Want an Early Release in Massachusetts? One Organ Please.

A couple of weeks ago, five members of the Massachusetts House of Representatives proposed a bill that Gizmodo‘s Jody Serrano recently described as “dystopian.” The five cosponsors of the bill (Carlos González, Judith A. Garcia, Shirley B. Arriaga, Bud L. Williams and Russell E. Holmes) want to create a program that allows incarcerated people in Massachusetts to literally trade bone marrow or an organ for time off their sentence.

Specifically, HD.3822 would create “a Bone Marrow and Organ Donation Program.” According to the bill, this is how the program would work: “The Bone Marrow and Organ Donation Program shall allow eligible incarcerated individuals to gain not less than 60 and not more than 365 day reduction in the length of their committed sentence in Department of Corrections facilities, or House of Correction facilities if they are serving a Department of Correction sentence in a House of Corrections facility, on the condition that the incarcerated individual has donated bone marrow or organs.”

The response to the proposal on social media was, perhaps unsurprisingly, a unique combination of humor and outrage. “Bad news: You were just sentenced to prison in Massachusetts,” FAMM’s President, Kevin Ring, tweeted. “Good news: You have internal organs and bone marrow to spare and a new bill would allow you to trade those for up to a year off your sentence!”

The likelihood of HD.3822 becoming law is, frankly, low. According to another tweet from Ring, it has “zero chance” of passing. What HD.3822 will do, however, is serve as a tangible example of how the country with the highest incarceration rate in the world views incarceration.

The last four years have made it clear that we can’t successfully implement incentive programs in prisons.

The proposal to incentivize bone marrow and organ donations by rewarding incarcerated people with time off their sentence comes at an interesting time. As you probably know if you’re reading this article, Congress passed and President Donald Trump signed the First Step Act into law in 2018. The First Step Act represented a rare instance of political bipartisanship at a time when Congress otherwise seems to move at a snail’s pace.

One of the most important parts of the First Step Act was its Time Credits Program. Under the First Step Act’s Time Credits Program, federal prisoners can earn time off their sentence in exchange for their successful participation in evidence-based recidivism reduction programming and productive activities. In other words, Congress incentivized recidivism reduction and productivity by rewarding incarcerated people with time off their sentence. In this way, the First Step Act puts recidivism reduction and productivity on the same pedestal as Massachusetts’ HD.3822 puts bone marrow and organ donations.

Even though the Bureau of Prisons has had more than four years to successfully implement the First Step Act’s Time Credits Program, no one can really dispute that the program still isn’t running on all cylinders. Unelected bureaucrats in the Bureau of Prisons and Department of Justice deliberately waited until the law’s deadlines to complete each step of the implementation process — despite the fact that the implementation was literally called a “phase-in” period.

Even now that the implementation process is complete, implementation itself is not. Some in Bureau of Prisons custody have received all of the First Step Act Time Credits they’ve earned (and, sometimes, more than they’ve earned). Others have received some they’ve earned but are still waiting for the full amount. And others are completely in the dark.

If we can’t keep track of program and activity participation, could we really keep track of organ donations?

To be fair to the Massachusetts lawmakers who proposed HD.3822, the struggles with implementing the First Step Act’s Time Credits Program are occurring at the federal level. Massachusetts has had its own incentive program for participating in programming and activities for several years. And, although it is safe to assume implementation of that program wasn’t flawless, it has certainly garnered less criticism than its new federal counterpart.

But the challenges that come with keeping track of programming and activities pale in comparison to those presented by documenting bone marrow and organ donations. What happens if a state prisoner in Massachusetts donates bone marrow as part of The Bone Marrow and Organ Donation Program but the donation doesn’t get recorded? Will the prisoner have to convince a judge that he or she did, in fact, donate bone marrow?

That’s one of the most common problems we’re seeing with First Step Act Time Credits. People claim that they’ve participated in certain programs and activities, and then the Bureau of Prisons denies it. Most of the time, courts refuse to intervene, deterring to the Bureau as a federal agency. What if that happens when it comes to a bone marrow or organ donation?

These are, of course, hypothetical questions about a hypothetical law that probably won’t ever exist. But the willingness of some politicians to propose swapping bone marrow and organs for early release at the same time as the First Step Act’s Time Credits Program is continuing to stumble out of the gate provides us with an interesting insight into how politicians really look at incarceration. And that’s especially true when you think about what other proposals lawmakers have come up with when it comes to prisons.

Talking about truth-in-sentencing laws and “organ harvesting” at the same time feels … a little … gross.

HD.3822’s Bone Marrow and Organ Donation Program is making headlines at the same time as lawmakers are, as the Arkansas Times’ Lindsey Millar put it in this article earlier this week, “[l]eaning into mass incarceration….” Arkansas is one of countless jurisdictions in the U.S. currently considering a “truth-in-sentencing law” aimed at keeping people behind bars as long as possible no matter what they do while they’re in there.

As Millar explains, two Republican lawmakers in the state, Representative Jimmy Gazaway and Senator Ben Gilmore, recently proposed the Truth in Sentencing and Parole Reform Act of 2023, a bill that, Millar writes, is supposed “to add more prison beds, lock more people up for longer and curb the use of parole.”

Arkansas is already a world leader in mass incarceration, coming in with the fifth highest incarceration rate in the U.S. and, therefore, the world. But locking up more people than all but four states hasn’t translated to much in terms of safety for the state. Look no further than Gov. Sarah Sanders’ own campaign website for proof.

While running for governor, Sanders emphasized the fact that Arkansas is third in the U.S. for murder rates, first in the U.S. for child sex-abuse cases and second in the U.S. for rape.

Part of the Truth in Sentencing and Parole Reform Act in Arkansas is aimed at making sure people stay in prison for their full prison term regardless of their behavior in prison or participation in programming or activities. Arkansas already has a good reputation for bone marrow and organ donors though. So an incentive program like the bill in Massachusetts proposes is probably off the table too.