The Mississippi Decision Exchanging Parole for Kidney Donation: Is This the Beginning of Change for Altruistic-Based Human Organ Donation Policy in the United States?

Abstract

Governor Haley Barbour's recent decision to indefinitely suspend the life sentences of 2 Mississippi sisters convicted of a 1994 armed robbery drew considerable media attention worldwide.1-3 Jamie and Gladys Scott were reported to be traveling in a car with 2 men. When Jamie feigned illness, the driver of the car pulled over to the side of the road, at which point 3 men who had been following in a car behind robbed the 2 men at gunpoint. The 3 men who were arrested along with the Scott sisters pled guilty and were sentenced to shorter prison terms in exchange for testifying against Jamie and Gladys. That the women were black, living in the South, and sentenced to what many thought a harsh prison term for a crime netting a mere $11 prompted critical social examination. Health care professionals and bioethicists alike were further drawn to an element of Governor Barbour's decision that crossed into the realm of long-standing organ transplant policy. At the time of the suspension, Jamie was undergoing dialysis treatment at an annual cost to the state of $200,000 and was scheduled for early release because of her need for a kidney transplant. According to the governor's office, in her petition to the Mississippi parole board for early release in 2010, Gladys voluntarily offered to donate her kidney to her incarcerated sister.4 The governor explained that, after the sisters' request for early release, the Mississippi parole board recommended against either a pardon or a commuted sentence. On further review of the sisters'case, the board determined that the Scotts were no longer a threat to society and granted an indefinite suspension of their sentences.4 Gladys' indefinite suspension, which state officials describe as equivalent to parole, requires her to donate her kidney to her 36-year-old sister within 1 year after her release. The governor reportedly has said that the kidney donation “should be scheduled with urgency.”4 At the time of the sisters' release from the Mississippi Department of Corrections facility on January 7, 2011, no information was available as to tissue compatibility or other potential limitations to the prospect of a medically optimized transplant. Although the governor has yet to publically announce whether he will require the sisters to return to prison in the event of a failure to proceed with the conditioned kidney transplant, NAACP (National Association for the Advancement of Colored People) President Benjamin Jealous stated that, during his meeting with the governor, he was told that Gladys will not go back to prison if her kidney is not a match.5 The purpose of this article is to evaluate the recent decision made by Mississippi state officials in the context of current organ transplant legislation. A brief description of the theoretical concepts that involve criminal punishment and parole affords a better appreciation of whether the Mississippi decision aligns with the traditional goals established by the criminal justice system. The criminal justice market and the market for human organs are compared. Examining prior legislative efforts assists in unmasking the potential conflict introduced by combined decisions involving the criminal justice system and human organ transplant donation. Finally, this article argues that, although the State of Mississippi decision, and any further public reaction that follows, may offer some preliminary insight as to a willingness to deviate from purely altruistic motives regulating solid organ donation in the United States, it will likely fail as the first true test of a criterion for change.