Comment of the Day: “Ethics Quiz: The Kidneys of Orlac”

But first, a last act of altruism...

But first, a last act of altruism?

The presumptive winner of the annual Ethics Alarms award for “Commenter of the Year” in 2013, texagg04has delivered a Comment of the Day expanding the topic of the post regarding a condemned prisoner in Ohio who wrangled a postponement of his execution so he could donate his organs to relatives. Here is  texagg04’s  take on “Ethics Quiz: The Kidneys of Orlac.” I’ll have some comments at the end.

“First, a murderer or other capital criminal being held responsible for his or her conduct seems to be in conflict with the same individual being allowed to display charity when you say they  forfeited their freedom, all of it, with their commission of a  capital crime. I’m not so sure it should be viewed from that angle.

Punishment serves a variety of purposes. Some petty crimes receive punishment designed to compensate, as best as can be, the victim – the victim being dead, capital punishment does not serve this purpose. Some crimes are of an anti-social nature, and the apt punishment seeks to rehabilitate or reconcile the perpetrator to the community. Capital crimes are so heinous that we have determined that the perpetrator must be completely cut off from society, through their death. In this case, the punishment does nothing for the victim OR for the criminal; the punishment is designed solely for the benefit of society.

If the criminal wishes to donate his/her organs to (what we must assume is to salve their own conscience – even though we can, probably, cynically assume is just a delaying tactic), we should not care one bit. They are gaining no material benefit from the community, nor are they engaging in any direct interaction with the community – so the act of cutting them off from the community as part of the punishment is still complete.

On the contrary, refusing their wish to donate their organs does NO additional benefit to society and that is how capital punishment must be viewed, as we have already determined it does not exist to compensate the victim nor to rehabilitate the criminal. So if the refusal adds no additional benefit in the eyes of the community, then I see no reason to deny the ability of the condemned individual to satiate  his own conscience…because that is in his own minds and no one else’s.  We shouldn’t care what he must do in his own mind to make his own amends.

An argument could even be advanced that additional harm is done to society if we were to deny the charitable donation of the condemned man’s  organs. I’m no fan of using economics to back principle, so I won’t use the “his/her donation would increase supply in an already scarce charity pool”. But, to say “no you cannot donate your organs because of your crime” seems to be out of spite more than anything. If it doesn’t rationally add to the benefit of society, then it must have an emotional source. I think attaching emotions as a motive for additional punishment is a terrible thing for the community. There should be no display of or connection to emotion when executing a sentence. It just seems spiteful and malicious, with a hint of “nyah nyah nyah” attached to it. Anyone could rationalize it by saying “they deserve the spite and malice for what they did” – and they certainly do, but let that be inside all the people who wish it. Emotion should not govern the sentence one iota.

Should we deny the request to be an organ donor, we may as well also nullify and void any last will and testament the perpetrator maintained…to the dismay of any *innocent* family and friends of the convicted.

Second, should recipients of such donations be alerted to the origins of the donation? The discussion could go very deeply in the Ethics Quiz derived from this topic. It boils down to a few options:

– Is there an obligation to disclose to EVERY recipient, the donor, whether the recipient wants to know or not?
– Is there an obligation to protect the privacy of the donor, even though deceased (criminal or not) if the donor desired anonymity?
– If there is determined to be no obligation to tell the recipient, but the recipient asks, is there then an obligation to answer?
– What if donor’s preferred anonymity and recipients demanded knowledge come into conflict?

I don’t know the answer to this yet, but I think in general:

  • A recipient has the right to know
  • A donor has the right to privacy
  • A donor’s right to privacy is forfeited for convicted criminals
  • Should a recipient demand knowledge as a condition of receiving an organ, they don’t get to receive anonymous donations.

I think a general rule of thumb to solve MOST conflicts would to simply ask a candidate what ‘types’ of donors they would refuse and then only proceed when ‘appropriate’ organs are acquired. [NOTE: The Ethics Alarms poll on this issue is here.]

Third, would this create a conflict of interest with the State? This is a slippery slope argument, but, I’d submit, a valid one. Our Founding Fathers recognized that when discussing Power, slippery slopes are valid arguments. They designed our entire system acknowledging that Power always tends towards despotism and tyranny. A series of appropriate checks on the ability to donate organs from death row would need to be established.

Should the state become zealous in its prosecution of accused capital criminals, I think changing the standard of sentencing from “beyond reasonable doubt” to “beyond all doubt” would be necessary. This would naturally reduce the overall number of the condemned out of desire to preserve the fraction of falsely convicted innocents.

To keep those convicted beyond all doubt from abusing the donor system in order to stay execution, I’d submit that there would need to be a closure window prior to their execution, determined by however long it takes to schedule the procedures necessary to remove organs, after which the convicted CANNOT suddenly decide to be a donor. (Yes that muddles the absolutes discussed in the First point, but it’d be necessary to avoid abuse). OR, just let the abusers abuse it for another month or two of life.”

——————————

I’m back.

I like the post a lot, with a few exceptions:

1. Sure we should care what the condemned prisoner does in his own mind. His discomfort is part of his punishment. He should not be enjoying any part of his punishment, and the basic enjoyment of life that comes from the liberty law-abiding citizens have as part of their birthright is exactly what condemnation denies him.

2. Among the consequences of the punishment are that he can’t participate in the commerce of society, which would benefit others. He cannot parent and love his children and family members, which would benefit them. He cannot perform community service, or do charity work for the poor. He can’t pay taxes, to support government services and basic community betterment. He can’t make money to give to charity, or adopt an orphan. I see no reason why being prevented from donating his organs is any different. Not being able to do good, and, as a result, assuage his conscience (if he has one) is part of the punishment. The condemned man had a chance to be a useful member of society, and rejected it.

3. Yes, society, or some members of it, suffer because of what just punishment prevents criminals from doing, other than additional crimes, of course. That’s part of the social contract, and a sensible one.

4.  Spite is just a pejorative word for the undeniable fact that there is an element of anger, indignation, revulsion and revenge in the government’s decision to execute someone for a heinous crime. The myth that there’s nothing personal about the fact that society has decided to kill someone is necessary. Of course it’s personal in some respects, and should be. It can be dispassionate and objective, but “nyah, nyah nyah” is just a negative way of expressing the legitimate sentiment, “Ok, you bastard, you have negated any right you have to live in a civilized society, cannot be trusted to participate in our shared existence, and are not worth paying to keep alive. To Hell with you.”

5. In many cultures, the belongings and assets of the condemned were forfeited to the state, and that also seems fair punishment. I  suspect that with some individuals, that would have more deterrent value than the death sentence.

6. In cases of capital punishment, a “beyond all doubt” standard is reasonable, meaning only convictions that are res ipsa loquitur will result in executions (but that a lesser, but still tough, reasonable doubt standard will be used for life imprisonment.) There was no doubt at all that Sirhan Sirhan shot Bobby Kennedy: he was witnessed doing it, captured at the scene, and confessed.

9 Comments

Filed under Bioethics, Citizenship, Comment of the Day, Family, Government & Politics, Health and Medicine, Law & Law Enforcement, U.S. Society

9 responses to “Comment of the Day: “Ethics Quiz: The Kidneys of Orlac”

  1. I would suggest we simply lie to the convict. Tell him his organs will not be used in any way to help his family members…

    And then when he’s dead, use the organs.

    He dies thinking what little utility he may have had is gone, and the people who need his organs get them. Everyone wins.

    Well, everyone except the condemned man, but he stopped mattering when he knowingly and willingly took another person’s life.

  2. FinlayOshea

    Good post, Tex.
    Very well done.

  3. Alexander Cheezem

    RE 5, I’ll concede that the forfeiture of assets is *fair*, at least in theory. There is, however, a very, very good reason why we don’t maintain that practice today — namely that it’s too damned easy for the state to abuse.

    (I submit the historical abuses of this practice as evidence.)

    Do we really want to give the state a powerful financial incentive to convict people of crimes which is entirely independent of whether or not they’re actually guilty?

  4. Thanks for the comments, Jack. I think we differ on how much an individual’s conscience and mind belong to them.

    1 & 2. I don’t know. I think if our goal is to reform the criminal with the hopes of reintroducing him/her to society, then we should care about any conversion in the prisoner’s mind or any sincere display of contrition and repentance. However, for a man condemned to die, we gain nothing from heaping on anything extra than the execution. I’m certainly not saying we seek to increase his comfort or material gain during the wait for execution. It does root itself more in what is discussed later: once an accused has been condemned to die (based on a “beyond all doubt” standard) there should be little time between the gavel hitting the bench and the convicted breathing his/her last.

    Would you then be of the mindset that the condemned (should they be Catholic) don’t get last rites, or be they of any religious persuasion don’t get any final options for their own conscience? Which, I see you disagree, but I think that a person’s mind, no matter how cut off from society, is still their own – even the minds of the most heinous of disgusting miscreants.

    The items you list by analogy to debunk a condemned man donating his organs are all valid because they do involve direct interaction with the community from which they are to be cut off. The donation of organs, which occurs after death, benefits the condemned in no material or social way. Not one bit. It boils down still to the premise involving everyone’s individual conscience. I think that’s where we differ on it.

    If we are concerned that society would have to foot the bill for the donation, and therefore the community would be contributing materially to a former member that has been so cut off, then have the condemned pay for the procedure.

    3 & 5. Alexander Cheezem discussed in summary, and I generally agree. I think that practice would create an even greater conflict of interest than the organ donation one. I could see a portion of the condemned’s property confiscated to pay for the housing and subsequent execution of the criminal, thus relieving yet one more burden from the community. But confiscation after that, I think the secondary and tertiary affects on the *not guilty* dependents of the convicted are more damaging that the positives of doing that.

    4. I don’t disagree with that analysis. But I wasn’t saying that the underlying meaning of the death penalty was wrong. I was associating spite with the underlying meaning of adding more ‘punishment’ on top of the death penalty, in the form of denying the organ donation.

    6. No disagreement there.

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