A recent post on Douglas Berman’s Sentencing Law & Policy blog caught my attention because of the troubling ethical issues it raises. It reported on a Texas death row inmate who is seeking a postponement of his execution so that he can donate a kidney. The inmate making this request, Ramiro Gonzales, is scheduled to die on July 13 for his role in a 2001 murder.
The Associated Press said that Gonzales’s lawyers have asked Texas Governor Gregg Abbott for a 30-day reprieve so he can be a living donor “to someone who is in urgent need of a kidney transplant.” They also petitioned the Texas Board of Pardons and Paroles for “a 180-day reprieve related to the kidney donation.”
Gonzales is not the first death row inmate to want to be an organ donor, although according to Robert Dunham of the Death Penalty Information Center who is quoted by the AP, such requests are unusual. Dunham notes that “The history of executions in the United States shows that people don’t make offers of organ donations for the purpose of delaying an execution that will still take place.”
In fact, when such requests are made, inmates are just as likely to want their organs to be harvested after execution as to ask that it happen before their execution.
But, however unusual they are, such requests always pose serious ethical issues.
How should we understand them?
Are they products of free will? Are they efforts by people condemned to death to maintain their dignity and show that their lives still have value?
Or are they mere ploys to win sympathy or garner publicity? Are such requests the result of the extreme duress that afflicts every individual on death row? And does honoring these requests turn killers into heroes?
In Gonzales’s case, he wants to donate a kidney to a member of Cantor Michael Zoosman’s synagogue. Zoosman, who lives in Maryland, has been corresponding with Gonzales during his time on death row.
Zoosman sent a letter to Governor Abbott in support of Gonzales’s request. Anticipating the concern that Gonzales might merely be trying to delay his date with death, he wrote, “There has been no doubt in my mind that Ramiro’s desire to be an altruistic kidney donor is not motivated by a last-minute attempt to stop or delay his execution. I will go to my grave believing in my heart that this is something that Ramiro wants to do to help make his soul right with his God.”
Unlike many other jurisdictions, Texas inmates are allowed to make organ and tissue donations with the approval of the Department of Corrections. But the Department turned down Gonzales’s request earlier this year. Now its fate rests with the governor or the Board of Pardons and Paroles.
Some instances in which death row inmates have wanted to be, or have been, organ donors have made headlines.
Gary Gilmore, the first person executed in the U.S. after the death penalty was reinstated by the Supreme Court in 1976, asked that his organs be harvested after his execution by firing squad. Utah honored his request.
After he was put to death, Gilmore’s body was taken to Utah University Medical Center where doctors removed his pituitary gland, liver, and eyes, as he had asked. Gilmore also wanted to donate his kidneys. But they were so damaged by the bullets that they could not be salvaged.
In 1984, Margie Velma Barfield became the first woman in the United States to be executed in more than twenty years and the first woman to be executed by lethal injection. Like Gilmore’s, her execution attracted national and international attention.
Barfield asked that after her death her organs be removed to be used for research or transplantation. And, as The New York Times reported, “Immediately after her execution, Mrs. Barfield’s body was rushed to a medical school…, where doctors removed organs she earlier had agreed to donate for transplants.
In 2011, Christian Longo, a prisoner on Oregon’s death row, published a New York Times op-ed entitled “Giving Life After Death Row.” He told his readers that he had “asked to end my remaining appeals, and then donate my organs after my execution to those who need them. But my request has been rejected by the prison authorities.”
Longo wrote that “when a prisoner initiates a request to donate with absolutely no enticements or pressure to do so, and if the inmate receives the same counseling afforded every prospective donor, there is no question in my mind that valid organ-donation consent can be given.”
He concluded that “throwing my organs away after I am executed is nothing but a waste.” Today he remains on death row.
Among those who, like Gonzales, wanted to be organ donors before their execution was Steven Shelton whom Delaware executed in 1995.
Although the state initially refused Shelton’s request to donate a kidney to his mother, it relented when he threatened to sue. As his lawyer explained after the transplant was completed, “Steven has been very enthusiastic about trying to assist his mother….The decision to do so has been strictly based upon wanting to, in some way, alleviate his mother’s condition.”
But, in what might be a preview of Gonzales’s fate, other death row inmates who wanted to donate organs before their execution have not been allowed to do so.
For example, in 2013, the state of Ohio initially delayed Ronald Phillips’s execution to consider his organ donation request. At the time, Ohio Governor John Kasich expressed support. “I realize this is a bit of uncharted territory for Ohio,” the governor said, “but if another life can be saved by his willingness to donate his organs and tissues then we should allow for that to happen.”
Ohio’s Department of Rehabilitation and Correction had the final authority to decide on his request, and they ultimately denied it. Granting it, the Department said, would lead to an undue delay in Phillips’s execution.
Some who support such denials and oppose allowing death row inmates to donate organs either before or after their execution point to health risks to recipients caused by the prevalence of communicable diseases among prison populations. They also worry that “many prisoners are mentally ill, poor and uneducated—and some are very young—rendering them incapable of giving informed consent.”
Still others say that because of the great inequities in death sentencing, organ donation would exploit racial minorities.
Arthur Caplan, a medical ethicist and another critic of death row organ donation believes that “It’s unethical because this guy who’s being executed raped and killed a 3-year-old. When you donate your organs, there’s a kind of redemption. Punishment and organ donation don’t go well together. I don’t think the kinds of people we’re executing we want to make in any way heroic.”
Unlike Caplan, I think that if this country is going to continue the grim business of execution, it should afford death row inmates as many opportunities for redemption as possible. Doing so reminds us that the people we put to death are human beings with desires similar to any other person.
Caplan’s objections unnecessarily deny death row inmates choices that are allowed to others who are not confined. To refuse to allow those inmates to become organ donors is a further mark of their subjugation.
Moreover, as defenders of death row organ donation note, preventing death row inmates from donating organs hurts potential recipients who might otherwise not receive the help they need. As one of them explains, “My rationale for allowing death row inmates to donate their organs is simple and logical. One more organ donor means at least one life, and typically more lives, saved.”
Like Gonzales, death row inmates should not be prevented from trying to save the lives of others even as their own lives are ended. Speaking about his desire to donate a kidney, Gonzales said, “How can I give back life—I think this could be probably one of the closest things to doing that.”
Organ donation is one way that those we execute can make something valuable come out of their death. That is a desire that any punishment, but especially the punishment of death, should encourage and honor.
