Sunday, March 06, 2011
Will Organ Donation "Save" Death Row?
I just came across this fascinating oped in today's NYT by Christian Longo. Longo is on death row in Oregon, and as, he says, he is guilty of killing his wife and children. As an ostensibly contrite murderer, he is trying to make the best of his situation: he has abandoned his appeals and is trying to persuade prison officials in Oregon to allow him to donate his organs upon his execution. The officials, however, have said no.
The officials have invoked several rationales for denying his request so far. Among them: increased likelihood of diseased organs, safety, inability to give informed consent, etc. Longo, however, has an interesting website, and the site addresses these various concerns. Importantly, Longo is not the only person on death row who would like to volunteer his organs. Nonetheless, there are no protocols in place to allow this life-saving altruism to unfold.
Notwithstanding the substantial attention it receives, the death penalty itself is slowly dying in the United States as an imposed punishment. (So sayeth Columbia's Jeff Fagan at least, and it is a demise I welcome as a retributivist against the death penalty.) Nonetheless, I wonder whether the institution of the American death penalty would be "healthier" if death row inmates were permitted to donate their organs. If they were, my suspicion is that death penalty advocates would find a whole cluster of new supporters. Conversely, I worry that opponents of the death penalty will oppose organ donation efforts simply because it will politically imperil the demise of the death penalty. Perhaps these worries are misplaced, but I can't quite put them aside after reading Longo's eloquent oped and interesting website--which, by the way, raises its own many questions of how a death row inmate becomes a policy entrepreneur with a paypal account anyway, but that's a topic for another day.
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Why isn't concern that it would politically imperil the demise of the death penalty a valid reason to oppose it for opponents of the death penalty? As a moral question, it's not clear to me that a deep-seated conviction that the state should not use its coercive power to kill its citizens shouldn't trump the altruistic, life-saving gestures of its victims if the latter genuinely helps enable the former.
Posted by: Patrick | Mar 6, 2011 8:33:13 PM
I, too, was struck by the editorial. At least off the top of my head, I couldn't really think of any really good reason not to allow him to donate his organs. On a short-run analysis the benefit is a no-brainer: Longo is made happier, the recipient of the organs are obviously made better off, and the administrative burden is presumably minimal, certainly compared to other organ harvesting situations where the time and place of death is not known beforehand.
On a dynamic analysis, I actually guessed that the prison officials' rejection was motivated by precisely the opposite political calculation that you make. Political support for the death penalty relies partly on a picture of those condemned as remorseless barbarians; and altruistic organ donors don't quite fit that picture. Now, it is possible that people might start supporting the death penalty to create a de facto organ farm; but I think it is much less likely.
Posted by: TJ | Mar 6, 2011 10:39:58 PM
As an aside, Gallup's public opinion polls suggest to me that the death penalty is unlikely to be "dying." It's still quite popular, actually.
Posted by: Orin Kerr | Mar 7, 2011 1:39:59 AM
@Orin, you may well be right about the popular opinion of the dp, but I think Jeff's point is that the demise is occurring at the level of officials and actual imposition--perhaps those more familiar with its workings or its targets are more likely to be disenchanted with it.
Posted by: Dan Markel | Mar 7, 2011 10:24:02 AM
Longo makes some persuasive arguments, but I worry that the potential for organ donation by a death row inmate could influence a particular jury's decision whether to impose a death sentence or life in prison. For the jurors who could go either way, the possibility that the defendant would become an organ donor might make them more willing to impose capital punishment.
Posted by: David Orentlicher | Mar 7, 2011 5:22:35 PM
Readers who would like to explore this theme more deeply
are invited to visit a website called
ORGAN DONATION AFTER EXECUTION:
James Leonard Park, webmaster
Posted by: James Leonard Park | Apr 13, 2011 7:35:20 PM
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