Guest Post: Vampire Judges and Blood Money: Blood Donation as Criminal Sanction?
Written by Christopher Chew
“There’s a blood drive outside, and if you don’t have any money, and you don’t want to go to jail, as an option to pay it, you can give blood today…bring in a receipt indicating you gave blood…as a discount rather than putting you in jail…or the sheriff has enough handcuffs for those who do not have money.”
The plaintiffs had been called before court because of unpaid fines, fees or restitution owing for previously adjudicated cases, mostly minor misdemeanors. Some articles reported that the “discount” consisted of $100 credit towards these unpaid monies, though it is unclear if any actually received this.
Understandably, these revelations have prompted scathing criticism. Arthur Caplan, professor of medical ethics at New York University, declaimed it as “…wrong in about 3,000 ways.” The Southern Poverty Law Centre has filed a judicial ethics complaint against Judge Wiggins, citing a ‘violation of bodily integrity’ amongst a litany of other issues with judicial process.
Evidently, a veritably Biblical plague of ethical issues are associated with the events as they unfolded. Besides potential abuse of judicial responsibilities and infringement on constitutional and legal rights, the ‘choice’ as framed is less-than-subtly coercive, and plaintiffs are given little-to-no time or counselling in considering their options, to name a few.
Yet, I wonder, is there anything inherently wrong with offering blood donation as an alternative penalty, if the current choice is between paying a hefty fine, or spending time in jail? Coverage of this issue notes that blood donations have been ordered infrequently in the past as criminal sanctions, particularly in wartime in the mid-20th century. In more ideal circumstances – perhaps after adequate time for appropriate health screening, counselling, and informed consent – is it plausible that presenting the alternative choice of blood donation as a sanction for petty-to-moderate misdemeanors could be morally permissible?
Consider, firstly, that blood donation as a sanction fits well into many commonly-accepted justifications for criminal punishment. Blood transfusions are a common, often life-saving medical intervention, and thus the blood supply requires constant renewal and shortages are not infrequent. Donating blood benefits the community offended by crime, and plausibly constitutes a just and proportionate punishment under restorative or utiliarian theories. Taking a more retributive slant, the experience of donating blood is moderately unpleasant, involving (pointy!) needles and a respectable loss of blood, which could also constitute a form of deterrence. Of course, there is likely little rehabilitative effect in donating blood – but the same could be said of blunt financial penalties, or incarceration for petty crimes.
Secondly, it is not clear that a blood donation is orders of magnitude worse than fines or time in jail. Donating blood requires an invasive procedure (with needles!) but this does not mean it is analogous to, say, a frontal lobotomy. Over nine million people in the US donate blood annually, many more than once, and the overwhelming majority does so safely. Two recent reviews[i] suggest that the incidence of adverse events are <1%, and are most commonly dizzy spells, variable bruising, and more rarely fainting. Iron deficiency is mainly limited to frequent donors, and serious, persistent complications such as arterial (0.003-0.011%) or nervous (0.0022%) damage are extremely rare. A stay in jail is not without its own very significant risks (Dr. Tom Douglas has published an excellent article[ii] arguing that incarceration is at least as bad as some invasive procedures), and even fines, if hefty, imposes a physical, mental, and social burden.
One objection (credit to my classmate Mia) is that an offer would be discriminatory, as some cannot donate blood due to pre-existing health conditions (e.g. anaemia, infectious diseases, blood disorders). Yet the flat-fine-for-all system is equally discriminatory, since the incidentally wealthy have far greater capacity to pay than the unfortunately poor. Adding the option of donating blood is, at least, not more unfair than a flat fine. In addition, while these persons cannot benefit, they are arguably left with the current choices and are not worse off.
Another substantial objection (credit to Prof. Jonathan Moreno) is that there are intuitive parallels with other, more troubling, cases. Donating blood in lieu of a fine, or incarceration, might seem ominously close to similar arrangements involving participation in medical experimentation – or even more disturbingly, donating other non-essential organs (skin grafts? a kidney to escape death row?).
Regarding the former, it seems to me that there are sufficient differences between donating blood and being a research participant to avoid this worrying analogy. Both (may) involve invasive procedures, but blood donation is a well-defined, limited procedure with small, well-known, and predictable risks. Medical research, on the other hand, can be more open-ended, with less well-known and more unpredictable risks to participants.
Blood donation does technically involve transplanting human tissue, but it is also seems sufficiently different from other ‘organ donations’ to stop short of the spine-chilling slippery slope. Blood is, for most people, a truly self-regenerating ‘organ’ – the elements lost in a donation are typically completely replenished within hours to days. No other commonly-transplanted human tissue has similar capacities. Indeed – given that mature red blood cells and platelets lack DNA, a cell nucleus, and most normal internal cell structures – perhaps a better comparison would be to sacrificing hair, or nail clippings.
In summary, then, offering the choice of donating blood, as an alternative to financial penalties or incarceration, (done properly) is possibly not as morally problematic as it first sounds. Donating blood, as a criminal sanction, ticks many of the boxes of popular theories of criminal justice, and is arguably not necessarily more cruel, unusual, or dangerous than either fines or jail-time. It is also sufficiently separable from participation in medical research and donation of other non-essential organs to avoid a slippery slope.
I can envision, of course, a host of other objections I do not have space to explore here, particularly concerning the social context of the criminal justice system, the population that is most frequently sanctioned for petty misdemeanors, and the issue of coercive offers. Many of these, though, would seem to highlight already-existing injustices in the criminal justice system, and it does not seem obvious that the option of donating blood is clearly worse than existing alternatives. Whether this suggests that we should all have the option to roll up our sleeves the next time we run a red light, or that the existing system needs reform, is a valid question.
[i] Lin, C. K., et al. “Current issues in donor health and safety.” ISBT Science Series 9.1 (2014): 223-227
Amrein, Karin, et al. “Adverse events and safety issues in blood donation—A comprehensive review.” Blood reviews 26.1 (2012): 33-42.
[ii] Douglas, Thomas, et al. “Coercion, incarceration, and chemical castration: An argument from autonomy.” Journal of bioethical inquiry 10.3 (2013): 393-405.