Give blood or go to jail: Judge combines medical lunacy with constitutional violations in Alabama

The New York Times reported on Monday that Judge Marvin Wiggins of Marion, Alabama, is offering destitute people who owe court fees a dangerous choice: donate blood, or risk going to jail. According to audio posted by the Southern Poverty Law Center, recorded in September on the day of a blood drive, Wiggins allegedly told those with fines: “if you do not have any money, and you don’t want to go to jail – you can give blood today”, allegedly adding: “consider that a discount”.

Wiggins’s choice is a terrible, likely unconstitutional and ethically dubious proposition, which could have potentially mortal consequences for the public blood supply. This kind of rampant capitalism, in which a local court essentially says: ‘value will be extracted from you, akin to squeezing blood from a stone’ is a barbaric violation of the rights of the poor.

This is all legal, moral and medical lunacy.

Keep in mind that a 1983 Supreme Court case, Bearden v Georgia , prohibits judges from “imprisoning people who are too poor to pay their legal debts”. This still happens , sadly, even though the Bearden ruling effectively made debtors prisons illegal. While judges are allowed to mandate alternatives to incarceration for indigent debtors, such as performing community services, biomedical ethicists would probably say forcing them to give up their blood under threat of imprisonment doesn’t fly.

Related: Debtors prisons are illegal in America. Missouri locked me up in one anyway | Nicole Bolden

The Southern Law Center has filed an ethics complaint against Judge Wiggins for enacting “a violation of bodily integrity”, and the New York Times quotes a medical ethicist calling this plan “wrong in about 3,000 ways”.

But let’s pretend for a moment that we live a psychotic, demented world where judges are – at least initially – legally allowed to demand the blood of the poor like state-sanctioned vampires as a “discount” against their fees. It would still be unconstitutional and hazardous for three reasons, as anyone who has studied the Americans with Disabilities Act, last summer’s gay rights ruling in the Supreme Court and the history and safety of our blood supply can tell you.

No reading of the Americans with Disabilities Act (Ada) would allow for different sentencing to apply to people with or without various medical conditions. In the US, any person trying to give blood is subjected to the FDA donor history questionnaire . When you donate blood, you are asked if you’re feeling well and healthy that day; if you’re taking certain medications; if you’ve ever had a blood transfusion; and if you’ve ever had cancer, hepatitis, malaria, HIV/AIDS and/or a host of other diseases. Usually when you answer yes to any of these, you’re not allowed to donate blood.

In Wiggins’s world, those who can’t donate blood would have to go to jail. This would be a blatant, gross violation of the Ada as a judge’s sentencing guidelines cannot discriminate against those with cancer or who are HIV positive.

When you donate blood, you are also asked questions like whether you have gotten a tattoo; been in jail; had sex with someone who has been in jail; had sex for money or had sex with someone who’s had sex for money. If you’re a man, you’re asked if you’ve had sex with a man; and if you’re a woman, you’re asked if you’ve had sex with a man who’s had sex with a man.

The latter part of this excludes sexually-active gay and bisexual men . It is unlikely, after last summer’s Supreme Court ruling on same-sex marriage, that Wiggins’s “choice” could allow for a kind of sentencing which would give straight people a get-out-of-jail-free (or for blood, anyway) card for which gay and bisexual men are ineligible. Especially as the Supreme Court ruled, as lawyer Roberta Kaplan put it : “any court, anywhere, state or federal, could [not] possibly tolerate discrimination against gay people on any basis”.

Even if this insanity were constitutional, it would still be dangerous for anyone who ever needs blood. All blood is screened, but part of the reason the blood supply stays safe is because it has the power to turn people away when they answer questions honestly. We moved away from encouraging people to donate blood for payment, because that creates incentives not to answer questions about behavior and health honestly.

Wiggins turns this longstanding practice on its head. He gives “donors” an incentive – a reasonable incentive, given that their alternative is winding up behind bars – to lie about their actions and medical histories, just so they could get that receipt and avoid jail.

The answer to the crisis of the indigent being jailed is not to blackmail the poor into opening up their veins. The answer is to stop over-arresting, over-incarcerating and over-fining the poor in the first place.

guardian.co.uk © Guardian News and Media 2015

Listen to audio, uploaded to YouTube by the Southern Poverty Law Center, below: