By Prison Legal News
Prison officials in several states are mulling over two sides of the same coin with respect to organ transplants for prisoners: first, the eligibility and cost of such medical procedures, and second, whether prisoners should be allowed to donate their organs.
Prisoners in Need of Organ Transplants
In Rhode Island, a liver transplant performed on a 27-year-old prisoner left officials defending the cost of the life-saving operation.
A spokeswoman for the Rhode Island Department of Corrections (RI DOC) said Jose Pacheco, who is serving a 6½-year sentence for robbery, became the first prisoner in the state to receive a liver transplant. The August 1, 2012 operation was performed in Boston because Rhode Island hospitals don’t currently perform such transplants.
The procedure can cost up to almost $1 million, with the state required to pick up 40% of the bill, according to court precedent.
But the RI DOC said in a statement that it was unclear how much of Pacheco’s hospital bills the state will actually pay because it’s possible he qualified for Social Security benefits before he was incarcerated. In that case, Medicaid would cover about 50% of the cost.
“To date, the Department has paid only for the inmate’s supervision in the hospital under an interagency agreement with the [Massachusetts Department of Corrections],” said RI DOC spokeswoman Tracey Zeckhausen. “That totaled just over $110,000” as of June 2012, she added.
“It is a sort of lose-lose situation for the taxpayer,” said state Senator Dawson Hodgson. “It can amount to torture if you let someone die without healthcare. At the same time, $1 million is a tremendous amount of taxpayer resources, whether it is coming from the state or federal government, put into any person’s healthcare – never mind someone who is a drug dealer and a thief.”
Pacheco’s case is not the first to generate controversy about prisoners receiving organ transplants, of course.
A California prisoner received a heart transplant in January 2002 at a cost of $1 million – which included follow-up care – according to Russ Heimerich, a spokesman for the California Department of Corrections and Rehabilitation (CDCR). At the time, Heimerich said the 32-year-old prisoner was suffering from a fatal heart condition. [See: PLN, Sept. 2002, p.12].
Less than a year later the heart transplant recipient had died, the victim of what prison officials called a failure to adhere to the demanding medical protocols that follow such an operation. [See: PLN, Oct. 2003, p.28]. Transplant patients typically require close monitoring and a wide range of daily medications to prevent organ rejection and fight infections.
In 2004, a California federal court ordered the CDCR to contact transplant centers in the state to determine whether they would accept a prisoner as a candidate for a liver transplant. See: Rosado v. Alameida, 359 F.Supp.2d 1341 (S.D. Cal. 2004).
New York state prisoner Wilfredo Rodriguez received a $400,000 liver transplant in November 2005. [See: PLN, Feb. 2006, p.40]. When another New York prisoner, convicted of rape, was being evaluated in 2011 for a heart transplant, state lawmakers demanded a review of the policies that permitted such operations at taxpayers’ expense.
“These reports raise a multitude of questions that demand and deserve answers for New York taxpayers, potential organ donors, and law-abiding families who are still waiting for life-saving transplants,” said state Senator Michael Nozzolio. “We cannot allow law-abiding citizens to be denied transplants in favor of dangerous violent offenders, convicted of heinous crimes, who may never leave prison.”
Apparently, Nozzolio was unaware that the provision of adequate healthcare by prison officials – including organ transplants when needed – is a Constitutional requirement. The U.S. Supreme Court ruled in Estelle v. Gamble, 429 U.S. 97 (1976) that denying necessary medical care to prisoners constitutes cruel and unusual punishment in violation of the Eighth Amendment.
“You get a liver transplant because you meet the very strict criteria, not because we like you,” remarked Dr. David Kaufman, the medical director at Strong Memorial Hospital, which performed the liver transplant for Rodriguez.
The New York prisoner seeking a heart transplant, Kenneth Pike, was screened for the operation but later declined the transplant for reasons that were not reported.
Meanwhile, the United Network for Organ Sharing (UNOS), a non-profit organization that manages the organ transplant system in the United States under a contract with the federal government, has taken the position that prisoners should not be precluded by their carceral status from receiving transplants, and should be eligible for such procedures to the same extent as non-incarcerated citizens.
People usually receive organ transplants according to their position on the waiting list, which is based on the severity of their medical condition. There are currently over 121,000 people on organ waiting lists nationwide.
When Prisoners Want to Donate Organs
At the opposite end of the spectrum, controversy has erupted in several states about the ability of prisoners – including those on death row – to donate their organs, and the appropriateness of such donations.
In Mississippi, Governor Haley Barbour commuted the life sentences of sisters Gladys and Jamie Scott in December 2010, on the condition that Gladys donate one of her kidneys to Jamie. Both prisoners, who had served 16 years for an $11 armed robbery, were released in January 2011; Barbour’s decision may have been partly motivated by fiscal concerns, as Jamie’s dialysis was reportedly costing the state prison system around $190,000 per year. It is unclear whether the post-release kidney transplant occurred, as it was initially postponed for medical reasons. [See: PLN, May 2011, p.34].
Utah enacted the Inmate Medical Donation Act in March 2013, which allows voluntary organ donations from prisoners who die “while in the custody” of the Department of Corrections. The law states that prison officials may “release to an organ procurement organization … the names and addresses of all inmates who complete and sign the document of gift form indicating they intend to make an anatomical gift.”
In Ohio, Governor John R. Kasich placed the November 2013 execution of death row prisoner Ronald Phillips on hold in order to study the feasibility of allowing Phillips and other condemned prisoners to donate their organs. Phillips was sentenced to die for the 1993 rape and beating death of his girlfriend’s 3-year-old daughter.
“Ronald Phillips committed a heinous crime for which he will face the death penalty,” the governor said in a statement. “I realize this is a bit of uncharted territory for Ohio, but if another life can be saved by his willingness to donate his organs and tissues then we should allow for that to happen.”
Phillips’ request to donate his organs to sick relatives or others who need them was initially rejected by state prison officials. According to the governor’s office, Phillips’ non-vital organs, such as a kidney, would be removed and he would then be returned to death row pending his execution, which was re-scheduled for July 2014.
On March 21, 2014, Ohio Department of Rehabilitation and Correction chief counsel Stephen Gray said Phillips would not be able to donate his organs, as he could not to do so in time to allow for a 100-day recuperation period prior to his new execution date.
Some people worry about the ethics of allowing death row prisoners to donate their organs. Jeff Orlowski, who heads Life Share Transplant Services, compared the process to organ harvesting – a practice that has been condemned in China, which until only recently harvested organs from executed prisoners. [See: PLN, March 2013, p.27; Sept. 2009, p.35; Jan. 2008, p.16; Sept. 2007, p.24].
Life Share Transplant Services keeps track of the organ donation registry in Oklahoma, where one state lawmaker predicted widespread support for his proposal to allow death row prisoners to donate their organs.
“I don’t think it will be a tough sell,” state Rep. Joe Dorman said in November 2013. “I think with the strong stance that we have with members of the legislature being pro-life, I certainly see this as a pro-life idea because you’re saving lives with the actions of that prisoner seeking redemption” by donating his organs.
“You can’t put a price on life,” he added, apparently without irony.
Rep. Dorman said organs donated by willing prisoners would benefit people waiting for transplants – especially for organs that are difficult to find, The Oklahoman reported. His proposed legislation would allow prisoners to be anesthetized, have their organs removed and then be placed on life support until their executions can be carried out. Oklahoma uses lethal injection, which renders organs useless for post-execution transplants.
“The only options for executing someone to obtain vital organs is to either shoot them in the head or chop their head off and have a team of doctors ready to step in immediately,” noted Arthur Caplan, professor of medical ethics at NYU Langone Medical Center.
Oregon death row prisoner Christian Longo has pushed the issue of organ donation for several years. “If I donated all of my organs today, I could clear nearly 1 percent of my state’s organ waiting list. I am 37 years old and healthy; throwing my organs away after I am executed is nothing but a waste,” he wrote in a New York Times editorial on March 5, 2011. Prison officials denied his request.
Longo, who founded an organization called Gifts of Anatomical Value from Everyone (GAVE), renewed his efforts to donate his organs in March 2014, offering to give a kidney to Kevin Gray, an Oregon resident with kidney failure who is on dialysis.
“I don’t care if you’re incarcerated, if you’re my neighbor – if you’re willing to donate an organ to save a life it’s very breathtaking and I’m very grateful,” Gray said, although he later rejected the offer after learning that Longo was on death row.
“The department looks at organ donation on a case-by-case basis,” stated Oregon Department of Corrections spokeswoman Jennifer Black. “If someone needs a bone marrow transplant or their mother needs a kidney and there’s a match, then there’s no reason that can’t go forward,” she said. “But it’s not just a blanket ‘yes.’ All offenders can give part of their body away to somebody else. It has to be for the right reasons and the right person and all that.”
Policies related to organ donations by prisoners, including those on death row, vary from state to state.
“There have been several instances in the United States within the last 20 years where condemned prisoners have requested to become organ donors, either upon their execution as a deceased donor or prior to execution as a living donor,” UNOS said in a November 14, 2013 statement posted on the organization’s website. “Ultimately the correctional authority must decide whether to allow any inmate to be evaluated for donation, and an organ procurement organization and/or transplant center must make medical decisions whether to accept any person as a donor and allow a transplant to proceed.”
UNOS noted that organ donations from prisoners “present special concerns and vulnerabilities, and appropriate precautions are necessary to prevent the potential for coercion” – such as offering early release or other incentives in exchange for prisoners’ organs.
Sources: www.630wpro.com, Providence Journal, www.osv.com, CBS News, NBC News, United Press International, www.waynepost.com, Associated Press, The New York Times, www.kgw.com, www.wamc.org, New York Daily News, NBC News, www.unos.org, The Oklahoman, www.gavelife.org, Statesman Journal
(Reprinted with Permission from Prison Legal News)