NCJ Number
133155
Journal
Southwestern University Law Review Volume: 19 Issue: 1 Dated: (1990) Pages: 17-56
Date Published
1990
Length
40 pages
Annotation
This legal article argues for a biomedical engineering alternative to traditional forms of capital punishment that requires capital offenders to be involuntary organ donors.
Abstract
Following a discussion of organ transplantation and the justification of punishment in the criminal justice system, the focus turns to the constitutional perspective of the eighth amendment provision regarding cruel and unusual punishment. It is noted that Supreme Court decisions on the eighth amendment have been uniquely fact-specific. Further, there is nothing in the constituion that expressly defines what standards may or should be applied to determine whether punishment is cruel or unusual. Applying Supreme Court guidelines to the suggested organ confiscation alternative to the death penalty leads the author to conclude that the alternative is not repugnant to the cruel and unusual punishment clause. Whatever pain or distress the capital offender experiences will only be the inevitable pain associated with any surgical procedure. The alternative should be acceptable to the medical profession because implied consent is recognized by law. In addition, the alternative meets the purposes of utilitarian and retributive principles, and it comports with life-preserving principles of justice and fairness. The author contends that the legal system must focus on life-preserving measures rather than on killing those who have killed. She discusses common law and constitutional perspectives on the right to privacy and prisoner rights and compares compulsory organ punishment with castration punishment cases. 209 footnotes