By Richard Kibbey, Esq., and David Lamos, Esq.
As the clock ticks, the number of new COVID-19 infections rise. While promising theories are emerging over potential vaccines and drug treatments, the stark reality is that without large-scale human experimentation of those new medications, the public will remain at risk. State and federal prisoners may hold the key to finding a cure for this pandemic.
The National Institutes of Health recently announced a need to find 400 volunteers to undergo a study that will provide clinical results for the drug Remdesivir as a COVID-19 treatment. Similar large-scale testing would be necessary for other drug treatments under consideration. Finding volunteers may prove unsuccessful given the health risks to the volunteer in light of what typically is a nominal financial offering by the lab or drug maker. However, a large reservoir of potential clinical volunteers stands ready, located throughout the country, in state and federal prisons.
To be sure prisoner volunteers would have to give informed consent of potential health risks and side effects before they are included in a test group. Current federal rules governing prisoner use for scientific experimentation allows it so long as the testing exposes the prisoner to "minimal risk" of harm. That regulation can easily be waived or modified by Congress or the Bureau of Prisons in the case of emergencies, which COVID-19 would seem to present.
Historically, the testing of prisoners to find cures for disease is not new. Gen. Douglas McArthur, the supreme commander for Allied Powers in Japan, readily accepted for the benefit of the United States the scientific results achieved by the Japanese in their human testing on conquered people during World War II. The ethics and legality of human testing of prisoners was also the basis for the Nuremberg Code, which set out guidelines for medical research experimentation on prisoners. Chief among those guidelines is informed consent and that the risks be justified by the anticipated benefits.
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It is anticipated that prisoners would readily volunteer to be included in testing in return for a reduction in, or commutation of, their sentences of imprisonment. Commutation can be fast-tracked by state governors or the White House.
There would be no shortage of prisoner applicants for testing. According to the Prison Policy Initiative, in 2019 the United States had nearly 2.3 million citizens incarcerated in state and federal prisons. In those prisons are inmates who possess medical and nursing degrees – perfect candidates to assist in the experiments and testing. Dr. Samuel Mudd, convicted and imprisoned for aiding John Wilkes Booth after the assassination of President Lincoln, received a presidential pardon for his medical assistance in stemming the outbreak of yellow fever plague in his prison.
Eligibility requirements for prisoner volunteers can assure that only non-violent prisoners reap the benefit of being included in such experiments, such as prisoners serving harsh minimum mandatory drug sentences. Thus, little residual danger to society would occur when such prisoners gain freedom after the scientific experimentation ends.
Giving a prisoner the chance to repay his or her debt to society by volunteering to participate in testing and clinical trials would serve the greater good for both the prisoner and society. The alternative is to continue to warehouse these prisoners at great expense to the taxpayer while simultaneously exposing the prisoner to inadvertent infection of the virus when COVID-19 hits the inmate population nationwide.
In sum, prisoners offer the greatest potential and the quickest means to finding a viable vaccine and cure for Covid-19.
In times of crisis, the unthinkable is thinkable. We need to consider all avenues to speed research and treatment for the benefit of us all.
Richard Kibbey and David Lamos are criminal defense attorneys practicing law on Florida's Treasure Coast.