Live-Donor Transplants: A Real Prisoner’s Dilemma

You may have seen in the news recently the story of Jamie and Gladys Scott, two sisters in Mississippi serving a life prison sentence for armed robbery.    Jamie requires dialysis, and has been offered parole on medical grounds; Gladys has been granted parole on condition that she agree to donate a kidney to her sister.  (The Guardian covers the story here; CNN’s account is here.  The sentence seems to me to be very harsh given the crime, but that’s nothing more than a by-the-way.)

Over at Practical Ethics, Michelle Hutchinson wonders whether there’s a morally significant difference between this kind of transaction and common-or-garden organ-selling, and concludes that there isn’t.  Since the latter is forbidden by US law, it then ought to follow that donation in return for freedom ought not to be allowed either.  She also points out that

[a]llowing people to offer money in exchange for organs is often thought to be potentially coercive.  A person might be offered so much money that they feel they could not refuse, particularly if they were very poor.  The reason the person would feel they were unable to refuse would presumably be that gaining the money would be such a great improvement in their life.  Getting out of jail now, rather than in four years time, and being able to spend those four years free and with your family, is a very great improvement in a person’s life.  Therefore, if offering a person money could be coercive, it seems plausible that offering a prisoner parole could be coercive.

This seems to be pretty much correct.  There’s another twist we could add to this, too.  For normal people who’re considering being living organ donors for a sibling, there could easily be at least some kind of coercive pressure to donate to family members just because, rightly or wrongly, we tend to think that one ought to do things for family that there is no obligation to do for non-family.  But, for people on the outside, if there is an obligation to donate, that’s all there is.  Gladys is in a slightly different position.  As Muireann Quigley hints in a response to Michelle’s blog post, Gladys seems to have not only a moral reason to do the right thing (assuming, arguendo, that it is the right thing), but also an incentive to be “hyperbolically” good: she has a reason to demonstrate that she is not just a bog-standard decent person, but more than that.  After all, someone who is imprisoned and subsequently behaves exactly as one might expect while in prison has no reason to suppose that that’ll make a difference to his term, just because his tariff is built around the expectation that he’ll behave as expected.  To generate a reason to reduce his tariff, he has to behave in a way better than expected.  This applies to Gladys, too.  She has an incentive to do supererogatory things that doesn’t apply to you and me; but that may turn out to be more than just an incentive: it could be straightforward pressure.

Another thing that’s worth asking: does it matter that they’re sisters?  Suppose another prisoner was a tissue match for Jamie – maybe, for the sake of the argument, a better match: would that unrelated prisoner be able to volunteer to be a donor in return for parole?  One of the coericive elements – family pressure – would be removed, so the decision might be prima facie more defencible.  So if this scenario were not to be allowed, we’d have to ask why merely being a blood relative makes a moral difference.

And then we could go one step further: if non-relatives could trade of prison time for an organ, would that be a sentence that we’d want to see passed?  Presumably, if the two are interchangeable in the Mississippi case, the judge thinks that a sentence of transplantation would be at least something one might want to consider.  (Maybe one could come up with a rubric to say how many years’ freedom could be “bought” for a kidney, blood, bone marrow, or a lung.)

That would be one step too far, I think, for reasons at which Muireann also hints in her reply to Michelle.  Basically, the idea is this: that prison punishes by depriving a person of their liberty.  Michelle plays devil’s advocate (I think) when she suggests that

[p]risoners seem to be in an extremely vulnerable position, and it is the duty of the state not to exploit them.  [But i]t might be thought that they have forfeited some of their right to protection by committing a crime.

This would be a mistake.  There is no such forfeiture.  Someone sentenced to prison loses certain liberty rights; but it doesn’t follow that they lose rights to protection.  Now, it may be that we decide that it would be fair to restore liberty earlier than expected if the prisoner demonstrates reform (or whatever); clemency like this is a good and admirable thing.  Offering a kidney to save a life might be the sort of thing that we would want to reward; and in respect of a prisoner, the offer of liberty might be something to consider as the right kind of reward.

However, that’s quite different from offering parole as an incentive.  What makes the difference is the question of whose initiative the parole idea is, and the reason why the offer of donation is made.  A prisoner who volunteers to help someone may well earn moral credit; and it may be right to translate this into penal credit.  But when the idea comes from someone other than the prisoner – especially when it comes from someone who might have some kind of say on the prisoner’s release date – then, for some reason, that seems very different.

I’m not sure why, but my hunch is that the reason has to do with treating medicine as a surrogate for criminal justice.  They’re two different things, though; and though this case demonstrates that they could be emulsified, they remain different things.  Medical rights and duties are one thing; liberty rights and duties another.  It’s one thing to incentivise donation; mixing it with criminal justice decisions, though, is something else.

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