Quagmire upon Quagmire - And Finally the Real Reason

I thought I was done with this piece of news for a while, but then along came Wesley J. Smith and Art Caplan.

The news at hand is about Ron Phillips wanting to donate his organs, DRC saying 

Fie!

and Governor Kasich saying

Hey, maybe we can save some lives here.

As I said, I thought I was done - at least until they did or did not harvest and did or did not kill.  Thing is, I'd forgotten about the internet.

So a few bits of background before we get to Messers Smith and Caplan and the point of this post.

• I don't know Ron Phillips.  I've never represented him.  I've never met him, never spoken to him on the phone or received a letter from him.  I hear, from time to time, from friends and relatives of those on the row.  Never a word about Phillips.  I do know his lawyers, but I've never spoken to them about his crimes.  Nor have I spoken with them about his desire to give away parts of his body.
• Phillips brutally raped and murdered Sheila Marie Evans, a three-year-old child.  (I take it that he's factually guilty.) To describe what he did as reprehensible is to sugar-coat it.  
• I don't think he should be executed.  I don't think anyone should be executed.  There are moral, philosophical, practical, and political reasons.  We shouldn't do it to him, and we shouldn't do it for us.  That's not because I offer any excuse.  There is none.

OK.  Here's the deal.  Phillips was scheduled to be killed yesterday.  The Governor and the courts both declined to intervene in his execution.  Maybe there were more legal avenues to pursue, but the reality was that they would almost surely fail. Nothing's certain in this world except that sooner or later we will all leave it, but that Phillips' execution was imminent was pretty clear.

Boswell quoted Dr. Johnson.

Depend upon it, sir, when a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.

And so it is that Ron Phillips said that he wanted to donate his kidney to his mother (who had kidney disease) and his heart to his sister (who had a heart condition).  And while they were at it, he said, take the rest of me for whoever.

He wasn't asking for a reprieve.  He figured they'd take the parts after they killed him.
Was it a cynical ploy for some last minute sympathy?  Did he hope it would change the landscape and get him a stay, or even a life sentence (life sans heart would undoubtedly be measured in microseconds, but still)?  Did he actually think, like dying Edmund in King Lear,

                       some good I mean to do,
Despite of mine own nature.

Did he hope that would somehow atone?  That the family of Sheila Marie Evans would now believe him a good man?  That the gates of heaven would open and he'd be welcomed with open arms and invited to sit on the right hand?

Damned if I know.

What I do know is that there are concerns, legitimate moral concerns, with taking organs from the condemned.  Might jurors be more inclined to sentence folks to die if they thought they were also including organ donation in the sentence? Can the offer of donation ever be fully voluntary when there's at least some chance, however small, that it might influence a clemency decision - or even lead to a reprieve?  Are doctors somehow complicit in the execution if they take organs - either before or after?

And there are practical concerns involving logistics, the quality of the prospectively donated organs, possibly changing execution methodology, the willingness of some who might need organs to accept them, and, again, medical ethics. 

I said the other day that all of those can be overcome or resolved with sufficient will.  Vicki Werneke, a lawyer who does late-stage capital work in Ohio, commented on my last post.

I predict that ODRC will now have to develop procedures by which the guys on the row can make such requests, etc.

Could be.

Anyway, that's where we were when the ethicists weighed in. They said all the things I'd mentioned.

• Jurors might see it as a "perverse incentive" to kill, said Dr. Brooke Edwards of the Mayo Clinic Transplant Center.
• It's almost impossible to see a donation as free from "coercion or consideration of personal gain," said Anne Paschke of the United Network for Organ Sharing.

Wesley J. Smith, purportedly a "bioethics attorney" in Columbus, Ohio (though not listed as an attorney by the Ohio Supreme Court) and a "special consultant" to the Center for Bioethics and Culture (whatever and wherever that might be), and who does indeed write the Human Exceptionalism blog for the National Review on line, wrote

Here’s the problem: The requested donation must be judged in the context in which it was made. This is not a truly freely chosen action. But for being condemned to die, there is no indication that he would have been willing to donate.

If we are to have a death penalty–and I don’t want to get into that question here–we should not allow execution to be tied to a utilitarian benefit for society. And that is precisely what is happening here.

And then there was Art Caplan.  He's the founding head of the Division of Bioethics at NYU's Langone Medical Center.  He's a serious guy.  At the Bill of Health Blog published by the Petrie-Flom Center of Harvard Law School (can't get much more serious than that), he said,

Are we ever capable of laying a stupid idea to rest in America? Apparently not. The latest tempest in the ever-resurrecting world of solutions to the shortage of organs is donation by executed prisoners. The Governor of Ohio held up a plan to execute a man on death row when he requested that his organs be donated to his mother and sister each of whom have serious health problems.

According to the AP,

“Ohio Governor John Kasich on Wednesday stayed the execution of convicted killer Ronald Phillips to assess whether Phillips’s non-vital organs or tissues can be donated to his mother or possibly others. Phillips, 40, was scheduled to be executed Thursday for the 1993 murder of 3-year-old Sheila Marie Evans.

“I realize this is a bit of uncharted territory for Ohio, but if another life can be saved by his willingness to donate his organs and tissues, then we should allow for that to happen,” Kasich said in a statement.”

The Governor need not have bothered. What child rapist and murderer Ron Phillips had in mind was donating his heart and kidneys to his family. He has shown no interest in helping anyone else nor did he ever mention tissue donation.

That last part is, apparently, not entirely true.  His letter to the Governor does, according to press reports, also invite the taking of other organs.  (I doubt that he mentioned tissue, but I don't actually know.)

Notice that the focus, despite the language Smith and Caplan use, has shifted from whether the donation offer is truly voluntary to underlying issues that have nothing to do with that moral/ethical issue. Mustn't let executions offer a "utilitarian benefit" says Smith who is regularly concerned in his blog with avoiding things that might actually encourage organ donation.  And Caplan would reject the offer because Phillips only wants to help his mother and sister rather than the larger society.  

Yet even that's a sham.  Here's what Caplan told Julie Carr Smyth and Amanda Lee Myers of AP.

"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," Caplan said. "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."

Which is, of course, the essence of the matter, the real reason.  People who do what Phillips did, we can't allow them to be redeemed.  We must keep them monsters or we can't kill them.

Prisons, they were called penitentiaries for a reason.  They were to be places of penitence.  We wanted redemption.  We hoped that last words would be acknowledgements of guilt, exhortations to the gathered throng (including large numbers of pickpockets and purse snatchers, who apparently weren't deterred) to be better people.  We hoped to rehabilitate.

Raymond Chandler, who wrote the Phillip Marlowe detective novels, famously said,

In everything that can be called art there is a quality of redemption.

As in art, so in life.  Or so we might hope. But redemption isn't compatible with dehumanization, with monstrosity.  The Golem must be destroyed - which is a hell of a lot harder if the Golem turns out to be just another, deeply flawed guy.

Should Ron Phillips be allowed to donate his organs?  If he's serious.  If he wants to do it.  Sure.

And if it leads us to think twice about why we want to kill someone who'd do that - even as he faces his last days? 

Fuck.  That's all the more reason to let him.