Mississippi Governor Haley Barbour is being widely praised for granting a release from imprisonment to Gladys and Jamie Scott on condition that Gladys “donate” a kidney to her sister. The Scott sisters were sentenced to life 16 years ago for an armed robbery which yielded them $11. The women were eligible for parole in 2014.
Civil rights advocates have sought the two women’s release for some years, arguing that their sentences were excessive. Governor Barbour’s decision has been hailed by Ben Jealous, NAACP President and CEO, as “a shining example” of the way a governor should use the power of clemency.
A primary reason cited by Barbour for his decision is that sister Jamie’s dialysis is costing the state a lot of money. According to Gladys Scott’s attorney, the idea that she donate a kidney to her sister was her own, which is why he included it in the petition for release.
While media reports inevitably provide insufficient facts for robust legal-moral analysis, this story raises issues that should give us pause. First and foremost, I am concerned on Gladys Scott’s behalf that a kidney donation is neither in her short or long-term best interests – I can only wonder whether her own health makes her an ideal donor after serving a 16-year prison sentence. We don’t know what lead to Jamie’s end-stage renal disease, but it is crucial that Gladys know what her own risk for the disease is before she gives up a healthy kidney.
Will her physicians feel comfortable recommending against the surgery if her long-term prognosis is poor? Would such a decision result in the revocation of the prison release, or is the release contingent upon a medical “ok” for the procedure? To what extent will the transplant physicians be required to compromise their own ethical duties to the health of these women to accommodate their desire for freedom? Hopefully, Governor Barbour’s release decision depends upon Gladys’s willingness to be considered as an organ donor, as opposed to her actually having to go through with it.
While I believe it possible that Gladys wishes to donate her kidney to save her sister’s life, the conditions under which she has made this decision are hardly ideal to voluntariness, which our law normally dictates is a necessary condition precedent to organ donation. These women have been incarcerated their entire adult lives, and have likely made very few decisions on their own behalf, much less life and death ones.
Other doubts haunt this scenario. If indeed the Scott sisters merited a suspension of their sentences because they are excessive, then the governor should have made his decision for that reason, thereby enabling the women to resolve how to proceed in addressing Jamie’s kidney failure in the context of their private lives, without state compulsion and outside the glare of the media. I hope they have significant and stable support upon their release – in addition to both of them undergoing significant medical procedures, they may not be well-prepared for successful reentry even in the best of circumstances.
I can’t help but wonder how Jamie Scott’s case will be assessed by an organ transplant committee – whether or not it will say her sister may serve as her donor. But for the unique circumstances of the sisters’ release being conditioned on the transplant, would the sisters be considered strong candidates for the rigors of post-transplant recovery, especially when simultaneously transitioning to living on the “outside”? If Gladys cannot serve as Jamie’s donor, will Jamie be eligible for a stranger donation under most transplant centers’ criteria?
Barbour cites the opportunity to save the state health costs by releasing the sisters to pursue the transplant. If the transplant is both a cost-effective and humane alternative to dialysis, why wasn’t it allowed during the sisters’ incarceration? While the state may be expecting to save money for the sisters’ health care, it is presumably Medicare that will be covering the cost of the transplant and the extremely expensive post-surgical anti-rejection drugs that Jamie will require (although Jamie’s eligibility for Medicare will likely be fraught with hurdles). Thus, a large part of the state’s motivation here seems to be the chance to shift Scott from the state’s Medicaid roll to the federal government’s Medicare program. While this might work out in the end for the Scott sisters, it represents yet another perversity of our fragmented healthcare system.
The Scott sisters must be wonderfully excited about their imminent release, and the possibility of saving Jamie’s life, and I am pleased for them. I am less excited, however, about Governor Barbour’s decision becoming a precedent for other governors.
Kathleen M. Boozang, interim vice provost and professor of law at Seton Hall University, is Hastings Center Fellow. An earlier version of this essay appeared in The Record.