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 authoritys jurisdiction but are not in physical custody.1 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. BUREAU OF JUSTICE STATISTICS, CORRECTIONAL POPULATIONS IN THE U.S., at 2 (2009), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cpus09.pdf.; U.S. CENSUS BUREAU, NATL 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). 2. Pardon is defined as the act or an instance of officially nullifying punishment or other legal consequences of a crime. BLACKS 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. 3. Marjorie P. Russell, Too Little, Too Late, Too Slow: Compassionate Release of 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-Release Statutes 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).

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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.7 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 Gladyss release was conditioned on an event, making it a conditional release.10 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.11 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 considerationfreedomand 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. BLACKS LAW DICTIONARY 1403 (9th ed. 2009); see, e.g., Types of Releases, TEX DEPT 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), available at http://www.governorbarbour.com/news/2010/dec/ 12.29.10scottsistersrelease.html [hereinafter Barbour]. 8. Id. 9. Id. 10. See supra notes 2-5 and accompanying text. 11. But cf. Whitney Hinkle, Giving Until it Hurts: Prisoners are Not the Answer to the National Organ Shortage, 35 IND. L. REV. 593, 593 (2002) (arguing that prisoners, regardless of their prison statusexecuted or livingshould not become organ donors).

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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 prisoners 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 robberty, 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 Scotts medical condition creates a substantial cost to the State of Mississippi.16 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 Barbours statement implies that the sisters release was actually motivated by the underlying financial burden of Jamie Scotts state-funded care of approximately $200,000 per year.18 Officially, however, Gladyss 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

Barbour, supra note 7. Id. 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.
12. 13. 14.

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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 patients 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 persons kidneys fail, harmful waste builds up in [the] body, [a persons] 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.27 A persons 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 Call for Common Sense: Organ Donation and the Executed Prisoner, 3 VA. J. SOC. POLY & 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 Prisoners as Organ Donors: A Possible Life-line to those on Organ Donor Waiting Lists, 34 ST. MARYS L.J. 687, 687, 703-11 (2003) (discussing death row prisoners as a source for organ donors with particular focus on Texass organ donation policy). 22. Treatment Methods for Kidney Failure: Transplantation, NATL KIDNEY AND UROLOGIC DISEASE INFO. CLEARINGHOUSE, NATL INST. OF HEALTH, http://kidney.niddk. nih.gov/kudiseases/pubs/transplant/ (last updated Sept. 2, 2010). 23. Id. 24. Id. 25. Id. 26. Id. 27. Id. 28. Id. 29. Id. 30. Id. 31. Id.

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in better condition as it comes directly from the donors body and the need for organ transportation has been eliminated.32 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.33 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 levels36 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.41 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. Mississippis Conditional Release Statute Mississippi does not have a formal compassionate release process or a
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://freethescott sisters.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 SCOTT SISTERS!, supra note 34. 36. Id. 37. Id. 38. Jimmie E. Gates, Freed Scott Sister Must Lose 120 lbs., USA TODAY (Jan. 26, 2010), http://www.usatoday.com/news/nation/2011-01-26-scott-sisters-mississippi_N.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.
32. 33. 34.

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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.43 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.44 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. Mississippis 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

MISS. CODE ANN. 47-7-4 (2011). Id. Id. Id.; see infra Part IV.A and accompanying text. 46. Justin Brooks, Addressing Recidivism: Legal Education in Correctional Settings, 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).

42. 43. 44. 45.

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societys concern for safety and the States interest of lowering prison costs.51 Concerns of cost savings appear to be a greater concern than humanitarian reasons; in the case of the Scott sisters, Jamie Scotts 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 States concern for cost-savings becomes even more evident when one learns the sisters were not confirmed to be a match prior to accepting Gladyss 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.55 Additionally, there is actual legal support for Jamie Scotts 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.58 If complications arise, the cost increases by about
See id. Barbour, supra note 7. 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?&blockID=3&apID=07712db148b0491bbc836d247975c177. 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), available at http://www.ncbi.nlm.nih. gov/pmc/articles/PMC2857520/pdf/nihms192715.pdf.
51. 52. 53.

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$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 States 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.61 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 money-saving opportunities are not always effective at reducing costs.62 IV. PRISONERS CONSTITUTIONAL RIGHTS AND A PROHIBITION OF CERTAIN ORGAN DONATIONS A. The Eighth Amendment and a Prisoners 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 Amendments prohibition on cruel and unusual punishment65 controls inmate health care, and the Supreme Court has confirmed a prisons duty to provide medical care.66 The Supreme Court held in Estelle v. Gamble that it is the governments

Id. Id. National Organ Transplant Act, 42 U.S.C. 274(e) (2006). See, e.g., Paul Srubas, Wisconsin Gov. Scott Walkers Budget Tightens Early Prison Release, GREEN BAY PRESS GAZETTE, Mar. 5, 2011, http://www.greenbaypress gazette.com/article/20110305/GPG0101/103050637/Wisconsin-Gov-Scott-Walker-sbudget-tightens-early-prison-release (showing that early release, cost-savings program estimated to save $27 million likely rescinded because of low, actual cost-savings). 63. See generally Chad Kinsella, CORRECTIONS HEALTH CARE COSTS, COUNCIL OF STATE GOVERNORS, available at http://www.prisonpolicy.org/scans/csg/Corrections+ Health+Care+Costs+1-21-04.pdf. 64. U.S. CONST. amend. VIII; see Estelle v. Gamble, 429 U.S. 97, 116 n.13 (1976) (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.). 65. U.S. CONST. amend. VIII. 66. See Estelle, 429 U.S. at 116 n.13.

59. 60. 61. 62.

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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 prisoners constitutes the unnecessary and wanton infliction of pain.69 Estelle is one authority supporting the existence of compassionate release statutes.70 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 inmates 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 fathers 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.

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.

2008). 79.

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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.81 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.82 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 governments duty to provide a prisoner with access to a transplant when the need for a transplant is serious.87 Otherwise, states violate a prisoners right to medical treatment under the Eighth Amendment.88 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.

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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.91 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.95 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).96 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

42 U.S.C. 274(e)(a) (2006). Id. Id. 247(e)(b). This Note does not discuss interstate commerce clause implications, but it is easy to see that in the Scott sisters case, the conditioning of a prisoners 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/BCT_WHO_guiding_principles_ organ_transplantation.pdf (hereinafter Guiding Principles). 97. Id. 98. Id.

91. 92. 93. 94.

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or commoditize organs.99 3. State legislation and prisoner-transplants A prisoners 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.101 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.103 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
Id. CTRS. FOR MEDICARE & MEDICAID SERV., HOW IS MEDICARE FUNDED? (2009), available at http://www.medicare.gov/Publications/Pubs/pdf/11396.pdf. 101. Kate Douglas, Prison Inmates are Constitutionally Entitled to Organ Transplants 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. 105. Some have suggested that the Texas policy, which is specific to death-row 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
99. 100.

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donation from the general population inmates.106 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 prisoners sentence by 180 days if they donated a kidney.108 This bill was merely introduced and promptly failed to be passed.109 The bill was introduced with two other bills as part of an effort to relieve the shortage of organ donors.110 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.111 Mississippis 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 individuals 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.112 The Scott sisters releases involved both an exchange between private partiesthe sistersand an exchange between public parties,113 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 persons life through organ donation and societys immense need for organs which outweigh the competing concerns of the Texas prison system. Id. 106. Id. at 703 (citing Organ Donation Waved Off, HOUS. CHRONICLE, Sept. 9, 1998, 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 481, 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 Trading Kidneys]. 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).

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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 Mississippis 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 bills 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.115 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.116 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.

42 U.S.C. 274(e) (2006). Rev. Michael P. Orsi, Prisons Not Ethical Source of Organs, 33 CONN. LAW TRIBUNE 31 (Jun. 4, 2007) available at 2007 WLNR 28034820 at *1 (discussing the failed South Carolina legislation). 116. Contra Sally Satel, When Altruism Isnt Moral, THE AMERICAN (2009), available at http://www.american.com/archive/2009/when-altruism-isnt-moral. This article is modified from Satels book, WHEN ALTRUISM ISNT ENOUGH: CASE FOR COMPENSATING KIDNEY DONORS 72 (Sally Salter, ed. 2008), available at http://www.aei.org/docLib/ 9780844742663.pdf). Paradoxically, . . . every donation seem[s] like a loving, voluntary gift of organ donation. . . . [T]here is no other legal option. . . . Yet, our current altruismonly system has a dark side: It imposes coercion of its own by putting friends and family members in a bind. Id. 117. Guiding Principles, supra note 96.

114. 115.

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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.118 Opponents argue that a person is more than the sum of parts so treating body parts as property does not diminish personal dignity.119 Yet in some aspects, people can alienate their bodies, because body parts can be given away in a will or donated for research purposes.120 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.121 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 inmates early release to be conditioned on the donation of an organ, Mississippi commoditized a prisoners organs. The States 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 soldfor example, an organ are market-inalienable.123 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. Id. at 89. 121. Id. at 91. 122. Id. 123. Margaret Jane Radin, Market-Inalienability, 100 HARV. L. REV. 1849, 1853 (1987).

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extinguished.124 Another definition of inalienability is an entitlement that cannot be voluntarily transferred from one holder to another.125 If 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.126 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.127 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 ones 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.130 Thus, the models 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.131 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.132 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 partsthat she could give her organs freely and even contract them away.133 However, society, federal statutes, and case law uniformly
Id. Id. Id. Id. at 1854. Trading Kidneys, supra note 110, at 538. 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. Radin, supra note 123, at 1888. 131. 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.
124. 125. 126. 127. 128. 129.

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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 states power.134 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.135 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.137 VI. CONCLUSION: IMPLICATIONS OF CONDITIONING PRISON RELEASES ON ORGAN DONATION Conditioning a prisoners 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

Appel Blue, supra note 118, at 88. 42 U.S.C. 274(e) (2006). 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 Persuades Judge 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
134. 135. 136.

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requests,140 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-sisters 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.142 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 States 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.144 Furthermore, it undermines the belief that organ donations should be a gift and not the basis for a bidding wara 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 situationwhether the donation occurredis unclear. 140. See supra Part IV.B and accompanying text. 141. S.B. 480, 117th Gen. Assemb., Reg. Sess. (S.C. 2007). 142. See generally Research Involving Vulnerable Populations, NATL INST. OF 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 BERKELEY, (Oct. 1, 2009), http://cphs.berkeley.edu/policies_procedures/sc502.pdf (Prisoners, individuals involuntarily confined or detained in a penal institution, as a population are considered vulnerable because the constraints of incarceration may affect an individuals 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. 143. See id. 144. See U.S. DEPT. OF HEALTH & HUMAN SERVS., ORGAN PROCUREMENT AND TRANSPLANT NETWORK, National Organ Transplant Act (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 Transplant Laws, 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 Market for Organ Donations, 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 dont have any choice about it.). 146. Gates, supra note 38.

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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 nevers happen, 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 prisoners 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?148 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.

Williams, supra note 18. Released Sisters Say They Will Continue Fighting for Pardon, CNN (Apr. 2, 2011), http://articles.cnn.com/2011-04-02/justice/mississippi.sisters.released_1_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: Pardon for 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).
147. 148.