It’s difficult to be shocked by the criminal justice system. Decades of brutal policing and ballooning prison populations have led to an increasing public awareness that there is not a lot just about our justice system. But last week, a truly shocking bill was introduced in Massachusetts. Democratic state Reps. Carlos González and Judith García introduced legislation that would allow incarcerated people to go home early—if they “donated” their organs.
Specifically, the bill would “allow eligible incarcerated individuals to gain not less than 60 and not more than 365-day reduction in the length of their committed sentence” if they “donated bone marrow or organ(s).” Gonzalez argued that the bill was a step towards advancing racial equity in health care and making it easier for people of color to obtain transplants.
Predictably, the bill has generated attention and caused shock and outrage. In a society where organ sales are forbidden, this proposal sounds uncomfortably like an effort to harvest organs from incarcerated people.
Putting aside bigger questions about healthcare in Massachusetts or the ethics of organ sales (the topic of longstanding philosophical debates), the bill sheds a cold and ugly light on incarceration in the United States. Whether it passes or not, the proposed legislation highlights two pathologies of U.S. criminal policy: the dehumanization of incarcerated people and the careless use of long sentences.
First, it’s worth examining the view this bill takes towards incarcerated people. Members of the general population aren’t allowed to sell their organs or exchange them for services and social benefits. So why treat incarcerated people differently? Organ sales are banned because of concerns about exploitation and the ethics of forcing people to choose between cash on the one hand and bodily integrity on the other. So, why are those concerns any different when it comes to incarcerated people?
The bill’s sponsors may well believe that it’s wrong that Massachusetts—like most other states—prevents incarcerated people from donating their organs. If that’s the concern, though, they should have introduced a bill directly targeting the problem. Right or wrong, such a bill could have been understood in terms of humanizing incarcerated people—they should have the same ability to make choices about their bodies as people in the general population.
Or, maybe the bill’s sponsors believe that the need for donors justifies a broader market for organs. Again, though, if that were their view, then the bill should have focused on everyone in Massachusetts.
Instead, the bill explicitly sets the incarcerated population apart. And, in doing that, it reinforces a troubling impulse in society—to see incarcerated people as less deserving of respect, dignity, and rights than people outside.
A felony conviction used to mean “civil death”—people essentially lost all their rights. Today, incarcerated people technically still enjoy some constitutional protections, but many of those protections are largely illusory. Conditions in jails and prisons nationwide are brutal. Medical care is shoddy, nutritious food is hard to come by, and sexual abuse and violence are common. And, society has done much to signal that people with criminal records are no longer considered full members of the community. From disenfranchisement to restrictions on housing and employment post-release, being a “criminal” often makes people second-class citizens.
Indeed, there’s something horrific about the recognition that incarceration is so bad that people would choose to undergo invasive surgery rather than spend another few weeks inside. Instead of asking why people are held in such inhumane conditions, though, the bill doubles down on the misery and desperation of incarceration.
All of which brings us to the second issue: By allowing incarcerated people to shave up to a year off of their sentences, the bill inadvertently highlights the cruel irrationality of how we punish.
Why only a year off of sentences and not more? Is it because that’s how much time an organ is worth or because that reduction represents a calculated balance between public safety and public health? What if someone donates two organs? Could they get two years off their sentence?
The numbers feel arbitrary in a way that drives home the arbitrariness of punishment in the first place. If sentences actually were calculated carefully and we as a society had concluded that it was necessary for a person to be incarcerated for a given time, then it’s not clear what justifies the reduction. If we admit that people aren’t actually so dangerous that they need to serve that extra year, though, then it raises the troubling question of why the sentences were so long in the first place.
And, how exactly can we rationalize the one-year limit on reductions? I’m skeptical that it tells us anything about the actual need for incarceration, as opposed to reflecting cynical political maneuvering—allowing reductions that might be perceived as too large would lead to opposition from tough-on-crime voters and politicians.
I have a hard time believing that the bill will pass. But the fact that it was introduced in the first place is an important reminder that excessive criminal punishment is dehumanizing all of us.