May 28, 2003 -- Sometimes crime can pay, even on death row, if you're in need of a new kidney.
Thanks to the state of Oregon, a law-abiding citizen in need of a kidney transplant may have to die so that death-row prisoner Horacio Alberto Reyes-Camarena can live.
Reyes-Camarena, 47, has been on Oregon's death row since 1996, when he was convicted of repeatedly stabbing 32- and 18-year-old sisters he met in a farm-labor camp. The older woman survived 17 stab wounds to testify against him.
Every year, as Reyes-Camarena appeals his conviction, Oregon — which is struggling through budget cuts and having a tough time providing a basic education for its children and health care for its poorer citizens — pays a reported $121,000 a year to keep Reyes-Camarena on dialysis. Last month, his prison doctor determined he was a good candidate for a kidney transplant.
With the state funding his medical care, Reyes-Camarena could be placed on a transplant waiting list ahead of others who did not commit any crimes and become the state's first death-row inmate to receive an organ transplant.That has outraged crime victim advocates, who cannot understand how the justice system can "reward" convicted murderers at the expense of innocent patients.
"There's no doubt — there's no debate — that people have lost their lives while murderers have received transplants," said Dudley Sharp, resource director of Justice For All, a Houston-based victims' rights group that supports the death penalty.
"It is unconscionable that we would put those who have not contributed anything to society but have cost society millions of dollars ahead of hardworking citizens that are not even on the list [for transplants] because they can't afford the insurance," Sharp said. "It's not fair and studies need to be done, and it's something our state legislatures need to think about."
Legal and Medical Conundrum
In 1976, the U.S. Supreme Court ruled that prisoners were entitled to the same medical and dental treatment as everyone else in their community. Prisons that withhold necessary care from inmates can be held liable for violating constitutional bans against cruel and unusual punishment.
But critics have argued that efforts to ensure prisoner rights have compromised the lives of law-abiding taxpayers who are paying for inmates' medical bills. It has posed a conundrum for law enforcement officials, who must punish the convicted and ensure their care behind bars.
"We in Oregon provide very high level of health care for all our prisoners, whether they are on death row or not. We take better care of our prisoners than deserving poor people," said Joshua Marquis, district attorney for Oregon's Clatsop County.
"We really do have to provide for their [prisoners'] care; we are legally bound. So it's more of a moral issue than a legal one," he said. "Personally, I find it abhorrent that someone like Mr. Reyes-Camarena could receive a transplant before anybody who is more deserving."
Prisoner health care has also posed a dilemma for physicians who are ethically bound to help all patients but are frustrated when they see budget cuts knock arguably more deserving donor recipients off the transplant list. Cuts to the Oregon Health Plan have forced some hospitals to remove poorer, uninsured potential candidates from organ transplant lists or keep them off the list entirely because they fear the patients will not be able to pay for the expensive drugs needed to keep their bodies from rejecting the new organs.
The cuts have also caused confusion over whether patients will be covered for their transplant or the post-transplant drugs they will need, because the plan will not cover the cost of both. Reyes-Camarena's case has shaken the resolve of some doctors who say they would have argued six months ago that he deserved equal-opportunity care. But that was before the budget cuts.
"His case has set off a series of ethical issues here," said Dr. Susan Tolle, director of the Center for Ethics in Health Care at Oregon Health & Science University in Portland. "A lot of people are angry here because prisoners across the nation are provided a basic health-care package while there are poor working-class families that cannot even afford a package. Many ask, 'Why should we provide health care to a death-row inmate?' I would turn that around and ask, 'Why can't we as a society provide a health-care package for the working poor?' "
Tolle said that Reyes-Camerena's case has ignited outrage because he took a life and would be benefiting from someone who volunteered to give life. Many prisoners receive transplants from relatives who are matching donors. But, Tolle said, it is not the medical community's job to further punish an inmate.
"I would tell people to steer away from talk about who's worthy and who's not worthy," said Tolle. "Is it part of someone's sentence to not have their wounds treated and their tuberculosis go on untreated? No, I think not. Their punishment is their sentence. This man should not die for reasons of medical complications caused by neglect."
Playing Judge, Jury and God
Reyes-Camarena's case is not unprecedented: In California last year, a jailed felon received a heart transplant that cost taxpayers $1 million and another inmate received a kidney transplant that cost $120,000. In Georgia, a convicted murder underwent heart bypass surgery costing $70,000.
According to the most recent statistics by the National Commission on Correctional Health Care, inmate medical-care expenses nationwide have risen at least 7 percent since 1997 because of rising prison populations and longer life span of inmates. In Oregon alone, the state budget for prison health care rose from $41 million from 1997 to $60 million in 2003.
Both death-penalty advocates and opponents agree that prisoners should not receive preferential health-care treatment. But death-penalty opponents do not believe condemned prisoners should subjected to extraordinary punishment — by being deprived necessary health care — either.
"It [a transplant] should be based on normal health-care criteria, not because someone's on death row," said Richard Dieter, executive director of the Death Penalty Information Center. "I don't think people should be penalized because they happen to be on death row. People in prison have the right to the same health care that is applied on the outside."
The irony of Oregon state officials trying to keep alive a death-row prisoner like Reyes-Camarena was not lost on Dieter. Normal health care should not be denied to death-row inmates, Dieter said, because there have been too many cases of wrongfully convicted and condemned prisoners.
"There are a lot of contradictions within the death penalty that don't make a lot of sense," Dieter said. "Keeping someone alive just so that you can kill him … it just doesn't make a lot of sense. We start getting into trouble when we start making these superhuman judgments."
However, others argue that prisoners — particularly death-row inmates — sacrificed their right to the same privileges as law-abiding citizens when they committed their crimes. Justice For All's Sharp said that he wouldn't deny prisoners their right to a organ transplant — but he would put them at the bottom of the potential recipient list.
"States could consider legislation that would put them at the end of the list," Sharp said. "That would probably spark lawsuits. I know this is something medical ethicists have debated and considered. … Do murderers deserve the same treatment as those who contribute to society? Socially, I'd say no. But on legislative and medical ethics level, it's something that needs to be discussed."
Not a Matter of Cost
Transplant legislation regarding death-row prisoners has already been considered in Washington state. In 1996, when reports came out that death-row prisoner Mitchell Rupe was on the waiting list for a liver transplant, several state residents protested and threatened to revoke organ-donor pledges.
In response, the state Legislature passed a bill to stop funding organ transplants for a death-row inmate. Then-Gov. Mike Lowry vetoed the bill, and it was later reported that Rupe's liver transplant story was fabricated.
Arguably, a transplant for Reyes-Camarena could save Oregon money in the long run. According to Oregon Correctional Department statistics, transplant surgery could cost the state between $80,000 and $120,000 and eliminate his need for costly dialysis treatment.
However, the medication to keep Reyes-Camarena from rejecting a new kidney would cost between $500 and $1,200 a month — and he intends to keep appealing his conviction and sentence.
"This is one of those cases where money really isn't the issue," said Marquis, the district attorney. "In Oregon, prisoners spend at least 10 years on death row. There are prisoners who have been on death row for 15 years and haven't even filed their final notice of appeal. So, with Reyes-Camarena, he'll be on death row for at least the next 10 years before he comes up for execution — at the earliest."
As of this month, according to the United Network for Organ Sharing, almost 57,000 Americans, including 192 Oregon residents, were waiting for kidney transplants. Reyes-Camarena is fully aware of his "privileged" status as a death-row prisoner in his wait for a new kidney.
"I know people on the outside," he told Reuters news service. "They need things, and they don't get it. Sometimes being here is better."