Are Prisoners Medical Captives?

The medical treatment of captive patients is a litmus test for a good society. See Bursztajn HJ, Brodsky A: Captive Patients, Captive Doctors: Clinical Dilemmas and Interventions in Caring for Patients in Managed Health Care. Gen. Hospital Psychiatry 1999; 21:239-248; and Bursztajn HJ, Brodsky A: Clear, Convincing, and Authentic Advance Directives in the Context Of Managed Care? J. Clin Ethics 1994; 5:364-366. If those such as prison inmates, the poor, or patients in restrictive managed care plans who have little choice as to their treating clinician are nonetheless able to rely on their physicians for ethical treatment, then those who do have a choice can do so all the more. Bursztajn HJ, Feinbloom RI, Hamm RM, Brodsky A: Medical Choices, Medical Chances: How Patients, Families, and Physicians Can Cope with Uncertainty. New York: Routledge, 1990. In total-institution settings, demoralization sets in when what little choice remains is further restricted.

It is against this background that the question of whether prisoners should be allowed to donate organs for transplantation is explored. In this article, we focus on prospective living organ donors who face capital punishment. Some of the issues raised may also apply to death row inmates who wish to become cadaveric organ donors and donate their organs after death. However, in the latter instance, their right to do so may conflict less with society's interest in justice.

Background

Recently, a death row inmate's request to delay his execution so that he could donate part of his liver to his ailing sister was unanimously denied by the Indiana Parole Board and by Indiana governor Mitch Daniels (See McStay RM Jr.: The Ethical Implications of Organ Donation. LJN's Bioethics Legal Review, Vol. 1, Issue 1, p. 1). Gregory Scott Johnson, convicted of beating and stomping an 82-year-old woman to death in 1985 and then setting her house on fire to hide the crime, died by lethal injection on May 25, 2005. This was not the first time a condemned prisoner has tried to donate an organ. There have been several cases of death row inmates seeking to become living organ donors, and their requests have been met with varying degrees of success. In 1995, a death row inmate in Delaware successfully donated his kidney to his mother, and in 1996 an Alabama man was granted a 21-day stay of execution by the Alabama Supreme Court to allow doctors to determine if he would be a match to donate a kidney to his brother.

The use of prisoners as living organ donors raises many ethical concerns. As evidenced by the different decisions that have been reached in the cases cited, there is no clear consensus as to how these cases should be handled. Beyond weighing the motives and mental capacity of the prisoner, it is important to determine whether or not someone on death row is capable of giving truly informed consent to the transplant procedure. The fact that donating an organ could prolong an inmate's life can significantly influence the decision, whether by adding a rational incentive in the inmate's best interest, by creating conflict and mixed motives, or by compromising the inmate's decision-making ability even to the extent of exerting undue influence. Moreover, there needs to be an awareness of various secondary gains for a prisoner in consenting to organ donation. Such secondary gains as expressing genuine remorse or salvaging some sense of pride in the face of certain death by engaging in an altruistic act need not be denied to prisoners in the absence of a psychosis that impairs choice behavior. Freud A: A Form of Altruism. In: The Ego and the Mechanisms of Defense. Rev. ed. Madison, WI: International Univer-sities Press, 1966:122-134. How these factors play themselves out cannot be assumed a priori, but must be evaluated on a case-by-case basis. This evaluation needs to be informed by such considerations as the neurobiology of depression, the psychodynamics of helplessness, and decision-making behavior under conditions of extremity and uncertainty. Bursztajn HJ: Psychoforensic Analysis of Decision Making under Stress. Am Psychoanalyst 2003; 37(3):1,9,17.

Another key issue is organ compatibility. Frist WH: Transplant: A Heart Surgeon's Account of the Life-and-Death Dramas of the New Medicine. New York: Random House Publishing Group, 1990. A number of factors determine whether or not a donor organ will be compatible with its intended recipient. Donor and recipient characteristics play a large role, as well as genetic and medical factors. If the organ being offered by the death row inmate is not an ideal match for the intended recipient, should the execution be delayed (or the inmate even be granted clemency) for the time needed to find an ideal match? Such a policy would place inmates with common organ types at a disadvantage next to those with rare types. Would it be reasonable to keep death-row donors with rare matching characteristics alive longer or, for the sake of fairness, to give all such donors the same length of time to find a suitable recipient? In exploring this dilemma, related questions arise as to what weight justice should give to “moral lock” factors such as genetic influences and the problem of genetic discrimination. Bursztajn HJ, Sobel R, Allbright A: Protecting Privacy in the Behavioral Genetics Era. Mental Physical Disabilities L Rep, 2003; 27:523.

Why Prisoners?

In light of the severe shortage of donor organs worldwide, the debate over the use of prisoners as a potential organ source is one of particular importance. There is a great disparity between the supply of and demand for transplantable organs. Current estimates suggest that organs are recovered from only about 40% of potential cadaveric donors, and the organ supply from live donors is very small. Votruba M: Efficiency-Equity Tradeoffs in the Allocation of Cadaveric Kidneys. Doctoral Dissertation, Princeton University, 2001.

The United Network for Organ Sharing (UNOS) was established by Congress in 1984 to encourage organ donation and distribute available organs equitably. Currently, an average of 17 people die each day waiting for organs on the UNOS waiting list. In 2001, 6400 people in need of a transplant died before an organ became available. In the case of single organs such as livers, there is at least a 10% mortality rate among those awaiting a transplant — an estimate that is most certainly too low since patients who have become too ill to receive a transplant are removed from the waiting list and are not counted in the mortality statistics, although their deaths are likely due to the fact that they did not receive a life-saving organ before their condition grew fatal. Rutecki GW: Human Dignity and the Organ Supply: Do Proposed Solutions to the Current Crisis Measure Up? 25 May 2005 .

Far more people need organs than are being supplied. The principal means by which this problem has been addressed thus far is by encouraging organ donation. In January 2004, the Wisconsin State Senate passed a bill that offered a tax deduction of up to $10,000 to cover the travel and lodging expenses as well as lost wages of anyone acting as a living organ donor. The bill, authored by Wisconsin State Representative Bill Wieckert, was intended to help enlarge the pool of organs, making it possible for more people to receive potentially life-saving transplant surgery. Similar bills have been proposed in the Indiana state legislature, and as the organ shortage persists, we may see an upsurge in such legislation in other states as well.

The Ethical Concerns

Because of the critical shortage of organs available for transplantation, atypical solutions must be considered. Some of these solutions, such as the use of death row inmates as living donors, raise ethical concerns. In order to address these concerns, it is necessary to take a closer look at the role of government in our society. The primary duties of government in a democratic society are to provide security for its citizens and to protect their individual liberties. Often, a tension exists between these responsibilities — for example, when the protection of citizens' security entails infringing on their liberties. When an individual commits a crime, he relinquishes a certain degree of his own liberty to repay the debt he has incurred by depriving someone else of his or her liberty. In the case of death row inmates, a fundamental liberty, the freedom to live, is relinquished.

When the liberty of life is relinquished, certain subsidiary claims that assume this liberty are by extension also relinquished. A prisoner has lost the freedom of mobility — of being able to go from place to place. However, the prisoner continues to be fed, clothed, and given a place to live, so that his freedom to obtain nutrition, clothing, and shelter (albeit in restricted, standardized forms) has not been taken away. Likewise, the prisoner retains access to religious services of his choosing. The question remains, however, whether a prisoner retains the right to give informed consent — in this case, to donate his organs.

Informed Consent

Obtaining informed consent through an appropriate process is a minimum standard that must be observed when inmates, especially those facing the death penalty, volunteer to be organ donors. Reiser SJ, Bursztajn HJ, Gutheil TG, Appelbaum PS: Divided Staffs, Divided Selves: A Case Approach to Mental Health Ethics. Cambridge, UK: Cambridge University Press, 1987. This standard includes an absence of even subtle coercion. On the other hand, inmates should not be precluded a priori from implementing a wish that benefits society as well as the inmate by providing a means of restitution.

Economics

Because of the nature of this dilemma, looking at the issue from an economic standpoint may be helpful. Based on our notion of the role of government, the relevant issues are the safety and liberty of citizens, and we wish to maximize both. On one side we have the consequences of allowing a death row inmate to donate his organs and the costs that that entails. Since the prisoner will still be in confinement and his actions carefully monitored, the threat to security of allowing the prisoner a stay of execution is minimal.

However, by allowing a death row inmate to donate an organ, his execution date may be delayed, and this will certainly incur additional prison expenses. In addition, there is the cost of the prisoner's post-operative care. The United States has always been one of the world's strongest advocates for the humane treatment of individuals and against the use of torture. Indeed, even in times of war, the United States has held firm to its belief that detainees should be treated humanely and not subjected to physical or mental abuse or cruel treatment. The serious response of both the public and the medical profession to the reported abuses of prisoners at Abu Ghraib and Guantanamo Bay is indicative of the depth of commitment to this principle in our democracy.

This policy extends to individuals who have committed crimes, and to put to death an individual immediately after a vital organ has been removed would run counter to this principle. Thousands of dollars would have to be spent on recuperation costs, which can amount to several months' time, before the prisoner would be “healthy enough” to be executed. Furthermore, there is the cost of round-the-clock hospital bedside guard duty while the prisoner recovers from the procedure.

The Cost of Blocking Donations

While these costs may seem great, the costs of not allowing the donation to take place are also significant. The average waiting time for kidney transplants is more than 1000 days, and if the waiting list continues to grow at its current rate of 20% per year while the number of kidney transplants taking place remains below 10,000 per year, the average wait for a kidney will be 10 years by the year 2010. Smith S: Organ Allocation At the Crossroads. 25 May 2005: http://www.chfpatients. com/tx/txrules.htm. The medical costs associated with spending years on organ waiting lists are enormous, and even greater is the economic loss to society from individuals dying while on the waiting list. People who have received organ transplants can often make a full recovery and live relatively normal lives as productive members of society. Over a lifetime, the economic contribution of a healthy working individual to society is immense and can outweigh the costs associated with allowing a prisoner to donate organs.

Advances in Technology

With advances in technology, a host of new ethical dilemmas often arises. However, in the case of harvesting organs from prisoners, technology may actually help abate the ethical problem. If better mechanisms for the storage of organs are developed, death row inmates who express a desire to donate their organs may do so well in advance of their execution date and have their organs stored, so that their execution date need not be delayed. This approach also alleviates the problem of obtaining informed consent from prisoners, since the decision to donate or not donate will have no bearing on their sentence. Improved technology is already allowing organs to be stored for increasingly long periods before being transplanted. In 2001, researchers at the University of Chicago were able to keep a kidney “alive” for almost 24 hours using a device called a Portable Organ Preservation System (POPS), which resuscitates organs. In the future, it may be possible to store organs for significantly longer amounts of time.

The Controversy

Technological advances aside, allowing prisoners to be living or cadaveric organ donors is a fundamentally controversial practice both ethically and legally. However, because of the severity of the organ shortage, some countries already consider alternative organ sources, including the use of prisoners as cadaveric organ donors. In some countries, such as the People's Republic of China, this practice is already taking place, with prospective recipients encouraged to come to China to await a transplant. See Ikels C: Ethical Issues. China Jnl. 1997; 38:95-119; and Ikels C: Kidney Failure and Transplantation in China. Soc. Sci. Med. 1997; 44:1271-1283. Increasing the supply of available organs by allowing prisoners in the United States to act as organ donors can help eliminate this international black market as well as provide additional societal benefits to those who are most vulnerable.

At the same time, there remains the problem that if the practice becomes prevalent, juries may be unduly influenced toward the death penalty in the expectation not of protecting society from future harm or of doing retributive justice, but of providing society with another potential organ donor. Jurors tempted by the prospect of saving a life by increasing the likelihood that a defendant convicted of taking a life will thereby become an organ donor may well be tempted to overlook considerations of justice and may thereby fail to weigh mitigating circumstances fairly against aggravating circumstances.

Economic and other policy considerations cannot be allowed to replace or obscure ethical considerations. Nonetheless, if the defense in the capital sentencing phase is provided adequate support to present mitigating circumstances in an objective manner, juries can be trusted to consider mitigating circumstances fairly, irrespective of whether condemning a prisoner to death may increase the organ supply. To make this a workable system, however, defense counsel must be allowed sufficient resources to provide effective assistance of counsel, see Ake v. Oklahoma, 470 US 68 (1985), so as to develop and effectively present to the jury objective data as to mitigating circumstances such as the influence of major mental illness on an individual's actions.

Conclusion

At best, allowing prisoners facing execution to be living organ donors must still be considered an experimental procedure subject to stringent protections, including examination of the prisoner by a forensic psychiatrist as to competence to consent, and an independent evaluation of the ethical life of the institution in question.

Each case probably would need to be evaluated separately as the psychodynamic, ethical, and moral considerations would very greatly from one to another. The fundamental issue at hand is whether or not the prisoner is in a position to be able to give informed consent to the medical procedure being offered to him.

Therefore, meticulous ethical monitoring as to whether the organization is abiding by the protections embodied in such stringent standards as the Nuremberg Code is vital if foreseeable (albeit inadvertent) abuses of justice are to be restrained in the process of beneficence and if ghoulish behavior is to be avoided on the road to goodness. (The Nuremberg Code is available at www.forensic-psych.com/articles/artNurembergCode.html. See also Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, Vol. 2, pp 181-182. Washington, DC: U.S. Government Printing Office, 1949.)

The authors wish to thank Archie Brodsky, Tessa Chelouche, Charlotte Ikels, Stan Morse, Steve Nathanson, John Parry, Leonti Thompson, David Vogel, and the members of the Harvard Medical School Program in Psychiatry and the Law for their thoughtful comments and helpful perspectives.

The medical treatment of captive patients is a litmus test for a good society. See Bursztajn HJ, Brodsky A: Captive Patients, Captive Doctors: Clinical Dilemmas and Interventions in Caring for Patients in Managed Health Care. Gen. Hospital Psychiatry 1999; 21:239-248; and Bursztajn HJ, Brodsky A: Clear, Convincing, and Authentic Advance Directives in the Context Of Managed Care? J. Clin Ethics 1994; 5:364-366. If those such as prison inmates, the poor, or patients in restrictive managed care plans who have little choice as to their treating clinician are nonetheless able to rely on their physicians for ethical treatment, then those who do have a choice can do so all the more. Bursztajn HJ, Feinbloom RI, Hamm RM, Brodsky A: Medical Choices, Medical Chances: How Patients, Families, and Physicians Can Cope with Uncertainty. New York: Routledge, 1990. In total-institution settings, demoralization sets in when what little choice remains is further restricted.

It is against this background that the question of whether prisoners should be allowed to donate organs for transplantation is explored. In this article, we focus on prospective living organ donors who face capital punishment. Some of the issues raised may also apply to death row inmates who wish to become cadaveric organ donors and donate their organs after death. However, in the latter instance, their right to do so may conflict less with society's interest in justice.

Background

Recently, a death row inmate's request to delay his execution so that he could donate part of his liver to his ailing sister was unanimously denied by the Indiana Parole Board and by Indiana governor Mitch Daniels (See McStay RM Jr.: The Ethical Implications of Organ Donation. LJN's Bioethics Legal Review, Vol. 1, Issue 1, p. 1). Gregory Scott Johnson, convicted of beating and stomping an 82-year-old woman to death in 1985 and then setting her house on fire to hide the crime, died by lethal injection on May 25, 2005. This was not the first time a condemned prisoner has tried to donate an organ. There have been several cases of death row inmates seeking to become living organ donors, and their requests have been met with varying degrees of success. In 1995, a death row inmate in Delaware successfully donated his kidney to his mother, and in 1996 an Alabama man was granted a 21-day stay of execution by the Alabama Supreme Court to allow doctors to determine if he would be a match to donate a kidney to his brother.

The use of prisoners as living organ donors raises many ethical concerns. As evidenced by the different decisions that have been reached in the cases cited, there is no clear consensus as to how these cases should be handled. Beyond weighing the motives and mental capacity of the prisoner, it is important to determine whether or not someone on death row is capable of giving truly informed consent to the transplant procedure. The fact that donating an organ could prolong an inmate's life can significantly influence the decision, whether by adding a rational incentive in the inmate's best interest, by creating conflict and mixed motives, or by compromising the inmate's decision-making ability even to the extent of exerting undue influence. Moreover, there needs to be an awareness of various secondary gains for a prisoner in consenting to organ donation. Such secondary gains as expressing genuine remorse or salvaging some sense of pride in the face of certain death by engaging in an altruistic act need not be denied to prisoners in the absence of a psychosis that impairs choice behavior. Freud A: A Form of Altruism. In: The Ego and the Mechanisms of Defense. Rev. ed. Madison, WI: International Univer-sities Press, 1966:122-134. How these factors play themselves out cannot be assumed a priori, but must be evaluated on a case-by-case basis. This evaluation needs to be informed by such considerations as the neurobiology of depression, the psychodynamics of helplessness, and decision-making behavior under conditions of extremity and uncertainty. Bursztajn HJ: Psychoforensic Analysis of Decision Making under Stress. Am Psychoanalyst 2003; 37(3):1,9,17.

Another key issue is organ compatibility. Frist WH: Transplant: A Heart Surgeon's Account of the Life-and-Death Dramas of the New Medicine. New York: Random House Publishing Group, 1990. A number of factors determine whether or not a donor organ will be compatible with its intended recipient. Donor and recipient characteristics play a large role, as well as genetic and medical factors. If the organ being offered by the death row inmate is not an ideal match for the intended recipient, should the execution be delayed (or the inmate even be granted clemency) for the time needed to find an ideal match? Such a policy would place inmates with common organ types at a disadvantage next to those with rare types. Would it be reasonable to keep death-row donors with rare matching characteristics alive longer or, for the sake of fairness, to give all such donors the same length of time to find a suitable recipient? In exploring this dilemma, related questions arise as to what weight justice should give to “moral lock” factors such as genetic influences and the problem of genetic discrimination. Bursztajn HJ, Sobel R, Allbright A: Protecting Privacy in the Behavioral Genetics Era. Mental Physical Disabilities L Rep, 2003; 27:523.

Why Prisoners?

In light of the severe shortage of donor organs worldwide, the debate over the use of prisoners as a potential organ source is one of particular importance. There is a great disparity between the supply of and demand for transplantable organs. Current estimates suggest that organs are recovered from only about 40% of potential cadaveric donors, and the organ supply from live donors is very small. Votruba M: Efficiency-Equity Tradeoffs in the Allocation of Cadaveric Kidneys. Doctoral Dissertation, Princeton University, 2001.

The United Network for Organ Sharing (UNOS) was established by Congress in 1984 to encourage organ donation and distribute available organs equitably. Currently, an average of 17 people die each day waiting for organs on the UNOS waiting list. In 2001, 6400 people in need of a transplant died before an organ became available. In the case of single organs such as livers, there is at least a 10% mortality rate among those awaiting a transplant — an estimate that is most certainly too low since patients who have become too ill to receive a transplant are removed from the waiting list and are not counted in the mortality statistics, although their deaths are likely due to the fact that they did not receive a life-saving organ before their condition grew fatal. Rutecki GW: Human Dignity and the Organ Supply: Do Proposed Solutions to the Current Crisis Measure Up? 25 May 2005 .

Far more people need organs than are being supplied. The principal means by which this problem has been addressed thus far is by encouraging organ donation. In January 2004, the Wisconsin State Senate passed a bill that offered a tax deduction of up to $10,000 to cover the travel and lodging expenses as well as lost wages of anyone acting as a living organ donor. The bill, authored by Wisconsin State Representative Bill Wieckert, was intended to help enlarge the pool of organs, making it possible for more people to receive potentially life-saving transplant surgery. Similar bills have been proposed in the Indiana state legislature, and as the organ shortage persists, we may see an upsurge in such legislation in other states as well.

The Ethical Concerns

Because of the critical shortage of organs available for transplantation, atypical solutions must be considered. Some of these solutions, such as the use of death row inmates as living donors, raise ethical concerns. In order to address these concerns, it is necessary to take a closer look at the role of government in our society. The primary duties of government in a democratic society are to provide security for its citizens and to protect their individual liberties. Often, a tension exists between these responsibilities — for example, when the protection of citizens' security entails infringing on their liberties. When an individual commits a crime, he relinquishes a certain degree of his own liberty to repay the debt he has incurred by depriving someone else of his or her liberty. In the case of death row inmates, a fundamental liberty, the freedom to live, is relinquished.

When the liberty of life is relinquished, certain subsidiary claims that assume this liberty are by extension also relinquished. A prisoner has lost the freedom of mobility — of being able to go from place to place. However, the prisoner continues to be fed, clothed, and given a place to live, so that his freedom to obtain nutrition, clothing, and shelter (albeit in restricted, standardized forms) has not been taken away. Likewise, the prisoner retains access to religious services of his choosing. The question remains, however, whether a prisoner retains the right to give informed consent — in this case, to donate his organs.

Informed Consent

Obtaining informed consent through an appropriate process is a minimum standard that must be observed when inmates, especially those facing the death penalty, volunteer to be organ donors. Reiser SJ, Bursztajn HJ, Gutheil TG, Appelbaum PS: Divided Staffs, Divided Selves: A Case Approach to Mental Health Ethics. Cambridge, UK: Cambridge University Press, 1987. This standard includes an absence of even subtle coercion. On the other hand, inmates should not be precluded a priori from implementing a wish that benefits society as well as the inmate by providing a means of restitution.

Economics

Because of the nature of this dilemma, looking at the issue from an economic standpoint may be helpful. Based on our notion of the role of government, the relevant issues are the safety and liberty of citizens, and we wish to maximize both. On one side we have the consequences of allowing a death row inmate to donate his organs and the costs that that entails. Since the prisoner will still be in confinement and his actions carefully monitored, the threat to security of allowing the prisoner a stay of execution is minimal.

However, by allowing a death row inmate to donate an organ, his execution date may be delayed, and this will certainly incur additional prison expenses. In addition, there is the cost of the prisoner's post-operative care. The United States has always been one of the world's strongest advocates for the humane treatment of individuals and against the use of torture. Indeed, even in times of war, the United States has held firm to its belief that detainees should be treated humanely and not subjected to physical or mental abuse or cruel treatment. The serious response of both the public and the medical profession to the reported abuses of prisoners at Abu Ghraib and Guantanamo Bay is indicative of the depth of commitment to this principle in our democracy.

This policy extends to individuals who have committed crimes, and to put to death an individual immediately after a vital organ has been removed would run counter to this principle. Thousands of dollars would have to be spent on recuperation costs, which can amount to several months' time, before the prisoner would be “healthy enough” to be executed. Furthermore, there is the cost of round-the-clock hospital bedside guard duty while the prisoner recovers from the procedure.

The Cost of Blocking Donations

While these costs may seem great, the costs of not allowing the donation to take place are also significant. The average waiting time for kidney transplants is more than 1000 days, and if the waiting list continues to grow at its current rate of 20% per year while the number of kidney transplants taking place remains below 10,000 per year, the average wait for a kidney will be 10 years by the year 2010. Smith S: Organ Allocation At the Crossroads. 25 May 2005: http://www.chfpatients. com/tx/txrules.htm. The medical costs associated with spending years on organ waiting lists are enormous, and even greater is the economic loss to society from individuals dying while on the waiting list. People who have received organ transplants can often make a full recovery and live relatively normal lives as productive members of society. Over a lifetime, the economic contribution of a healthy working individual to society is immense and can outweigh the costs associated with allowing a prisoner to donate organs.

Advances in Technology

With advances in technology, a host of new ethical dilemmas often arises. However, in the case of harvesting organs from prisoners, technology may actually help abate the ethical problem. If better mechanisms for the storage of organs are developed, death row inmates who express a desire to donate their organs may do so well in advance of their execution date and have their organs stored, so that their execution date need not be delayed. This approach also alleviates the problem of obtaining informed consent from prisoners, since the decision to donate or not donate will have no bearing on their sentence. Improved technology is already allowing organs to be stored for increasingly long periods before being transplanted. In 2001, researchers at the University of Chicago were able to keep a kidney “alive” for almost 24 hours using a device called a Portable Organ Preservation System (POPS), which resuscitates organs. In the future, it may be possible to store organs for significantly longer amounts of time.

The Controversy

Technological advances aside, allowing prisoners to be living or cadaveric organ donors is a fundamentally controversial practice both ethically and legally. However, because of the severity of the organ shortage, some countries already consider alternative organ sources, including the use of prisoners as cadaveric organ donors. In some countries, such as the People's Republic of China, this practice is already taking place, with prospective recipients encouraged to come to China to await a transplant. See Ikels C: Ethical Issues. China Jnl. 1997; 38:95-119; and Ikels C: Kidney Failure and Transplantation in China. Soc. Sci. Med. 1997; 44:1271-1283. Increasing the supply of available organs by allowing prisoners in the United States to act as organ donors can help eliminate this international black market as well as provide additional societal benefits to those who are most vulnerable.

At the same time, there remains the problem that if the practice becomes prevalent, juries may be unduly influenced toward the death penalty in the expectation not of protecting society from future harm or of doing retributive justice, but of providing society with another potential organ donor. Jurors tempted by the prospect of saving a life by increasing the likelihood that a defendant convicted of taking a life will thereby become an organ donor may well be tempted to overlook considerations of justice and may thereby fail to weigh mitigating circumstances fairly against aggravating circumstances.

Economic and other policy considerations cannot be allowed to replace or obscure ethical considerations. Nonetheless, if the defense in the capital sentencing phase is provided adequate support to present mitigating circumstances in an objective manner, juries can be trusted to consider mitigating circumstances fairly, irrespective of whether condemning a prisoner to death may increase the organ supply. To make this a workable system, however, defense counsel must be allowed sufficient resources to provide effective assistance of counsel, see Ake v. Oklahoma , 470 US 68 (1985), so as to develop and effectively present to the jury objective data as to mitigating circumstances such as the influence of major mental illness on an individual's actions.

Conclusion

At best, allowing prisoners facing execution to be living organ donors must still be considered an experimental procedure subject to stringent protections, including examination of the prisoner by a forensic psychiatrist as to competence to consent, and an independent evaluation of the ethical life of the institution in question.

Each case probably would need to be evaluated separately as the psychodynamic, ethical, and moral considerations would very greatly from one to another. The fundamental issue at hand is whether or not the prisoner is in a position to be able to give informed consent to the medical procedure being offered to him.

Therefore, meticulous ethical monitoring as to whether the organization is abiding by the protections embodied in such stringent standards as the Nuremberg Code is vital if foreseeable (albeit inadvertent) abuses of justice are to be restrained in the process of beneficence and if ghoulish behavior is to be avoided on the road to goodness. (The Nuremberg Code is available at www.forensic-psych.com/articles/artNurembergCode.html. See also Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, Vol. 2, pp 181-182. Washington, DC: U.S. Government Printing Office, 1949.)

The authors wish to thank Archie Brodsky, Tessa Chelouche, Charlotte Ikels, Stan Morse, Steve Nathanson, John Parry, Leonti Thompson, David Vogel, and the members of the Harvard Medical School Program in Psychiatry and the Law for their thoughtful comments and helpful perspectives.