US Attorney And Federal Judge Believe Making Money Is A Crime In Itself: US Federal System Treats Capitalism As A Crime

Levy Izhak Rosenbaum was sentenced to 2 1/2 years in federal prison by US District Judge Anne Thompson for buying human kidneys from people who were willing to sell one of their kidneys and then selling the human kidneys to people who needed kidney transplants. It is a crime under federal law to buy and sell human kidneys for use as transplants. There is a shortage of available kidneys from organ donors to people who need kidney transplants. Consequently, there is a long waiting period for kidney organ donations and some people die before they receive a new kidney. Offering monetary compensation to potential donors is a way to increase the supply of available kidneys for use as transplants and shorten the waiting time. Payment increases the number of people who become organ donors.

Unlike other crimes involving contraband, such as illegal drugs like heroin and meth, where the growing, manufacturing, selling, buying, possession and use is a crime, it is not illegal to use human kidneys for transplants. It is not illegal to possess another human donor's kidney. It is not illegal to use another human donor's kidney in one's body. It is not illegal to request a donor to give you his/her kidney for your own or someone else's transplant. It is not illegal to give up your own kidney for use as someone else's transplant. It is not illegal for hospitals, doctors, nurses and other medical staff to make money doing a transplant.

It is only illegal for the person who needs the transplant to pay a donor for the kidney.

Crime Of Using Free Market Capitalistic System

So Rosenbaum's crime is that he used the free market system to make a profit by paying organ donors for their kidneys and by receiving money from people who needed kidneys. His crime is he was a capitalist meeting the legal needs of two willing people, one who needed a kidney to live and one who wanted money and was willing to sell his/her kidney.

Just as easily, the courts could have found legal doctrine to invalidate the law against buying and selling organs for transplants. A willing court could have used property rights, privacy rights, limitations of the commerce clause, etc to invalidate a law that does not prohibit the transaction but only prohibits the profiteering from the transaction. Making a profit should not be a crime, especially when payment increases the supply of available kidneys for use as transplants, shortens the waiting time and saves lives.

From Bloomberg, "Kidney Broker Sentenced To Prison As Donor Recalls Doubts" by David Glovin and David Voreacos:

After hearing [Elahn] Quick’s account of how [Levy Izhak] Rosenbaum paid him $25,000 for a kidney, US District Judge Anne Thompson sentenced Rosenbaum to 2 1/2 years in prison.

"It’s a kind of trading in human misery," Thompson said of the black-market kidney trade. Rosenbaum "charged a fee" for kidneys....***Rosenbaum, an Israeli immigrant, pleaded guilty last year to violating a 1984 U.S. law banning the sale of human organs. He admitted that he charged sick Americans as much as $160,000 for a kidney. Prosecutors said he’d been selling kidneys since 1999.

Defense lawyers yesterday urged Thompson to sentence Rosenbaum to probation and community service. They and a former Rosenbaum client who bought a kidney told the judge that he was “an angel” who helped save the lives of people close to death from kidney disease. They said he earned little from his decade- long kidney scheme.

"Saving a life should not end up in a jail sentence," Richard Finkel, an attorney for Rosenbaum, told the judge.

Prosecutors called for a stiff prison term.

"Rosenbaum is a profiteer who saw an opportunity in the black-market of kidney sales," Assistant U.S. Attorney Mark McCarren said in court. Rosenbaum probably earned "hundreds and hundreds of thousands of dollars" in profit while "exploiting" the poor whose desperate need for cash forced them to sell their kidneys, he said. [Emphasis Added.]

Sadly, the court and the prosecutor had to resort to penalizing the capitalistic motive because that is the only part of the kidney organ transaction between the willing parties that is illegal.