates the inmates' personhood (as Nin points out). But there are countervailing considerations for both the courts and physicians to consider in making this decision.

[Primula Baggins]

Thank you, nel, for that detailed and extremely informative post.

I want to add a footnote from my own work. I'm editing an obstetrics book at the moment, and in a chapter discussing emergencies in labor, there was a regretful paragraph about the fact that sodium thiopental is no longer available, and detailing why. Sodium thiopental was the safest and most widely used drug for rapidly inducing anesthesia, which is necessary during sudden obstetric emergencies when the fetus has to be delivered by cesarean within a very few minutes—because the maternal blood supply has been cut off or because the mother herself has preeclampsia.

Nothing still available is as safe, as fast, or as effective, and the result is that mothers and babies are dying or suffering major injury who might have been saved. More collateral damage from the death penalty.

[Frelga]

Well, I do have to say that people who are trying to prevent death penalty at the cost of innocent lives are... misguided seems a bit mild a word.

[Dave_LF]

Yep. Especially since it has no chance of working. It's not as though there's a shortage of ways to kill people.

[yovargas]

Oh, nel...it's always so good to see you. The world could sure use a lot more folks like you.