By S. Van McCrary, Health Law & Policy Institute
An unusual bill recently introduced in the Missouri Legislature would establish a program allowing some condemned prisoners to become organ donors and thereby reduce their sentences to life in prison without possibility of parole. House Bill 1670, introduced on February 4, 1998, provides that inmates, in addition to agreeing to donate one kidney or bone marrow for transplant purposes, would agree to give up all rights to appeal their convictions and would have to pass a physical examination proving they are medically qualified to donate. The bill would also permit courts to consider testimony of victims before admitting an inmate to the program. Under the proposed bill, Missouri residents would have priority to receive any organs donated through the program.
The coercive nature of the bill's provisions have been rightly decried by numerous medical ethicists and attacked in the editorial pages of the St. Louis Post-Dispatch. However, some persons have argued that each case in which the proposed law operated would save two lives--those of the organ recipient and the inmate who had committed murder. Thus, the program has been named "Life for a Life."
In addition to the legitimate ethical objections to such a program, the bill as written contains serious legal and policy flaws. Most prominent among these problems is that only inmates sufficiently healthy to donate organs could qualify for the program. Such differential application of the death penalty, according to physical characteristics over which the inmate has no control, arguably would violate the "equal protection" clause of the Fourteenth Amendment to the Constitution of the United States. Proponents of the bill should also consider the possible effects of such a law on jury deliberations in the sentencing phase of trials--for example, would such a program encourage juries to sentence more persons to death in order to increase the available supply of organs? The provision of the bill awarding priority for receiving donated organs to Missouri residents also runs counter to current policies under which available organs are distributed on a nationwide basis according to medical criteria of the potential recipients. To impose such a regional preference on particular, identifiable donated organs could damage the purported objectivity of the organ distribution system. It appears generally contrary to good public policy to intermingle the volatile political issue of capital punishment with that of organ donation. Passage of this bill would epitomize the salience of the old adage that with every law that passes another law is also passed--the law of unintended consequences.