This is the classical case of a voluntary experiment in prison. It will not always be possible or necessary to fix the advantage in the same manner; the official promise of the prison institute may be sufficient to exclude an arbitrary denial of the promise. Examples for that are the leprosy experiments on a person condemned to death, and the continuous experiments in the penitentiary Bilibid. (Becker-Freyseng 60a, Becker-Freyseng Ex. 59.)
These experiments must, be considered admissible as experiments where a chance is given.
The examples from medical literature, however, show that these general conditions for voluntariness were not always fulfilled. So we refer only to the experiments in the penitentiary San Quentin with streptococci on 25 convicts in 1946. (Becker-Freyseng 60a, Becker-Freyseng Ex. 59.)
Accordingly, even experiments carried out on persons without their consent must be considered admissible.
Involuntariness
There are some examples of experiments carried out abroad which were carried out as compulsory experiments on prisoners without their consent. As an example may be mentioned the poisoning experiment carried out in Manila on 11 prisoners sentenced to death. (Becker-Freyseng 60a, Becker-Freyseng Ex. 59.) The persons subjected to experiments were executed immediately after as part of the experiment. The malaria experiment carried out on 800 prisoners has to be mentioned too. According to an explicit statement in the press, no advantages were granted them in return. (Karl Brandt 1, Karl Brandt Ex. 1.)
The method described by the witness Ivy was introduced later on as a practice of the administration.
It is evident that in these cases no declarations of voluntariness could have been made because no criminal who is sentenced to death will make himself available first for experiments where he has no chance, unless there is some hope of a favor shown to him. But in the case of poisoning experiments there was no question of commutation of the sentence because the purpose of the experiment was the study of the effect of poison on corpses. Thus, execution was included as part of the experiment.
Concerning the malaria experiments the press notice explicitly said that no privileges of any kind were granted, thereby referring to the task of the prisoners, as “social parasites”, to help fight the mosquitoes as equal social parasites.
One must conclude that compulsory experiments are admissible, but one cannot draw the conclusion that the state is authorized to use the prisoners at random for any experiment whatever by way of punishment.