Friday's Legal Memo

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Supplying the International Demand for Human Transplant Organs is Big Business in China

The demand for transplantable organs is the main reason why organ procurement is so pervasive in China. [204] It is common knowledge that high-paying customers will receive a prompt organ transplant in China. [205]Former transplant patients have reported that they were expected to hand out “red envelopes” filled with money to every doctor they saw.[206]

The money is shared with both prison and court officials. [207]It has been reported that foreign nationals pay upwards of $200,000 for an organ transplant performed in China, using Chinese donors. [208] Sadly, there is also a reported case where a transplant recipient died because the essential post-operation care and treatment ceased because the patient ran out of money.[209]

Due to the high demand for organs, the large number of death-row prisoners, the improved medical technology, and the huge profits, selling organs from executed prisoners in China will continue. [210] The situation is exacerbated because many of the people who are key participants in the harvesting of the organs are poorly paid prison and hospital administrators.[211]

Executions for Profit Have Extra Benefit — Intimidation and Control of the Citizenry

China’s organ procurement from the bodies of executed prisoners is not only a lucrative money-maker, it is also a method to coerce and intimate the general population into submission of government control.  [212] Actually, since the discovery of the lucrative organ transplant market, the number of crimes punishable by death has increased.[213]

Chinese web bulletins boards have reported information discussing the sale and corruption of the “organ business.” [214] Chinese websites advertising organ transplants openly admit to obtaining their organs from executed prisoners. [215] One website specifically targeting foreigners announced on the front page that viscera or soft interior organs including brain, lungs, and heart could be found immediately. [216] This website also thanked the support of the Chinese government, specifically naming the Supreme Demotic Court. [217]

Secrecy in the Chinese government

China has maintained an air of secrecy concerning the sale of organs harvested from executed prisoners, concealing the transfer of profits. [218] China strove to keep the 1984 order on the use of prisoner cadavers confidential in order to avoid international backlash. [219] Even official figures regarding death sentences and executions in China are kept secret from the public and foreigners. [220] Additionally, international human rights organizations are not permitted to visit prisoners in China. [221] Until recently, the Chinese government emphatically denied the legal procurement of organs from Chinese prisoners condemned to death.[222]

The only people that would be present at the scene of an organ harvesting are the victim and the perpetrators. [223] No bystanders would be allowed to witness the event. [224] Afterward, no body would be found, and no autopsy would be conducted. [225] The body would be cremated, and the evidence vanished. [226] The operating room would be left like any other empty operating room. [227] Cremation of the body prevents any evidence from surfacing regarding the harvesting of organs. [228] In addition, any wills created by condemned prisoners are subject to official censorship by the government.[229]

The Supreme People’s Court issued a secret regulation concerning a prisoner’s last will and testament that states, “Those parts which are slanderous in nature or which make reactionary statements are not to be handed over to the person’s family . . . sections complaining about grievances or alleged injustices are not to be passed on to the person’s family.” [230] When one executed prisoner’s brother asked to see the documentation of his brother’s consent to donate his organs, the Chinese officials would not give him the information. [231] Furthermore, the government warned the brother that if he did not keep silent, he and his family would face retaliation.[232]
Continue Reading In Depth Look at the Law: Secrecy in China – Successfully Hiding the Truth About Executions for Profit from the World

Corruption of China’s Communist Party

It has been reported that there is widespread corruption among Chinese government officials including graft, bribery, use of official position for personal gain, blackmail, misuse of public money, and extortion. [161] One source cites graft and bribery as constituting over 50% of the economic crimes in China.[162]

Under the current Chinese government, the rights of individuals are always subject to the drafting of new legislation that may suspend those rights. [163] Moreover, violations of those rights guaranteed by the Chinese constitution are generally not enforceable against the government because of the lack of checks and balances in the system. [164]

The Communist Party always takes precedent over the independent rule of law. [165] Chinese citizens may only exercise their right to freedom if their behavior does not infringe upon the interests of the society and the state. [166] Research has indicated that Chinese citizens who engage in promoting freedom of expression are arbitrarily arrested, detained, tortured, and convicted. [167]

Many crimes involving expression of ideas or even an association with an idea or movement that differs from the party line are classified as political crimes. [168] The ensuing trials are held in secret, excluding observers and even lawyers, under the excuse of maintaining state secrets.[169]

Economic gain from organ harvesting

China sells organs of executed prisoners on a large scale for profit under the guise of state secrets. [170] China has a system that readily sentences, condemns, and executes human beings so that their organs can be sold by government officials for personal gain. [171]

Arrestees are often denied immediate access to legal representation following their detention. [172]  Chinese police even take extreme steps to limit defense attorneys from assisting their clients. [173]

For example, Chinese police severely limit the length and number of times a defendant is allowed to meet with his attorney, require the attorney to brief police concerning the nature of the conversation prior to the meeting, cancel meetings that are intended to cover topics that are not preapproved, and severely restrict the attorney’s access to the prosecution’s evidence. [174]

Torture Is An Accepted Practice

Moreover, torture is often used to elicit confessions. [175]  International organizations have documented the widespread abuse and torture of prisoners occurring at all types of detention facilities and legal institutions in China. [176]

One individual reported that he was forced to confess to a crime after undergoing torture perpetrated by the police that included electrical shock applied to the toes, fingers and genitals, beating with heavy chains and sticks, and injection of hot pepper, gasoline, and ginger into his nose. [177] Thus, it is not surprising then that China refuses to accept the Optional Protocol to the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, which allows for regular international inspection of detention centers.[178]

Injustice is Inherent in China’s Criminal Justice System

In addition to the arrest and detention of prisoners, trials are often held before defendants are provided adequate time to prepare a defense. [179] Defendants do not have a guaranteed right to cross-examine witnesses. [180]

In addition, verdicts and subsequent sentences are often determined by private committees prior to a proper trial. [181]Unfortunately, it is quite common for a court to have reached a verdict before the defendant even enters the courtroom. [182]
Continue Reading In Depth Look at the Law: China Death Vans and China’s Widespread Corruption – There is No Fairness in China’s Criminal Justice System

Due to reports of the torture and anguish of prisoners and the secrecy surrounding the death penalty’s application in China, it is virtually impossible to independently verify that any executed prisoners truly gave consent for the use of their organs.[100]

Chinese prisoners are generally not notified of their impending execution until just hours before it occurs.[101] As a result, donor consent is rarely obtained in spite of it being a lawful requirement. [102]The family members of the condemned prisoners are also rarely informed of the execution.[103]

Even when the family members are notified of the execution, they are rarely informed of the prearranged plans for organ extraction. [104] In the rare instances where the family members are notified, they are offered money in advance to authorize the use of the prisoner’s organs. [105] If the family refuses the payment, it is then common for the government to provide the family with a large bill following the execution to recoup losses ranging from food and lodging for the prisoner to the cost of the bullet used to perform the execution.[106]

One death row prisoner was witnessed lying on the floor in solitary confinement with all of his limbs stretched out and shackled to the ground by his wrists, ankles, and even his neck. [107] He was fed one meal a day.[108]  Only after he “consented” to donating his organs was he unshackled from the ground. [109] However, he was still in leg irons and handcuffs.[110]

It has also been reported that prisoners who are healthy and have useful organs are often pushed to the front of the waiting lists for executions.[111] In essence, once a prisoner has been deemed fit for an organ transplant, the prisoner becomes nothing more than a warm object sheltering an organ for some other waiting and paying person.[112]

Chinese ideology

The underlying ideological principles of China’s social and political culture justify the use of organs from executed prisoners. [113]Society as a whole is deemed more important than individual rights. [114] Because of the organ deficit for transplantation and the demand from high-paying foreigners, China justifies the use of these prisoners’ organs for the overall good of the country. [115] The Chinese government considers the use of death row prisoners for organ transplants charity.[116]

The criminals are considered bad people deserving of their death sentence. [117] In producing the death, the prisoners create waste that can be used to help others continue their lives, hence charity. [118] Even hospital and prison employees deem the system of retrieving organs without consent just a way to pay back the state for the expense of the prisoners’ care while incarcerated.[119]
Continue Reading In Depth Look at the Law: China Death Vans and Harvesting Prisoner Organs for Profit

Organ harvesting is a government business in China. [77]

At least ninety percent of all organ transplants performed in China come from executed prisoners. [78] Only the government has the power to carry out these executions, and therefore, only the government can control the organ trade.[79]

Without the death penalty in China, the entire system of organ harvesting would be nonexistent. [80] Recently in 2006, both the Vice-Minister of Health in China and senior transplantation specialists finally admitted that the vast majority of organs used for transplants were harvested from executed prisoners.[81]

Different people in the government play an integral role in the organ transplant process.[82]

The judges and other court officials speed up the process from appeals to death sentence, which ensures that prisoners are available for the optimum time to extract organs for waiting patients. [83] Court officials inform doctors when death sentences are handed down, so they can contact the prisons to make matches for waiting patients. [84] Prison guards and other officials allow hospital staff into the wards to test prisoners to determine appropriate donors for waiting transplant patients.[85]

Many times, prisoners are subjected to a large variety of medical screening tests prior to execution to determine the compatibility of their organs for transplantation. [86] In these instances, medical personnel are strictly forbidden from revealing the purpose of these screenings.[87]

The prison guards also set the execution dates and ensure that family members are unaware of the execution until after-the-fact. [88] The guards also allow the doctors to perform the organ extractions immediately after execution directly at the execution site. [89] In fact, medical personnel are routinely informed of the date, time, and location of executions in advance, so they are prepared for the immediate extraction of organs for transplantation.[90]

Deliberately Botched Execution and Harvesting Organs From the Living

There have also been credible reports of deliberately botched executions to postpone brainstem death to aid in the retrieving of the organs while the blood is still circulating through the body.  [91] It has been reported that organs such as kidneys are removed the night before the scheduled execution. [92]
Continue Reading In Depth Look at the Law: Death Penalty Organ Harvesting is a Government Business in China

This is third part of our new Friday Legal Memo Series – In Depth Look at the Law, where we’re focusing on an international horror that is not getting enough attention. In China, people are being executed inside mobile death vans, vehicles that drive from village to village. First, the victim is killed inside the…

The next entry in our Friday series — Friday’s Legal Memo, an In-depth Look at the Law — educates us on how capital punishment is administered in China. 

Its author is our invaluable legal intern, Sin-Ting Mary Liu, and her qualifications for providing us with this trusted work are:

EDUCATION & TRAINING

JURIS DOCTOR CANDIDATE, Nova Southeastern University, Expected Graduation 2010

GPA – 3.72

Class Rank – 5 (Top 2%)

Honors
• Dean’s List
• Fall 2007 Highest Grade Award -Legal research and writing
• Spring 2008 Highest Grade Award -Legal research and writing
• ILSA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW, Staff Member – editing, source pulling, and Bluebooking multiple journal articles
• Nova Southeastern University – Shepard Broad Law Center Merit Scholarship Award

Activities
• Phi Alpha Delta (PAD) – Member
• American Bar Association (ABA) – Student Member
• Asian Pacific American Law Students Association (APALSA) – Member

Special Areas of Legal Interest
• Criminal Law
• Employment Law
• Biotechnology
• Family Law

BACHELOR OF SCIENCE IN ADVERTISING, University of Florida, 1994
• Minor in East Asian Languages and Literature

DALE CARNEGIE TRAINING COURSE, 1997 – 1998
Continue Reading Author of Series on China’s Death Penalty: Sin-Ting Mary Liu

At this juncture, we’ve got lots of criminal defendants needing constitutionally-guaranteed representation, and an overwhelmed public defender’s office as well as a beleaguered OCCCRC. So, who’s next at bat? The private attorney licensed by the State of Florida.

Let’s consider the complex criminal case. Major felonies, multiple defendants. Criminal cases that involve more than two indigent co-defendants (or any case where both the Public Defender and the OCCCRC both have a conflict of interest) are handled by private criminal defense attorneys, who are then paid by the government for their time and expenses. Chapter 2007-62, § 27.40(2)(a), Fla. Stat. (2007).

How Big Was the Loss of Attorneys Willing to Take Appointments after 2007? Huge. HUGE.

Earlier, we discussed how the 2007 revision to the appointment statutes caused many criminal defense attorneys to take their names off the county lists of attorneys voluntarily making themselves available for appointment. It was not because these attorneys didn’t want to represent the poor people of Florida – the changes in the statute made it impossible for them to do so. Many defense attorneys simply could not afford to do the work and stay open for business.

One news report has shown that after the Legislature’s action in 2007, the appointment list for the Tenth Judicial Circuit dropped sixty percent (60%), leaving just one (yes, 1) lawyer who was legally qualified to defend someone, as lead attorney, in a capital case. (Don’t you know that is one busy lawyer?)

Practically speaking, in the criminal courtrooms of Florida, defendants continue to come before the bench and announce themselves as unable to pay for legal counsel on their own. According to Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 791 (1963) and its progeny, these folk are still deserving of legal assistance (the proverbial “effective assistance of counsel” under the 6th Amendment) and the government must provide them with an attorney. The judge has a legal duty he must meet.
Faced with Gideon, what are Florida Judges doing? Throwing attorneys under the bus sounds harsh, unless you’re the attorney caught in the crossfire. Because that judge has to find an attorney somewhere, and the Legislature isn’t giving that judge much of a choice.
Continue Reading In Depth Look at the Law: The Judges’ Dilemma: They Have to Meet the Constitutional Mandate of an Indigent Defendant’s Right to Effective Assistance of Counsel

Today, in part two of our three part series: the three drugs that make up the Florida execution cocktail are discussed in detail. Again, much of the language used here can be seen in any number of defensive motions filed in capital punishment matters across the state today.

1. Thipental Sodium – the First Drug to be Administered

Thiopental sodium is the first drug to be administered during an execution by lethal injection in Florida. As a general anesthetic, thiopental sodium poses special risks because it is so short-lasting that for any number of reasons it can cease to operate as sufficient anesthesia long before the other drugs cause the death of the condemned.[1] Think about that.

It stops working within minutes.

In an affidavit submitted during litigation in Tennessee, Dr. Dennis Geiser, the chairman of the Department of Large Animal Clinical Sciences at the College of Veterinary Medicine at the University of Tennessee, swore under oath that:

the dosage of thiopental sodium must be measured with some degree of precision, and the administration of the proper amount of the dosage will depend on the concentration of the drug and the size and condition of the subject. Additionally, the drug must be administered properly so that the full amount of the dosage will directly enter the subject’s blood stream at the proper rate. If the dosage is not correct, or if the drug is not properly administered, then it will not adequately anaesthetize the subject, and the subject may experience the untoward effects of the neuromuscular blocking agent . [Further], under Thiopental Sodium the anesthetic effect is extremely short-lived, and will be effective for surgical restraint and anesthesia for a period of only five to seven minutes.

Affidavit of Dr. Dennis Geiser, in the case of Abu-Ali Abdul Rahman v. Bell, 226 F.3d 696 (6th Cir. 2000), cert. granted on other grounds, 535 U.S. 1016, cert dismissed as improvidently granted, 537 U.S. 88 (2002), on remand on other grounds, ___F.3d___, 2004 WL 2847749 (6th Cir. Dec. 13, 2004) (en banc) (emphasis supplied).

It actually heightens sensitivity to pain.

Drug manufacturers warn that without careful medical supervision of dosage and administration, barbiturates like thiopental sodium can cause paradoxical excitement and can actually heighten sensitivity to pain. See Physicians Desk Reference, 50th Ed. 1996 at 438-440. Manufacturers warn against administration by intravenous injection (hereinafter AIV) unless a patient is unconscious or otherwise incapacitated. Id. Thus, there are serious problems with the first drug, the anesthetic, actually operating to anesthetize the person being executed sufficiently or for long enough to prevent suffering caused by the subsequent two drugs. Denno, supra, at 95-98.
Continue Reading In-Depth Look at the Law: Does the Florida Death Penalty by Lethal Injection Violate the Constitution? (Part 2)

The mitigating circumstances that can apply in any given first degree murder case are those set forth in Florida Statute § 921.141(6):

1. § 921.141(6)(a): The defendant has no significant history of prior criminal history.

2. § 921.141(6)(b): The capital felony was committed while the defendant was under influence of extreme mental or emotional disturbance.…

At the outset, death is different.

In State v. Dixon, 283 So. 2d 1 (Fla. 1973), the Supreme Court of Florida upheld the constitutionality of the death penalty statute. The court found that “death is unique punishment in its finality and in its total rejection of the possibility of rehabilitation.” As such, the court confirmed that it was the intent of the legislature to reserve application of the death penalty “only to the most aggravated and least mitigated of the most serious crime.” Accordingly, the Florida Legislature put into place a special process with safeguards so that the death penalty is applied properly after conviction of a capital crime.

Multi-Step Process Between Conviction and Imposition of the Death Penalty

A separate multi-step process exists between conviction and the imposition of the death penalty. After a defendant is found guilty of a capital offense subject to the death penalty, the first step is a second trial to determine whether death will be imposed. At this trial, the jury hears evidence concerning aggravators, circumstances that weigh toward death, and mitigators, which weigh in favor of mercy.

The defense and prosecution can present new evidence supporting these circumstances. The jury then makes a sentencing recommendation based on these aggravators and mitigators. Florida, unlike many other states, does not require that the death recommendation be unanimous. A simple majority, a single person, is all it takes for a recommendation of death.

The Fifteen Aggravating Circumstances As Defined by Florida Statute

The aggravating circumstances that can apply in any given first degree murder case are limited to those set forth in Florida Statute § 921.141(5). These circumstances are limited to fifteen possible aggravators:
Continue Reading In Depth Look: Death in Florida