Exchanging a Kidney for Freedom: The
Illegality of Conditioning Prison Releases
on Organ Donations
Jennifer L. Visconti
I. INTRODUCTION
In a total prison population of over 7.2 million, 70% of convicted
criminal defendants remain under the correctional authority's jurisdiction
but are not in physical custody.' These convicted criminals are released
early by receiving a pardon or a suspended sentence. 2 Some prisoners may
even be released because of a terminal illness, usually termed a
"compassionate release," "humanitarian parole," or a "medical release." 3
Individual states address releases for terminally ill prisoners using different
terms,4 but a compassionate release is generally defined as a conditional
release, which suspends a sentence on a particular condition or conditions
1.
(2009),
BUREAU OF JUSTICE STATISTICS, CORRECTIONAL POPULATIONS IN THE U.S., at 2
available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cpus09.pdf.;
U.S. CENsus
BUREAU, NAT'L PRISONER STATISTICS SUMMARY OF SENTENCES POPULATION MOVEMENT
2009, http://bjs.ojp.usdoj.gov/content/pub/pdf/nps1b_09.pdf (last visited Sept. 22, 2011)
(providing the census form used by prison systems to detail the number of inmates on
conditional releases, commutations, probations, or supervised mandatory releases).
Pardon is defined as "the act or an instance of officially nullifying punishment or
2.
other legal consequences of a crime." BLACK'S LAw DICTIONARY 1221 (9th ed. 2009). A
suspended sentence is "a sentence postponed so that the convicted criminal is not required to
serve time unless he or she commits another crime or violates some other court-imposed
condition. A suspended sentence, in effect, is a form of probation." Id. at 1486.
Marjorie P. Russell, Too Little, Too Late, Too Slow: CompassionateRelease of
3.
Terminally Ill Prisoners-Is the Cure Worse than the Disease?, 3 WIDENER J. PUB. L. 799,
801 n. 10 (1994) (listing various terminology for a compassionate release).
4.
See id. at 818-36 (surveying states with statutes regarding compassionate releases,
medical furlough, medical parole, etc.); see also William B. Aldenberg, Bursting at the
Seams: An Analysis of Compassionate-ReleaseStatutes and the Current Problem of HIV
and AIDS in U.S. Prisons and Jails, 24 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 541,
564-81 (1998) (surveying compassionate release statutes of Massachusetts, California,
Texas, and New York).
199
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set out in the release, and is also known as receiving parole. 5
Mississippi categorizes a medical release as a conditional release which
results in a conflated medical release with a suspended sentence.6 Recently,
two sisters serving life sentences were released from prison custody when
Governor Haley Barbour indefinitely suspended their sentences. Jamie
Scott had been receiving medical treatment for a terminal kidney illness.8
Her sister, Gladys Scott, offered to donate a kidney.9 The distinction
between the two releases is that Jamie Scott received a compassionate
release due to her terminal illness and Glad s's release was conditioned on
an event, making it a conditional release.' Conditioning a release on the
donation of an organ raises both ethical concerns of whether an organ
donation has turned into a contract for freedom, and legal concerns of
whether Mississippi violated any laws in forming this type of conditional
release." Furthermore, donations suggest altruistic motives, but the donorsister was released only because of her offer to give up her kidney. This
would suggest that rather than "donate" her kidney, she relinquished
possession of her kidney to the State, thus bargaining for her freedom.
Part II of this Note provides background about the Scott sisters' releases
and kidney transplants. Part III examines conditional releases in
Mississippi and the financial burden of prisoner medical care, an
underlying reason for the sisters' releases. Part IV discusses prisoners'
rights to receive medical treatment and any right, or lack thereof, to donate
organs; failed legislation; and federal law and international guidelines
prohibiting the sale of organs. Part V argues that requiring a prisoner to
donate an organ as a condition of release violates a federal law prohibiting
the transfer of organs for valuable consideration-freedom-and thus
violates social norms and public policy. This type of condition alters the
traditional nature of organ donation, which by its very name connotes the
giving of something for free, from a gift to an alienable good. Part VI
concludes that conditional releases requiring the relinquishment of an organ
5.
BLACK'S LAW DICTIONARY 1403 (9th ed. 2009); see, e.g., Types of Releases, TEX
DEP'T OF CRIMINAL JUSTICE, http://www.tdcj.state.tx.us/parole/parole-releases.htm (last
visited Sept. 8, 2011).
6.
MISS. CODE ANN.
§ 47-7-4
(2011).
7.
Statement by Haley Barbour, Gov. of Mississippi, Regarding the Scott Sisters'
Release (Dec. 29, 2010), availableat http://www.governorbarbour.com/news/20 10/dec/12.
29.1 Oscottsistersrelease.html [hereinafter Barbour].
8. Id.
9.
Id.
See supra notes 2-5 and accompanying text.
10.
But cf Whitney Hinkle, Giving Until it Hurts: Prisonersare Not the Answer to the
11.
National Organ Shortage, 35 IND. L. REv. 593, 593 (2002) (arguing that prisoners,
regardless of their prison status-executed or living-should not become organ donors).
EXCHANGING A KIDNEY FOR FREEDOM
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201
will have grave consequences by setting illegal precedent for future
conditional release terms or by creating a state-approved market for organs.
Prison release standards should be reformed to prevent governors, judges,
or prison officials from conditioning a prisoner's release on the donation of
an organ.
II. SENSATIONAL SCOTT SISTERS AND TRANSPLANT SCIENCE
A. Scott Sisters: Crime, Sentencing, and Release
The Scott sisters made national headlines in late 2010 because of an
unusual term of their release: one sister must donate a kidney to her
terminally ill sister. 12 At the time of their release, the sisters had each
served sixteen years of their life sentences for armed robbery convictions. 13
The sisters had three accomplices at the robbery that netted only $11; these
accomplices, aged fourteen to eighteen at the time of the robbery, were
released after serving just two years. 14 The sisters maintain their
innocence. 15
Mississippi Governor Haley Barbour attempted to justify the unusual
condition of their release. He stated, "The Mississippi Department of
Corrections believes the sisters no longer pose a threat to society. Their
incarceration is no longer necessary for public safety or rehabilitation, and
Jamie Scott's medical condition creates a substantial cost to the State of
Mississippi."l 6 Governor Barbour further stated that "at [my] request, the
Parole Board subsequently reviewed whether the sisters should be granted
an indefinite suspension of sentence . . . and have concurred with my
decision to suspend their sentences." 17 Governor Barbour's statement
implies that the sisters' release was actually motivated by the underlying
financial burden of Jamie Scott's state-funded care of approximately
$200,000 per year.' 8 Officially, however, Gladys's release was
"conditioned on her donating one of her kidneys to her sister" and Jamie
was released on account of her terminal illness. 19
The controversy of the sisters' sentencing for an $11 robbery is not the
12.
Barbour, supra note 7.
13.
Id.
14.
Bob Herbert, Op-Ed., 'So Utterly Inhumane,' N.Y. TiMES, Oct. 12, 2010,
http://www.nytimes.com/2010/10/12/opinion/12herbert.html.
15.
Id.
16.
Barbour, supra note 7.
17.
Id.
18.
Id.; see Timothy Williams, Jailed Sisters are Released for Kidney Transplant,
N.Y. TIMEs, Jan. 7, 2011, http://www.nytimes.com/2011/01/08/us/08sisters.html.
19.
Barbour, supra note 7.
CRIMINAL AND CIVIL CONFINEMENT
202
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focus of this Note, although it has received media attention. 20 Rather, the
focus is how a prisoner contracted to exchange an organ for freedom and
the illegality of this type of condition.21
B. The Science of Kidney Transplants
The first kidney transplant was performed in the 1950s. 22 Although it
may alleviate a patient's sickness, a transplant is not a cure for kidney
failure. 23 A transplant is part of a treatment that requires life-long
medication. 24 When a person's kidneys fail, "harmful waste builds up in
[the] body, [a person's] blood pressure may rise, and [the] body may retain
excess fluid and not make enough red blood cells." 25 A kidney transplant
allows the person to regain proper bodily functions. 26 During a kidney
transplant, the new healthy kidney is attached to existing arteries and veins
so that blood flows through it.2 7 A person's diseased kidney may remain in
the body unless it causes infection or high blood pressure, and then it must
be removed.28
The success of the transplant depends on the match of the recipient to
the donor. There are three factors that may indicate whether a donor is the
right match: (1) blood type, (2) antigen markers, and (3) antibodies. 29 A
donor can be a living donor, such as a family member, which decreases the
waiting period to receive a kidney. 30 Family members are likely to be good
matches, but there is no guarantee of this.31 In addition, the organ is usually
20.
See id. Some suggest that the sisters' release is a way to rectify a harsh sentence
and that the sentence was inhumane in the first place. See Herbert, supra note 14.
21.
See generally Laura-Hill M. Patton, A Callfor Common Sense: Organ Donation
and the Executed Prisoner,3 VA. J. Soc. POL'Y & L. 387, 418-24 (1996) (discussing the
viability of executed prisoners as a source for organ donation); Donny J. Perales, Rethinking
the Prohibition of Death Row Prisonersas Organ Donors: A Possible Life-line to those on
Organ Donor Waiting Lists, 34 ST. MARY'S L.J. 687, 687, 703-11 (2003) (discussing death
row prisoners as a source for organ donors with particular focus on Texas's organ donation
policy).
Treatment Methods for Kidney Failure: Transplantation, NAT'L KIDNEY AND
22.
UROLOGIC DISEASE INFO. CLEARINGHOUSE, NAT'L INST. OF HEALTH, http://kidney.niddk.nig.
gov/kudiseases/pubs/transplant/ (last updated Sept. 2, 2010).
23.
Id.
24.
Id.
25.
Id.
26.
Id
27.
28.
Id.
Id.
29.
30.
Id.
Id.
31.
Id.
EXCHANGING A KIDNEY FOR FREEDOM
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203
in better condition as it comes directly from the donor's body and the need
for organ transportation has been eliminated.3 2 Kidney disease is three
times more likely to occur in racial and ethnic minorities, and because
organ donation by minorities is lower, it is often best to have a family
member donate to the recipient to decrease the chance of organ rejection.3 3
C.
The Future of the Scott Sisters
Websites, blogs, and Facebook groups rallied for the sisters' release. 34
"Free the Scott Sisters," a blog proclaiming their innocence, provides news
updates about the sisters and requests financial donations to help the sisters
with their expenses. 35 The blog states that following her release, Jamie
Scott was hospitalized in early 2011 with "excessively high potassium
levels" 3 6 and was informed that she must lose 120 pounds before she
receives a kidney transplant. 37 Her donor-sister, Gladys, was told she must
lose fifty to sixty pounds. 38 This weight loss is necessary because there is
an increased risk of organ rejection if the recipient is obese. 39 At the time
of the sisters' releases in December 2010, the sisters were determined to be
a blood-match, but no tests had been performed to determine if the sisters
were tissue-compatible. 40 It was not determined who would pay for the
transplant surgery because the sisters did not have health insurance. 4 1
Therefore, it is uncertain whether Gladys will fulfill the condition of her
prison release: completing the donation within one year of her release.
III. BALANCING MONETARY AND HUMANITARIAN CONSIDERATIONS
A. Mississippi's Conditional Release Statute
Mississippi does not have a formal compassionate release process or a
32.
33.
34.
Id.
Id.
Help Free the Scott Sisters, NAACP, http://www.naacp.org/page/s/scottsisters
(last visited Oct. 1, 2011); FREE THE SCOTT SISTERS! (Oct. 1, 2011), http://freethescottsisters.
blogspot.com/; "Free the Scott Sisters," FACEBOOK, http://www.facebook.com/group.php?
gid=37635066437&v=info (last visited Oct. 1, 2011).
35.
FREE THE Scorr SISTERS!, supra note 34.
36.
Id.
37.
Id
Jimmie E. Gates, Freed Scott Sister Must Lose 120 lbs., USA TODAY (Jan. 26,
38.
2010), http://www.usatoday.com/news/nation/2011-01-26-scott-sisters-mississippiN.htm.
39.
Id.
40.
Holdbrook Mohr, Sister's Kidney Donation Condition of Parole, MSNBC (Dec.
30, 2010), http://www.msnbc.msn.com/id/40845726/ns/us-news-crime-and-courts/t/sisters-kidney-donation-condition-parole/.
41.
Williams, supra note 18.
CRIMNAL AND CIVIL CONFINEMENT
204
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system for ill inmates; instead, Mississippi law provides for a conditional
medical release. 42 If an offender has served more than one year of his or
her sentence and has a permanent condition, the commissioner and the
medical director may place him or her on conditional medical release. 4 3
The medical director must certify that the offender is "(a) suffering from a
significant permanent physical medical condition with no possibility of
recovery; (b) that his or her further incarceration will serve no rehabilitative
purposes; and (c) that the state would incur unreasonable expenses as a
result of his or her continued incarceration.' 4 4 Once released, the State is
no longer responsible for providing medical treatment to the now-released
offender. 45
B.
The Financial Burden of Prisoner Medical Care
Although the main concerns of a corrections system are the
rehabilitation and deterrent effect of jail-time, 46 society is concerned with
the quality of care for terminally ill prisoners and believes they should die
with dignity. 47 "State legislatures have not only examined the issue with a
view to cost containment ... as one method of reducing overcrowding, but
also with humanitarian concerns in mind,"48 balancing the financial
stability of the corrections system with general opinions of death and
dying. Mississippi's solution was to create a conditional release statute with
a specific medical provision. 49
The Mississippi statute clearly outlines the medical factors that
determine whether a prisoner qualifies for a compassionate release. 50 It
tries to balance the humanitarian factor of releasing ill prisoners with
42.
MISS. CODE ANN. § 47-7-4 (2011).
43.
Id.
44.
Id.
45.
Id.; see infra Part IV.A and accompanying text.
46.
Justin Brooks, Addressing Recidivism: Legal Education in CorrectionalSettings,
44 RUTGERS L. REV. 699, 703 ("Historically, the four goals of corrections have been
incapacitation, retribution, deterrence, and rehabilitation. In recent years, however, there has
been a shift in the balance among these goals, with the punitive aspects overwhelming
rehabilitative efforts.").
47.
Russell, supra note 3, at 804-05 n. 19; see John Dawes, Dying with Dignity:
Prisoners and Terminal Illness, 10 ILLNESS, CRisis, & Loss 188, 188-203 (2002)
(identifying criteria that must be met for a compassionate release to be effective for the
prisoner and his or her family: early prisoner identification; advocate appointment; an
available appeals process; and awareness of the compassionate release provision).
48.
Russell, supra note 3, at 804-05.
49. See § 47-7-4.
50.
Id. (stating it must be significant, permanent, physical condition from which you
cannot possibly recover).
EXCHANGING A KIDNEY FOR FREEDOM
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205
societ%' s concern for safety and the State's interest of lowering prison
costs. 1 Concerns of cost savings appear to be a greater concern than
humanitarian reasons; in the case of the Scott sisters, Jamie Scott's
treatment was costly, a factor Governor Barbour was quick to mention in
his statement.52 The Mississippi legislature has even used the sisters'
situation as an example of extreme cost-savings in recent proposed
legislation. 53 The State's concern for cost-savings becomes even more
evident when one learns the sisters were not confirmed to be a match prior
to accepting Gladys's organ donation. 54
C. Unfair Outcome if the Sisters Remained in Prison?
Perhaps the criticisms of the Scott sisters' releases would be different
had the transplant taken place while the donor-sister remained imprisoned.
Some could argue that it is unfair for one sister to remain in prison while
the other is released when they committed the same crime and received the
same sentence. This argument is weak because criminal defendants are
often sentenced differently or released before others who have committed
the same crime. 5 5 Additionally, there is actual legal support for Jamie
Scott's release: a Mississippi statute. 56
If either sister remained imprisoned, then the State would be responsible
for their medical care as required by the Eighth Amendment. 57 The cost of
an uncomplicated kidney transplant is approximately $100,000 in the first
ninety days of care.5 8 If complications arise, the cost increases by about
51.
See id.
52.
Barbour, supra note 7.
53.
The Mississippi Senate passed a bill to create a process for the release of gravely
ill, nonviolent inmates. Miss. OKs Sick Inmates ' Early Release, THE CLARION-LEDGER, Feb.
9, 2011, http://www.necn.com/02/09/11/Miss-OKs-bill-to-release-some-sick-inmat/landing
politics.html?&blocklD=3&aplD=07712dbl48b0491bbc836d247975cl77.
This would
expand the current law to include incapacitated or disabled inmates for release, not just
those found to be terminally ill, which would save the state money. Id. The Senate cited to
the Scott sisters as an example of the high costs of inmate care. Id. Senate Bill 2877 died in
the House Committee on Corrections on March 1, 2011. Legislative Detail:MS Senate Bill
2877 - 2011 Regular Session, http://e-lobbyist.com/gaits/view/233138 (last visited Oct. 1,
2011).
54.
Williams, supra note 18.
55.
See generally Hon. Graham C. Mullen, Mandatory Guidelines: The Oxymoronic
State of Sentencing After United States v. Booker, 41 U. RICH. L. REv. 625, 631-36 (2007)
(discussing variances in sentencing at the federal level).
56.
See MISS. CODE ANN. § 47-7-4 (2011).
57.
See discussion infra Part IV.A.
58.
Michael J. Englesbe et al., Case Mix, Quality and High-Cost Kidney Transplant
Patients,9 AM. J. TRANSPLANT 1108, 1108 (2009), availableat http://www.ncbi.nlm.nih.gov
/pmc/articles/PMC2857520/pdf/nihms 192715.pdf.
206
CRIMHNAL AND CIVIL CONFINEMENT
[Vol. 38:199
$48,000; pneumonia care post-transplant can cost $38,000; and urinary
complications can be $28,000.59 The government, as the primary payor, is
responsible for most of these costs under the Center for Medicare and
Medicaid Services. 60
Although Mississippi found a way to decrease the State's financial
burden by ensuring that the transplant occurs post-release, the underlying
financial incentive does not make this type of conditional release legal. In
fact, the Scott sisters and the State are subject to a federal statute that
makes conditioning a prison release on an organ donation illegal. 6 1 These
cost concerns serve as a reminder that prison systems are governed by more
than the goals of punishment and the rehabilitation of wrongdoers, and
62
money-saving opportunities are not always effective at reducing costs.
IV. PRISONERS' CONSTITUTIONAL RIGHTS AND A PROHIBITION OF
CERTAIN ORGAN DONATIONS
A. The Eighth Amendment and a Prisoner's Right to Medical
Treatment
It is logical that an already overburdened prison system does not have
the financial means and medical resources to fund transplants for
prisoners.63 However, the Eighth Amendment constitutionally obligates
prison systems to provide medical care to inmates. 64 The Eighth
Amendment's prohibition on "cruel and unusual punishment" 65 controls
inmate health care, and the Supreme Court has confirmed a prison's duty to
provide medical care. 66
The Supreme Court held in Estelle v. Gamble that it is the government's
Id.
59.
Id.
60.
National Organ Transplant Act, 42 U.S.C. § 274(e) (2006).
61.
See, e.g., Paul Srubas, Wisconsin Gov. Scott Walker's Budget Tightens Early
62.
PrisonRelease, GREEN BAY PRESS GAZETTE, Mar. 5, 2011, http://www.greenbaypress
gazette.com/article/20110305/GPGO 10 1/103050637/Wisconsin-Gov-Scott-Walker-s-budget
-tightens-early-prison-release (showing that early release, cost-savings program estimated to
save $27 million likely rescinded because of low, actual cost-savings).
See generally Chad Kinsella, CORRECTIONS HEALTH CARE COSTS, COUNCIL OF
63.
STATE GOVERNORS, available at http://www.prisonpolicy.org/scans/csg/Corrections+Health
+Care+Costs+1-21-04.pdf.
U.S. CONST. amend. VIII; see Estelle v. Gamble, 429 U.S. 97, 116 n.13 (1976)
64.
("As a part of that basic obligation, the State and its agents have an affirmative duty to
provide reasonable access to medical care, to provide competent, diligent medical personnel,
and to ensure that prescribed care is in fact delivered.").
U.S. CONST. amend. VIII.
65.
See Estelle, 429 U.S. at 116 n. 13.
66.
EXCHANGING A KIDNEY FOR FREEDOM
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207
obligation to provide prisoners "with a health care system which meets
minimal standards of adequacy." 67 Inmates rely on prison authorities for
medical treatment; "if the authorities fail to do so, th[eir] needs will not be
met." 68 The Court concluded that "deliberate indifference to serious
medical needs of Xrisoners constitutes the 'unnecessary and wanton
infliction of pain."' Estelle is one authority supporting the existence of
compassionate release statutes. 7 0 The prison is required to care for the
inmates, regardless of expense,71 so it is cost-efficient to just release
inmates whose medical care is becoming financially burdensome.
The Southern District of California dealt with a specific transplant
request in Rosado v. Alameida.72 In Rosado, a state prisoner brought a
claim against prison officials for allegedly failing to place his name on a
transplant list for a liver. 73 The court analyzed the interests of the prisoner
and the interests of the state and cleverly ordered a modified preliminary
injunction with the condition that within thirty days of the court order, the
defendant must contact medical centers to determine whether the prisoner
was a transplant candidate. 74 If the medical centers would accept a prisoner
as a transplant candidate, then the petitioner would be able to receive a
transplant sooner. 75 The court acknowledged that if no such program
existed, the defendant is not obligated to provide the transplant. 76 Thus, the
responsibility for the medical care of prisoners ultimately falls to the state
if no other option is available.
Courts have also faced a situation where an inmate wanted to donate an
organ rather than become an organ recipient, as was the situation in
Rosado.77 In Lee v. Quarterman, a Texas district court denied an inmate's
motion to donate an organ to a family member. 78 The petitioner had
received word that his father was ill and waiting for a kidney transplant; the
prisoner wanted to be his father's kidney donor. 79 The Texas Department
of Criminal Justice had a policy regarding organ donation that the "consent
67.
68.
69.
70.
71.
72.
73.
74.
75.
76.
77.
78.
2008).
79.
Id.
Id. at 103.
Id. at 104.
See id
Id.
Rosado v. Alameida, 349 F. Supp. 2d 1340 (S.D. Cal. 2004).
Id. at 1342.
Id. at 1345-50.
Id. at 1350.
Id at 1350 n.5.
Id at 1340-50.
Lee v. Quarterman, No. C-07-476, 2008 WL 3926118, at *2 (S.D. Tex. Aug. 21,
Id.
208
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[Vol. 38:199
for organ or tissue donation, as well as the charges incurred in the
preliminary testing and the actual donation process, are the sole
responsibility of the donor, the donor recipient, and the organization
financially responsible for the donation (including lab work, shipping, and
all hospital charges)."80 The court relied on the Fifth Circuit and held that
"inmates have no constitutional right to donate organs."8 1
Campbell v. Wainwright, which the Quarterman court cited, agreed that
a state prisoner serving a death sentence for murder had "no right [to
donate a kidney], however, in consequence of his incarceration."1 2 The
petitioner requested the court to order the prison to allow him to be tested
to determine if he was eligible to donate a kidney to a young person
residing in Florida. 83 The testing would occur in Colorado, the postoperation care would occur in Florida, and, if necessary, a removal would
occur back in Colorado. 84 The Fifth Circuit held that had the inmate been
free, he would have had the right to donate a kidney to whomever he
desired, but because of his incarceration, he was prohibited from doing
so. 85 The court balanced the medical need of the prisoner (none), with the
cost to the state (high), and the possibility of escape (likely) if he was
allowed out of prison for the organ donation. 86
Rosado suggests that it is the government's duty to provide a prisoner
with access to a transplant when the need for a transplant is serious.87
Otherwise, states violate a prisoner's right to medical treatment under the
Eighth Amendment.8 8 However, Campbell stands for the principle that
prisoners do not have the freedom to donate an organ, even to a family
member. 89 Therefore, in the Scott sisters' case, Mississippi was able to
meet the constitutional requirement to provide Jamie Scott with access to a
transplant by using her sister as a donor, but the donor-sister never had the
right to donate her kidney, evident by the holding of Campbell.90
80.
81.
82.
83.
84.
85.
86.
87.
88.
89.
90.
Id.
Id. at *3.
Campbell v. Wainwright, 416 F.2d 949, 950 (5th Cir. 1969).
Id.
Id.
Id.
Id.
Rosado, 349 F. Supp. 2d at 1340-50.
Id.; see also Estelle, 429 U.S. at 116 n.13.
See Campbell, 416 F.2d at 950; Quarterman,2008 WL 3926118, at *2.
See Campbell, 416 F.2d at 950.
EXCHANGING A KIDNEY FOR FREEDOM
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209
B. Legislation and an International Health Guidance Document
1. Federal prohibition of sale of organs
The direct sale of an organ for transplant is prohibited by federal
statute. 9 1 The National Organ Transplant Act (Federal Transplant Act)
states that it "shall be unlawful for any person to knowingly acquire,
receive, or otherwise transfer any human organ for valuable consideration
for use in human transplantation if the transfer affects interstate
commerce." 92 Violations of this Act have maximum fines of $50,000, five
years imprisonment, or both.93 This Act implicitly prohibits developing an
organ market between states, 94 but the reasonable cost of medical fees
associated with the procedure can be paid for the donor.9 5
2.
International viewpoint
There is also an international policy of outlawing the sale of organs. The
World Health Organization has drafted Guiding Principles on Human Cell,
Tissue, and Organ Transplantation (Guiding Principles).9 6 Principle three
of this report recommends that "adult living persons may donate organs as
permitted ... [and] in general living donors should be genetically, legally
or emotionally related to their recipients." 97 Organs should "only be
donated freely, without any monetary payment or other reward of monetary
value." 98 The purpose behind this principle is similar to the Federal
Transplant Act: diminish donor programs that create coercive atmospheres
91.
42 U.S.C. § 274(e)(a) (2006).
92.
Id.
93.
Id. § 247(e)(b).
This Note does not discuss interstate commerce clause implications, but it is easy
94.
to see that in the Scott sisters' case, the conditioning of a prisoner's release on an organ
transfer is a "criminalized" activity which affects interstate commerce. The State of
Mississippi has created a market for organs and allowed an organ to become an entity for
trade, a commercial good. Congress, by enacting the National Organ Transplant Act, has
reserved the power to regulate and control an organ market and to prohibit a market from
forming. Allowing Mississippi, a state "market participant," to set this precedent is counter
to congressional sentiments and power. See generally Gibbons v. Ogden, 22 U.S. 1 (1824)
(holding that regulation of interstate commerce powers belongs to Congress); Wickard v.
Filburn, 317 U.S. 111 (1942) (stating that the Government can regulate prices of
commodities that affect interstate commerce).
95.
See § 274(e)(c)(2).
96.
Guiding Principles on Human Cell, Tissue and Organ Transplantation,WORLD
HEALTH ORG. (2008), http://www.searo.who.int/LinkFiles/BCTWHOguidingprinciples
organ transplantation.pdf (hereinafter GuidingPrinciples).
97.
Id.
98.
Id.
CRIMINAL AND CIVIL CONFINEMENT
210
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or commoditize organs. 9 9
3.
State legislation and prisoner-transplants
A prisoner's receipt and donation of an organ has remained an issue of
social concern, particularly when the cost of the transplant is on
taxpayers.100 In 2003, an inmate in Nebraska was placed on the organ
transplant list, but her acceptance of the organ was contingent upon her
losing weight and gaining better control of her diabetes.' 0 ' That same year
in Oregon, a death-row inmate was considered a good candidate to receive
an organ, but he eventually failed to meet the criteria required to receive
the transplant.102 In this case, Oregonians "were concerned that prison
officials would even consider providing a death-row inmate with a
transplant at the taxpayers' expense." 03
In response, some states considered legislation with various allowances
or restrictions on inmate organ donation. A failed Louisiana statute would
have prohibited "state-funded organ transplants 'for people who have
exhausted all appeals after a conviction for first-degree murder, punishable
by death or a life sentence, and second-degree murder, which carries a
mandatory life sentence."' 104 The Texas prison system has its own policy
that forbids death row prisoners from donating organs, 105 but allows organ
99.
100.
Id.
CTRS. FOR MEDICARE & MEDICAID SERV., How IS MEDICARE FUNDED? (2009),
availableat http://www.medicare.gov/Publications/Pubs/pdf/l1396.pdf.
Kate Douglas, Prison Inmates are ConstitutionallyEntitled to Organ Transplants
101.
-So Now What?, 49 ST. Louis U. L.J. 539, 539 (2005).
102.
Id.
103.
Id. at 540; see also CTRS. FOR MEDICARE, supra note 100.
104. Douglas, supra note 101, at 539 (referencing a Louisiana bill that was introduced).
The current Louisiana statute states:
No monies appropriated to the department from the state general fund or from
dedicated funds shall be used for medical costs associated with organ transplants
for inmates or for the purposes of providing cosmetic medical treatment of
inmates, unless the condition necessitating such treatment or organ transplant
arises or results from an accident or situation which was the fault of the
department or resulted from an action or lack of action on the part of the
department.
LA. REv. STAT. ANN. §15:831 (2006). It also allows inmates to donate their vital organs for
transplant purposes. Id.
Some have suggested that the Texas policy, which is specific to death-row
105.
inmates, should be changed because it is counter to the Texas Anatomical Gift Act which
allows people to donate organs and because no language expressly prohibits prisoners from
donating. Perales, supra note 21, at 706-07. The proponents for change argue that
condemned prisoners have the right to "donate their organs [and this right] should be
recognized under the same theory as the right to die or refuse medical treatment" analyzed
EXCHANGING A KIDNEY FOR FREEDOM
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211
donation from the general population inmates.10 6
4.
South Carolina Bill 480
Mississippi accepted the conditional release for an organ donation three
years after similar legislation failed in South Carolina.107 South Carolina
Senator Ralph Anderson introduced a bill in 2007 to the South Carolina
Senate that would reduce a prisoner's sentence by 180 days if they donated
a kidney.' 0 8 This bill was merely introduced and promptly failed to be
passed.' 0 9 The bill was introduced with two other bills as part of an effort
to relieve the shortage of organ donors.11 0 Senate Bill 480 proposed "a
bargaining away of criminal punishment in exchange for the contribution
of bodily organs to meet the increasing national need for kidney
donations."I
Mississippi's conditional release is fundamentally different from the
proposed South Carolina bill. If it had been enacted, the South Carolina bill
would apply to any and all criminal defendants facing jail time. Mississippi
conditioned an individual's release on the need for an organ donation.
Therefore, the scope and its effects are much less widespread than the
South Carolina bill, although both face the same charge of illegality.
However, the conditional release exchange in Mississippi occurs later than
the plea bargaining stage of sentencing, which is suggested to be a more
appropriate period.1 2 The Scott sisters' releases involved both an exchange
between private parties-the sisters-and an exchange between public
parties,1 13 and was not just a contract between the state and criminal
under a balancing test. Id. at 706. This test would balance the "interest of a condemned
inmate in saving another person's life through organ donation and society's immense need
for organs" which "outweigh the competing concerns of the Texas prison system." Id.
Id. at 703 (citing Organ Donation Waved Off] Hous. CHRONICLE, Sept. 9, 1998,
106.
http://www.chron.com/CDA/archives/archive.mpl?id=1998_3081458).
107.
Barbour, supra note 7.
108.
S.B. 480, 117th Gen. Assemb., Reg. Sess. (S.C. 2007).
109.
Id.
110.
Senate Bill 481 was introduced on the same day as Senate Bill 480 by Ralph
Anderson. S.B. 481, 117th Gen. Assemb., Reg. Sess. (S.C. 2007). It proposed the creation of
an organ and tissue donation program. Id. Prior to the introduction of Senate Bill 48 1,
Senator Anderson proposed Senate Bill 417 which was a "sixty day reduction in the prison
sentences of inmates who voluntarily donated bone marrow or blood-forming cells while
incarcerated." Emily C. Lee, Trading Kidneys for Prison Time: When Two Contradictory
Legal Traditions Intersect, Which One has the Right-of-Way?, 43 U.S.F. L. REv. 507, 507
n. 1 (2009) [hereinafter TradingKidneys].
111.
Trading Kidneys, supra note 110, at 509.
112.
See id (discussing plea bargaining, the test of voluntariness, the use of threats,
fear, and coercion in the context of a "criminal market").
113.
See id. at 545-47 (discussing public versus private participants in the exchange).
212
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 38:199
defendant as the bill would indicate. There is a similarity though; prisoners
under the bill would receive decreased jail time, making both the bill and
Mississippi's actions questionable under a federal statute prohibiting
anything except a gratuitous donation of an organ.114
The South Carolina bill failed, suggesting that the South Carolina
legislature recognized that receiving any sort of compensation,
consideration, or bargaining for an organ, such as a reduced sentence,
remains illegal despite the bill's intention to increase available organ
donors. Other suggested reasons for failure include a voluntariness
component, that the "donor must not be subject to any force, pressure or
fear," and that freedom should not be "compromised because the intense
hothouse culture that exists in prisons often commands conformity ...
[and] [s]ome inmates who would not ordinarily donate an organ may feel
compelled to do so in order to convince a parole board of their
rehabilitation."'"5
Legislation and international guidelines reflect the feelings that an organ
donation should remain a gift: no consideration, monetary or otherwise,
should be exchanged for an organ.1 16 The Guiding Principles elaborate on
the fear that if monetary consideration could be given for an organ, wealthy
individuals waiting for a kidney might receive one before a poor individual,
merely because the wealthy would have the financial means to purchase an
organ offered to the highest bidder.117 The Scott sisters' case has raised a
fascinating issue of trading organs for freedom, as opposed to the more
typical organ-for-cash concern. By exchanging an organ for freedom, the
state created an organ market where freedom equals one kidney.
114.
42 U.S.C. § 274(e) (2006).
Rev. Michael P. Orsi, Prisons Not Ethical Source of Organs, 33 CoNN. LAW
115.
TRIBUNE 31 (Jun. 4, 2007) available at 2007 WLNR 28034820 at *1 (discussing the failed
South Carolina legislation).
Contra Sally Satel, When Altruism Isn't Moral, THE AMERICAN (2009), available
116.
This article is
at http://www.american.com/archive/2009/when-altruism-isnt-moral.
modified from Satel's book, WHEN ALTRUISM ISN'T ENOUGH: CASE FOR COMPENSATING
KIDNEY DONORS 72 (Sally Salter, ed. 2008), availableat http://www.aei.org/docLib/978084
4742663.pdf). "Paradoxically, . . . every donation seem[s] like a 'loving, voluntary gift of
organ donation.' . . . [Tihere is no other legal option.
. .
. Yet, our current altruism-only
system has a dark side: It imposes coercion of its own by putting friends and family
members in a bind." Id.
GuidingPrinciples,supra note 96.
117.
EXCHANGING A KIDNEY FOR FREEDOM
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213
V. THE DONOR-SISTER AND THE GIFT THAT BECAME A CONTRACT FOR
FREEDOM
A.
Bodily Integrity: Body Parts as Personal, Alienable Property
Some bioethicists argue against an organ market because the "body is so
inseparable from the person that people should not trade in it."" 8
Opponents argue that a person is more than the sum of parts so treating
body parts as property does not diminish personal dignity., 9 Yet in some
aspects, people can alienate their bodies, because body parts can be given
away in a will or donated for research purposes.12 0 If one sees property as a
thing "to acquire, to use, and to put on display, such as an object that is to
be manipulated and coveted," and if this principle is "applied to the body,
[then] viewing property as a bundle of different relationships among
persons or other entities with respect to things[,] is a way of
disaggregating[,] fragmenting the body[,] and distributing its discrete
components."' 2 1 Under the property framework, bodies can be divided into
discrete, alienable parts, 122 but society has not recognized this theory in its
entirety; the enactment of legislation prohibiting the sale of organs implies
that the human body is viewed as a whole composed of invaluable,
inalienable parts.
B.
Using an Organ to Gain Freedom from Prison
By allowing an inmate's early release to be conditioned on the donation
of an organ, Mississippi commoditized a prisoner's organs. The State's
actions suggest that organs are something you can trade for freedom. By
accepting the conditional release, the State and Gladys Scott viewed, and
subsequently treated, her kidney as alienable property, and as a tradable
good.
Things that may be given away but not sold-for example, an organare "market-inalienable."l 2 3 The United States does not support a legal
organ market, which implies that society subscribes to the tenet that organs
are inalienable and cannot be sold. The traditional definition of
inalienability is an "entitlement, right, or attribute that cannot be lost or
118.
Elizabeth E. Appel Blue, Redefining Stewardship Over Body Parts, 21 J.L. &
HEALTH 75, 85 (2008).
119.
Id.
120.
121.
Id. at 89.
Id. at 91.
122.
Id.
123.
(1987).
Margaret Jane Radin, Market-Inalienability, 100 HARV. L. REv. 1849, 1853
CRIMNAL AND CIVIL CONFINEMENT
214
[Vol. 38:199
extinguished."1 2 4 Another definition of inalienability is an entitlement that
"cannot be voluntarily transferred from one holder to another."l 2 5 qf
something is non-transferable, the holder cannot designate a successor
holder.... If something is inalienable by gift, it might be transferred by
sale; if it is inalienable by sale, it might be transferred by gift."l 2 6 This is
the most applicable definition because organs can be transferred by gift, so
they may be inalienable by sale. By making something "nonsalable[,] we
proclaim that it should not be conceived of or treated as a commodity." 27
Exceptions to organ inalienability, such as markets for hair, blood, sperm,
or eggs, may be permitted because of their "life-generating potential or
scarcity" or their regenerative properties.128
The property model would allow a person to enter into a contract for
compensation as if someone was purchasing a valuable good.129 This
theory permits individual autonomy over one's body and body parts.
Within the property model, the conceptual model is structured around a
belief that alienability is "inherent in the concept of private property." 30
Thus, the model's core idea is that objects are property. The issue with the
conceptual model is that "'included in the idea of private property' is a
right of each person 'to the exclusive disposal of what he or she [has]
produced by their own exertions, or received either by gift or by fair
agreement without force or fraud, from those who produced it."' 13 1 A basic
right is that you can acquire property by a contract and to "prevent those
who produce things from giving or exchanging them as they wish[,]
violates the producers' property rights."' 32 This allows people to assume
that because they have "producers' property rights" to a body part, they
must also be able to contract away this personal property.
The Scott donor-sister would similarly argue she had property rights to
her body parts-that she could give her organs freely and even contract
them away. 133 However, society, federal statutes, and case law uniformly
124.
Id.
125.
Id.
126.
Id.
127.
128.
Id. at 1854.
Trading Kidneys, supra note 110, at 538.
129. Id. "On average a cadaver generates between $30,000 and $50,000 in value, but a
single cadaver can generate over $200,000." Appel Blue, supra note 118, at 77 (citing
TRANSPLANTING HUMAN TissUE: ETHICS, POLICY AND PRACTICE xi (Stuart J. Younger, et al.,
eds. 2004)).
130.
131.
Radin, supra note 123, at 1888.
Id. at 1889 (quoting J. S. MILL, PRINCIPLES OF POLITICAL EcoNoMY bk. II, ch. ii, at
218 (W. Ashley ed. 1909)).
132.
Id.
133.
See supra Part V.B and accompanying text.
2012]
EXCHANGING A KIDNEYFOR FREEDOM
215
disagree because personal autonomy is not sufficient to assert a contractual
right. The Federal Transplant Act explicitly establishes a "barrier between
the individual and the state, a line that requires individual consent and
acceptance of the state's power."1 34 Mississippi crossed this line.
C. The Illegality of the Conditional Release
Under the property model, Gladys Scott contracted away her kidney as
alienable personal property. In return, she received a suspended sentence;
she will not have to serve the remainder of her life-sentence as long as she
donates her kidney. The Federal Transplant Act prohibits the transaction
that occurred between Gladys Scott and the State of Mississippi.13 5 Organ
donation is considered a gift in the United States, but in some countries, the
value of a kidney can reach over $80,000.136 As a result, Gladys Scott,
prison officials, the governor of Mississippi, or anyone who is complicit in
the transaction of conditioning a release on the relinquishment of an organ
could be subject to criminal punishments of up to $50,000 in fines or up to
five years in prison under the Act.13 7
VI. CONCLUSION: IMPLICATIONS OF CONDITIONING PRISON RELEASES ON
ORGAN DONATION
Conditioning a prisoner's release on the donation of an organ is
illegal138 and sets dangerous precedent that will entice prisoners to
relinquish their organs as a "way out" of jail. Additionally, a prisoner may
even offer an organ at a sentencing hearing as a last effort to avoid
prison. 139 Case law has already condemned these types of prisoner
134.
135.
Appel Blue, supra note 118, at 88.
42 U.S.C. § 274(e) (2006).
136.
Scott Carney, Why a Kidney (Street Value: $3,000) Sells for $85,000, WIRED
(May 8, 2007), http://www.wired.com/medtech/health/news/2007/05/india transplants_
prices.
137.
See 42 U.S.C. § 274(e) (2006) ("Any person who violates subsection (a) of this
section shall be fined not more than $50,000 or imprisoned not more than five years, or
both.").
138.
See id.
139.
Dave Racher, A KIDNEY OR JAIL Con Man PersuadesJudge to Issue Lighter
Sentence, to Trade a Kidney for 20 Years in Jail, PHILLY (Apr. 17, 2001),
http://articles.philly.com/2001-04-17/news/25329883_1_kidney-jail-term-issue-of-organdonation. A man who has been convicted twenty-one times, usually because of posing as
"an out-of-towner victimized by robbers" and asking people for money, begged the judge at
a sentencing hearing to let him donate an organ to decrease his prison sentence. Id. The
judge accepted his donation as long as he was jailed for another two years and enrolled in a
dietary plan prior to the donation. Id. The District Attorney was quoted as saying, "Mr.
Howell gave an outstanding performance before the judge. After watching him perform, I
216
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 38:199
requests,14 0 and other states have failed to enact legislation allowing
reduced sentences in exchange for organ donations.141 It is perplexing why
the State of Mississippi allowed the donor-sister's release without any legal
support from case law or without implementing methods by which the
transplant could feasibly occur within the time limit imposed on the
donation.
This release is especially troublesome because prisoners are a vulnerable
population.1 42 It is unethical for state prison systems to allow conditioning
a release on an organ transfer because of the potential for coercion in an
unbalanced power relationship.143 The State's acceptance of the organ as
an alienable good, a commodity one can contract, bargain, trade, or give as
consideration, undermines the purpose of the National Organ Transfer
Act.'" Furthermore, it undermines the belief that organ donations should
be a gift and not the basis for a bidding war-a bidding war the financially
desperate are likely to lose. 145
The future of the Scott sisters remains uncertain particularly because the
sisters were released over a year ago. News outlets have reported the sisters
must lose weight before the surgery can occur. 146 It is unclear what state
can certainly understand how he persuaded so many people, over so many years, to give him
money." Id. The outcome of the Barry Howell situation-whether the donation occurred-is
unclear.
See supra Part IV.B and accompanying text.
140.
141.
S.B. 480, 117th Gen. Assemb., Reg. Sess. (S.C. 2007).
See generally Research Involving Vulnerable Populations, NAT'L INST. OF
142.
HEALTH (2011), http://grants.nih.gov/grants/policy/hs/prisoners.htm (prisoners as vulnerable
population for research purposes); Committee for Protection of Human Subjects, UC
1, 2009), http://cphs.berkeley.edu/policies procedures/sc502.pdf
(Oct.
BERKELEY,
("Prisoners, individuals involuntarily confined or detained in a penal institution, as a
population are considered vulnerable because the constraints of incarceration may affect an
individual's ability to give voluntary, informed consent."). It is unknown whether the Scott
donor-sister received adequate information in order to properly consent to such a transaction
before offering her kidney in exchange for an early release.
See id.
143.
See U.S. DEP'T OF HEALTH & HUMAN SERVS., ORGAN PROCUREMENT AND
144.
TRANSPLANT NETWORK, National OrganTransplantAct (2011), http://optn.transplant.hrsa.
gov/policiesAndBylaws/nota.asp (addressing "the nation's critical organ donation shortage
and improv[ing] the organ matching and placement process"); Susan Donaldson James,
Scott Sisters Kidney Donation Threatens Organ TransplantLaws, ABC NEWS (Dec. 31,
2010), http://abcnews.go.com/Health/scott-sisters-kidney-donation-threatens-organ-transp
lant-law/story?id=12515616&page=3.
145.
See generally Rachel Chen, The Risk of a Marketfor OrganDonations, 3 YALE J.
OF MED. & LAW (2010), available at http://www.yalemedlaw.com/2010/10/the-risk-of-amarket-for-organ-donations/ ("The problem with markets is that rich people would descend
upon poor people to buy their organs, and the poor don't have any choice about it.").
146.
Gates, supra note 38.
2012]
EXCHANGING A KIDNEY FOR FREEDOM
217
will fund the cost of the treatment as the sisters are now living in
Florida. 147 Presumably, Medicare or the hospital that eventually performs
the surgeries will absorb the expense. If the transfer never happens, Gladys
Scott will have violated a condition of her release and should technically be
sent back to prison, but whether any governor will enforce the condition of
her release is unclear.
Regardless of what happens to the Scott sisters, it is imperative that state
legislatures across the nation comprehend that under current federal law it
is illegal to condition a prisoner's release on the donation of an organ. If
they do not, greater issues related to prisoners and organ donations could
arise.
It is not hard to imagine a situation where prisoners, or even the unincarcerated, are going to be clamoring to donate a kidney so that they too
may receive a conditional release, suspended sentence, or reduced jail time.
What if Gladys had donated a kidney and another organ, like a lung?
Would she have received a pardoned sentence, something she is still
fighting for?l 48 These scenarios illustrate the larger impact of conditioning
a prison release on the donation of an organ. These state actions are
prohibited by federal law and will remain prohibited unless inmates are
afforded the right to donate organs or a market for organs becomes legal.
147.
Williams, supra note 18.
148.
Released Sisters Say They Will Continue Fightingfor Pardon, CNN (Apr. 2,
2011), http://articles.cnn.com/2011-04-02/justice/mississippi.sisters.released-l_gladys-scott
-sisters-mississippi-prison? s=PM:CRIME. It is unlikely the sisters will receive the pardon
they are requesting, but there is always the hope with a new governor. Gov. Barbour:
Pardonfor Scott Sisters Not Likely, WHLT (Mar. 31, 2011), http://www2.whlt.com/news/
2011/mar/31/gov-barbour-no-pardon-scott-sisters-ar-1655395/ ("Tell 'em don't save any
space in the newspaper for that to be announced."); Holebrook Mohr, Scott Sisters Will Push
New Gov for Pardon,ABC News (Jan. 12, 2012), http://abcnews.go.com/US/wire/Story/
lawyer-miss-sisters-push-gov-pardon-15348557#.TxAwO29SRDs (last visited Jan. 12,
2012).