The Kidney Connection

Sadly, it's big news in this country when a governor (or president, for that matter) actually exercises his authority to pardon someone or commute their sentence.  Add in an odd condition for getting that commutation and it's a hard story to avoid.

I speak, of course, about Mississippi governor Haley Barbour's decision to suspend (rather than commute) the sentences of two sisters, Jamie and Gladys Scott, who received life sentences in 1994 for their parts in a robbery that netted $11.  The catch - Gladys must give her kidney to Jamie, who is currently in need of thrice-weekly dialysis (at great expense to the taxpayers of Mississippi, apparently).

The odd condition was proposed by Gladys.  Nonetheless, the condition raises some troubling issues:

"If the sister belongs in prison, then she should be allowed to donate and return to prison, and if she doesn't belong in prison, then she should have her sentence commuted whether or not she is a donor," said Michael Shapiro, chief of organ transplantation at Hackensack University Medical Center in New Jersey and chair of the United Network for Organ Sharing's ethics committee.

Shapiro also points out a potential side effect complication that occurred to me over the weekend - that if organ donation is seen as a ticket out of prison, more inmates will propose it as a means to get out.  Given the horrendous conditions in some overcrowded prisons in this country, that amounts to subtle coercion to "consent" to a medical procedure an inmate would not otherwise agree to.  Or, as Jason Mazzone concludes over at Balkinization:

Yet an organ transfer between siblings, engineered by the state to save it some money, should raise greater scrutiny not less. For if, as the Supreme Court has told us, bargains between criminal defendants and the state are to be treated with reference to principles of contract law, a deal involving kidneys and siblings raises a basic question of voluntariness: it is hard to say no when it's your sister's life on the line.

On top of that, there's another legal issue I've seen lurking but not yet discussed.  According to this report, the sisters have the same attorney representing each of them.  Generally, criminal codefendants having the same lawyer is not a good idea.  Codefendants may have entirely similar goals when it comes to representation.  Nonetheless, each is entitled to independent counsel who has her best interests at heart, even if those interests run contrary to the other defendant.  To put it more starkly, if one defendant wants to roll on the other, having the same attorney represent both presents all kinds of problems.  I'm not saying anything untoward has taken place here - it is most likely a situation where everybody's interests dovetail - but it did set my Spidey senses a tingling.

At the end of the day there isn't much of a chance the issues that this case raise will get any kind of hearing.  Everyone involved is OK with it, after all, and Gladys will not go back to prison if her kidney is not a match for her sister's.  And, in a world where justice often goes wanting, the release of two women from overly harsh sentences is definitely a good thing.  It would be better, however, if their release was based just on that - a recognition of this being a situation where justice needed to be done.  Instead it's baled up with all sorts of issues that are going to lay in wait and explode in some poor schmuck's face down the road.