Abstract

In Massachusetts, a proposed bill would reduce the sentence of those incarcerated who become living donors of either organs or bone marrow. We outline two concerns with such a proposal, which relate directly to the content of the proposal (as opposed to broader debates about payment for organs and validity of consent obtained from the incarcerated). The first of these concerns is about equality of opportunity. The proposal provides the opportunity for a sentence reduction for some but not for others – and the distribution of these opportunities reflects circumstances largely beyond the control of the incarcerated. The second concern is that the proposal may conflict with why we punish in the first place. The proposal is at odds with the non-consequentialist general deterrence defended by Tadros, retributivism, and communicative theories of punishment. Among the theories examined, only the purely consequentialist version of general deterrence might find the practice palatable. The upshot of the latter observation is that the proposal presupposes the truth of a purely consequentialist theory of punishment and sets aside others.