Guest Post: Vampire Judges and Blood Money: Blood Donation as Criminal Sanction?

Written by Christopher Chew

Monash University

Early one September morning, plaintiffs at a rural Alabama County court in the US, were greeted with an unexpected and highly unusual offer. To quote presiding Judge Marvin Wiggins:

“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.

  • Facebook
  • Twitter
  • Reddit

2 Responses to Guest Post: Vampire Judges and Blood Money: Blood Donation as Criminal Sanction?

  • Paul Treanor says:

    This is unfortunately typical of the propagandistic approach to blood donation, which is so prevalent in western societies. The author claims that “Donating blood benefits the community offended by crime”. It does not, that is self-evidently false. Blood donation, like any organ or tissue donation, benefits the recipient, and indirectly anyone who profits from the improved health of the recipient (an employer, for instance).

    Far from being unproblematic, blood donation is organised on a political, nationalist, and racist basis. I pointed out earlier on this blog, (‘Solving the Organ Crisis Ethically’, August 17) that for instance the US military has first claim on blood donated in European NATO member states. The general public doesn’t know that, they don’t know who does what with their blood donation, and apparently they don’t care. However, it matters for the ethics.

    In the case cited here, the SPLC complaint makes it clear that we are talking about poor defendants, who are unable to pay not simply fines, but legal costs which the local court has imposed on them previously. Very probably, indigent persons in Alabama are among the least likely to benefit from US health care in general, and thus from blood and organ donations. Put simply, any blood they ‘donate’ will not go to them, their family, their friends and their community, as often as it will go to members of upper-income and well-insured families.

    Even where health care is generally available, as in the UK, higher-income and better-educated groups profit more from it than the poor. And that in turn raises the issue of hostility. If you are poor and a member of a hated minority, then the donated blood will probably aid a person who is hostile to you.

    I refuse to give blood, and I have a low opinion of blood and organ donors. At best they have failed to inform themselves of the ethical aspects, at worst they approve of the racist, nationalist, and discriminatory practices, which are standard in blood and organ donation.

    So paradoxically, I understand the logic of using blood donation as a punishment, for some sectors of the population. It can function as an act of oppression directed against a specific category, and as a humiliation of the individual. That doesn’t make it right, however, let alone an appropriate punishment for minor offences, or even debt.

  • Anders Sandberg says:

    One objection might be privacy. When donating the donor has to give medical and other personal information which determines whether the donation can be accepted. In particular, men who have sex with men are deferred as donors. While this is bad news for the openly gay defendant who cannot take the blood donation option (further adding to the discrimination objection), it is a serious problem for the defendant who is in the closet. Either he lies on the test, breaching the FDA rules and taking the risk of donating infected blood (assuming he has not fortuitiously recently had a medical test making him 100% sure he is healthy), or he has to return to the judge saying his offer was rejected.

    Now, the judge might not care about the cause (it could be hepatitis infection, it could be syringe use, it might be being gay) and just act as the defendant was compliant but unable to fullfill the order. Presumably this speaks in their favor, since they *tried* to do something good for the community. But it seems likely the judge will at least infer something about the medical status of the defendant (and information allowing others to make similar inferences will be part of the legal record), breaching medical/personal privacy. And it is not implausible that the judge may actually ask why they were rejected, making the situation even more problematic.

    The key problem here is more on the FDA side than on the judge’s side. But making blood donation a possible penalty seems to cause a dangerous overlap between the medical system, bound by strong privacy and integrity constraints, and the legal system, which is typically public. If punishments cause the accidental or inferential release of non-obvious private and medical information, then they better be very carefully motivated.

Authors

Subscribe Via Email

Affiliations