JJJ Contract Proof (DO NOT DELETE)

2/15/2013 5:38 PM

The Exchange of Inmate Organs for Liberty:
Diminishing the “Yuck Factor” in the
Bioethics Repugnance Debate
Jamila Jefferson-Jones*†
Mississippi Governor Haley Barbour announced the release of Jamie
and Gladys Scott on December 29, 2010.1 This decision indefinitely
suspended their double life sentences and freed them after sixteen years in
prison for armed robbery.2 The price of their liberty: Gladys’s kidney.3
Barbour released Jamie Scott on the condition that she comply with the
usual parole obligations.4 However, in his official statement regarding the
release of the Scott Sisters, Governor Barbour said that “Gladys Scott’s
release is conditioned on her donating one of her kidneys to her sister, a
procedure which should be scheduled with urgency.”5
The story of the Scott Sisters’ release and the condition imposed upon
Gladys Scott reflexively elicits an intense and typically negative response
from law professors, lawyers, doctors and lay people alike.6 But, what is it

* Jamila Jefferson-Jones, J.D., Harvard Law School, A.B., Harvard College is an Assistant Professor
of Law at Barry University’s Dwayne O. Andreas School of Law in Orlando, Florida.
†

Thank you to Dean Leticia Diaz for her generous support of my research; Professor Michele
Goodwin, Professor andré cummings, and Professor Kathy Cerminara for their comments; the
participants at the 2011 Florida Legal Scholarship Forum, the Central States Law School Association
2011 Annual Conference, and the 2012 Southeast/Southwest People of Color Legal Scholarship
Conference; Katherine Klapsa, my research assistant at Barry University Dwayne O. Andreas School
of Law and Christinia Townsend and Daryl Smith, my research assistants during my visit at
Mississippi College School of Law, for their excellent research and citation support; Professor Jelani
Jefferson Exum, Professor Jalila Jefferson-Bullock and William J. Jefferson for their comments and
constant encouragement; and Phillip Jones for his unfailing support.
1.
Gov. Barbour’s Statement Regarding Release of Scott Sisters, GOVERNORBARBOUR.COM
(Dec. 29, 2010), www.governorbarbour.com/news/2010/dec/12.29.10scottsistersrelease.html.
2.

Id.

3.

Id.

4. See Saeed Shabazz, Scott Sisters [sic] Suffering a sSgn [sic] of Criminal Justice Failures,
CINCINNATI HERALD, May 14, 2011, http://www.thecincinnatiherald.com/news/20110514/News/Scott_Sisters_Suffering_a_sSgn_of_Criminal_Justice.html (stating that the Scott Sisters
“are required to undergo constant supervision, steer clear of any associates with criminal records,
pay $52 a month to the state of Mississippi for upkeep and cannot travel without court permission.”).
5.

Gov. Barbour’s Statement Regarding Release of Scott Sisters, supra note 1.

6.

This negative response is not just limited to that of the author’s friends and acquaintances.

Electronic copy available at: http://ssrn.com/abstract=2251248

JJJ Contract Proof (D O NOT DELETE)

106

The Journal of Gender, Race & Justice

2/15/2013 5:38 PM

[16:2013]

about this story that causes the listener to bristle, raise an eyebrow, or screw
her face into a frown? Is it because the required kidney donation is likely
illegal?7 Those who have heard about the Scott Sisters do not focus on the
probable illegality, though some do recognize it. Rather, they focus
specifically on the “yuck factor”—a strong sentiment that what they just
heard is unfair, unseemly, or just plain wrong.
The term “yuck factor” is shorthand to express that one’s negative gut
reaction to a thing, action, or idea proves it is intrinsically harmful and
ultimately unethical.8 In the field of bioethics, arguments are rooted in the
“yuck factor” in an effort to defeat the usage or expansion of
biotechnological advances such as human cloning,9 nanotechnology
(including nanobiotechnology and nanomedicine),10 assisted human
reproduction,11 human-animal chimera creation,12 human biological
See Organ Transplant Is Sister’s Key to Freedom, L.A. TIMES, Dec. 31, 2010, available at 2010
WLNR 25667808 (citing the negative reactions of bioethicists and organ transplantation experts).
7. The likely illegality of Governor Barbour’s clemency condition is discussed more fully in
Part I. See infra Part I.
8.
“Yuck factor” has come to be used synonymously with the phrase “the wisdom of
repugnance,” which was coined by Leon R. Kass, former chairman of the President’s Council on
Bioethics (2002–2005). See, e.g., David Orentlicher, Cloning and the Preservation of Family
Integrity, 59 LA. L. REV. 1019, 1026–27 (1999); Ronald Chester, Cloning Embryos from Adult
Human Beings: The Relative Merits of Reproductive, Research and Therapeutic Uses, 39 NEW ENG.
L. REV. 583, 594 (2004–2005). Kass, in discussing his opposition to human cloning argued that “in
crucial [bioethical] cases, . . . repugnance is the emotional expression of deep wisdom, beyond [a
person’s] power to fully articulate it.” Leon Kass, The Wisdom of Repugnance, 216 NEW REPUBLIC
22, 17–26 (June 2, 1997); Leon Kass & James Wilson, The Wisdom of Repugnance, in THE ETHICS
OF HUMAN CLONING 3–59 (1998).
9.
Leon R. Kass, The Wisdom of Repugnance: Why We Should Ban the Cloning of Humans,
32 VAL. U. L. REV. 679 (1998). But see Orentlicher, supra note 8, at 1027 (agreeing that that which
feels yucky does raise a “red flag”, but the proper response is “further analysis” to discern whether
the discomfort is irrational or warranted).
10.
See Gary E. Marchant et al., What Does the History of Technology Regulation Teach Us
About Nano Oversight?, 37 J.L. MED. & ETHICS 724, 727 (2009) (noting that “[f]or many emerging
technologies, including nanotechnology, public concerns tend to have a strong social or ethical
element” that includes “the ever-present ‘yuck’ factor or repugnance in response to technological
developments that cause discomfort or unease”).
11.
See Maneesha Deckha, Holding onto Humanity: Animals, Dignity, and Anxiety in
Canada’s Assisted Human Reproduction Act, 5 UNBOUND: HARV. J. LEGAL LEFT 21, 51–52 (2009),
available at http://www.legalleft.org/pdfs/2009/2-holding_onto_humanity.pdf (concluding that the
“‘yuck’ factor was influential in generating the prohibitions” contained in the Canadian Assisted
Human Reproduction Act).
12.
See Rebecca A. Ballard, Animal/Human Hybrids and Chimeras: What Are They? Why Are
They Being Created? And What Attempts Have Been Made to Regulate Them?, 12 MICH. ST. U. J.
MED. & L. 296, 319 (2008) (arguing that if society desires cures to various diseases, “some sacrifices
. . . have to be made; typically that means developing a comfort level with what is frequently
refer[red] to as our initial ‘yuck’ factor”); Tia Sherringham, Comment, Mice, Men, and Monsters:
Opposition to Chimera Research and the Scope of Federal Regulation, 96 CALIF. L. REV. 765, 775–
776 (2008) (identifying the “instinctive hostility” that some experience at the contemplation of the

Electronic copy available at: http://ssrn.com/abstract=2251248

JJJ Contract Proof (DO NOT DELETE)

The Exchange of Inmate Organs for Liberty

2/15/2013 5:38 PM

107

enhancement (such as steroid usage and certain cosmetic surgeries),13 and
human embryonic stem cell research.14 Critics, however, note that “yuck
factor” arguments are, by their very nature, anti-intellectual in that such
arguments allow their proponents to eschew logic in favor of an appeal to
emotion.15 Moreover, critics voice concerns that feelings-based
policymaking in the field of biotechnology could lead to discriminatory
policymaking in other areas that those currently wielding power find to be
personally distasteful.16
The same repugnant sentiment that accompanies Gladys Scott’s kidneyliberty exchange has been noted by those who oppose systems that would
allow living donors to sell their organs to prospective donees.17 However,
critics of living donor organ sales have developed their arguments well
beyond “yuck” or unreasoned repugnance, contending that under such
creation of a human-animal chimera as a “yuck factor” response).
13.
Henry T. Greely, Remarks on Human Biological Enhancement, 56 U. KAN. L. REV. 1139,
1153–54 (2008).
14.
See Susan E. Wills, Federal Funding of Human Embryonic Stem Cell Research - Illegal,
Unethical and Unnecessary, 18 J. CONTEMP. HEALTH L. & POL’Y 95, 105 (2001) (noting that the
Human Embryonic Research Panel of the National Institute of Health (NIH) had rejected research
proposals that it thought would fail the “‘public yuck factor’ test”); see also J. Frederick Miller, Jr.,
Comment, Promoting Life?: Embryonic Stem Cell Research Legislation, 52 CATH. U. L. REV. 437,
473 n.229 (2003) (arguing that the “yuck factor” response engendered by cloning could apply to
embryonic stem cell research).
15.
See MARTHA C. NUSSBAUM, HIDING FROM HUMANITY: DISGUST, SHAME AND THE LAW
74 (2004) (arguing that disgust is “of dubious reliability . . . in the life of the law”); Chester, supra
note 8, at 594 (characterizing “yuck factor” arguments as “weak” responses to the utility of
reproductive cloning); Greely, supra note 13, at 1153–54 (criticizing “yuck factor” arguments in the
context of human biological enhancements as lacking “intellectual meat”); Sherringham, supra note
12, at 776 (urging that, in the context of human-animal chimera creation, “yuck factor”-based
criticism is insufficiently persuasive unless coupled with a reasoned explanation of the reaction);
Steven Pinker, The Stupidity of Dignity: Conservative Bioethics’ Latest, Most Dangerous Ploy, NEW
REPUBLIC, May 2008, http://pinker.wjh.harvard.edu/articles/media/The%20Stupidity%20of%20
Dignity.htm (critiquing Leon Kass’s theory regarding the “wisdom of repugnance” on the grounds
that the notion of human dignity propounded by Kass is “a squishy, subjective notion, hardly up to
the heavyweight moral demands assigned to it”).
16.
See Deckha, supra note 11, at 52 (“[T]he danger of listening to a ‘yuck’ response resides
in the fact that prejudices and hegemonic norms may cultivate that response.”); John Kunich, The
Tears of a Clone: The Unintended Consequences of Bans on Cloning, 25 WOMEN’S RTS. L. REP.
195, 196 (2004) (arguing that using the “yuck factor” as a basis for banning human cloning can “lead
to erosions of other cherished personal liberties and rights”).
17.
These critics usually couch their opposition in terms of forgoing commodification in favor
of preserving human dignity. See, e.g., Cynthia B. Cohen, Public Policy and the Sale of Human
Organs, 12 KENNEDY INST. ETHICS J. 1, 48–49, 58 (2002) (arguing that the payment of organ donors
would constitute a “deni[al] of embodied human dignity . . . would violate a fundamental conviction
. . . that we should not treat human beings . . . as commodities”); Francis L. Delmonico et al., Ethical
Incentives—Not Payment—for Organ Donation, 346 NEW ENG. J. MED. 2002, 2004 (2002) (likening
the sale of human organs to prostitution). In addition to critics of living donor sales, there are also a
host of critics of sales of cadaveric organs. However, cadaveric sales are not within the scope of this
Article.

JJJ Contract Proof (D O NOT DELETE)

108

2/15/2013 5:38 PM

The Journal of Gender, Race & Justice

[16:2013]

systems healthy poor people who lack the information necessary to give
informed consent will be coerced by the ailing rich into selling their
organs.18 They further urge that these organ vendors will ultimately be
disadvantaged physically and financially.19 Critics also note the potential
vendor’s loss (or partial loss) of an organ, for which she may not have
received adequate medical care, and the desperation that may have caused
her to misrepresent her eligibility to donate in order to reap the perceived
financial benefits of donating, as among the hazards of living donor sales.20
However, the “yuck factor” engendered by Governor Barbour’s grant of
conditional release appears to be based upon its coercive nature.21 As noted,
those who disfavor organ sales argue that those lacking financial means will
be forced into selling their body parts to the highest bidder.22 In the Scott
Sisters’ case, coercion takes the form of the powerful, white, male Governor
of Mississippi requiring an imprisoned Black23 woman to forfeit an organ in
order to secure her freedom and that of her sister.24
What happens if the Scott Sisters’ story is replicated—if it is multiplied
18.
See Delmonico et al., supra note 17, at 2005 (“[A] poor person feels compelled to risk
death for the sole purpose of obtaining monetary payment for a body part.”).
19.
See Madhav Goyal et al., Economic and Health Consequences of Selling a Kidney in
India, 288 JAMA 1589, 1591 (2002) (concluding that those who sold their organs in Chennai, India
were ultimately disadvantaged by continued poverty coupled with poor health); Jeffrey P. Kahn,
Studying Organ Sales: Short Term Profits, Long Term Suffering, CNN HEALTH (Oct. 10, 2002),
http://articles.cnn.com/2002-10-01/health/ethics.matters.selling.organs_1_kidney-donors-organsales-organ-donors?_s=PM:HEALTH (arguing that Goyal’s conclusions regarding the Indian organ
vendors is relevant to discussions of proposed U.S. organ sales). But see James Stacey Taylor &
Mary C. Simmerling, Donor Compensation Without Exploitation, in WHEN ALTRUISM ISN’T
ENOUGH: THE CASE FOR COMPENSATING KIDNEY DONORS 50, 59–60 (Sally Satel ed., 2008)
(arguing that Goyal’s findings have little relevance in the U.S. context).
20.
See Gabriel M. Danovitch & Alan B. Leichtman, Kidney Vending: The ‘Trojan Horse’ of
Organ Transplantation, 1 CLINICAL J. AM. SOC’Y NEPHROLOGY 1133, 1133 (2006) (“In a vending
system, in which regard for the recipient is divorced from the motivation for donation, powerful
financial incentives for a donor not to be forthcoming about critical information could affect both
their own health and that of the recipient . . . .”). But see Taylor & Simmerling, supra note 19, at 58
(advocating that proper screening will eliminate donor deception regarding eligibility).
21.
See infra Part III.A (noting the Scott Sisters’ relative powerlessness as compared to
Barbour and the “yuck factor” engendered by the convergence of Jamie’s need for a kidney with
Barbour’s political aspirations).
22.

Delmonico et al., supra note 17, at 2004.

23.
This Article uses the capitalized term “Black” when referring to people of African descent
individually or collectively because “Blacks, like Asians, Latinos, and other ‘minorities,’ constitute a
specific cultural group and, as such, require denotation as a proper noun.” Kimberlé Williams
Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination
Law, 101 HARV. L. REV. 1331, 1332 n.2 (1988). It follows then that this Article does not capitalize
“white,” “which is not a proper noun, since whites do not constitute a specific cultural group.”
Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against
Women of Color, 43 STAN. L. REV. 1241, 1244 n.6 (1991).
24.

Gov. Barbour’s Statement Regarding Release of Scott Sisters, supra note 1.

JJJ Contract Proof (DO NOT DELETE)

The Exchange of Inmate Organs for Liberty

2/15/2013 5:38 PM

109

across prison populations? If programs were put into place that allowed
prison inmates to trade their kidneys (or portions of their lungs, livers, or
pancreases) for liberty, it follows that the “yuck factor” would be multiplied
exponentially. However, it must be noted that in devising his peculiar
condition of release, Governor Barbour chose a course of action that was,
ironically, unobjectionable to the civil rights community (including the
state’s Black activist community) that was clamoring for the release of the
Scott Sisters.25 The Scott Sisters’ clemency case is particularly intriguing in
that civil rights activists cheered, rather than crying, “Yuck!” and objecting
to the terms of release imposed by the Governor.26 The outcry from some
bioethicists notwithstanding, this scenario begs the question of why we
should not allow other prisoners—those to whom serendipity has not
provided an ailing sister—to do the same and whether it is in fact possible to
do so while avoiding, or at least mitigating repugnance.
This Article contemplates whether the National Organ Transplant Act’s
(NOTA)27 prohibition against the trading of organs for “valuable

25.
See Statement by Benjamin Todd Jealous on the Release of the Scott Sisters, NAACP.ORG
(Dec. 31, 2010), http://www.naacp.org/blog/entry/statement-by-benjamin-todd-jealous-on-therelease-of-the-scott-sisters/ (praising the local NAACP chapter, the local Black newspaper, the
Jackson Advocate, a “whole family of civil and human rights organizations,” and a “chorus of
activists” for their efforts in seeking the release of the Scott Sisters).
26.
See Id. (Governor Barbour’s release of the Scott Sisters “is a shining example of the way
clemency power should be used”); Mississippi Governor Wants Sick Inmates’ Cases Reviewed,
CLARION-LEDGER, Dec. 31, 2010, available at 2010 WLNR 25707146 (noting that “numerous
advocates [including Ben Jealous, president and CEO of the NAACP, Derrick Johnson, president of
the Mississippi NAACP, and Jaribu Hall, executive director of the Mississippi Workers Center for
Human Rights gathered to] . . . celebrate the governor’s decision regarding the [release of] the Scott
Sisters). Part of the lack of a civil rights outcry may be from the NAACP’s belief that the kidney
donation condition imposed on Gladys is unenforceable. Jimmie E. Gates, Scott Sister Must Lose
120 Lbs., CLARION-LEDGER, Jan. 26, 2011, available at 2011 WLNR 1586366. NAACP President
Benjamin Jealous announced that Governor Barbour assured him that Gladys would not be returned
to prison in the event that Jamie and Gladys are not a proper tissue match. Krissah Thompson,
Prison Release “Conditioned On” Kidney Donation, WASH. POST, Dec. 31, 2010,
http://www.washingtonpost.com/wp-dyn/content/article/2010/12/30/AR2010123004722.html.
Likewise, the Scott Sisters’ attorney, Jackson, Mississippi City Councilman Chokwe Lumumba, said
that the Governor’s attorney noted that Gladys would not be imprisoned if the transplant cannot take
place for medical reasons. Scott Sisters’ Mom Plans Homecoming, CLARION-LEDGER, Dec. 31,
2010, available at 2010 WLNR 25707120. These revelations prompted one commentator to question
whether Galdys’s release can truly be said to be conditioned upon her donating her kidney to Jamie.
Christopher M. Burkle, 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?,
86 MAYO CLINIC PROC. 414, 417 (2011). The lack of pushback from the general public in
Mississippi may in part stem from claims by both the governor and Gladys Scott that she had
previously volunteered to donate her kidney to Jamie. Id. See discussion infra Part I (regarding the
importance of whether Gladys actually did volunteer).
27.
National Organ Transplant Act, 42 U.S.C. §§ 273–74 (2004). National Organ Transplant
Act of 1984, Pub. L. No. 98–507, tit. 3, §301, 98 Stat. 2346 (codified as amended at 42 U.S.C. §
274e (2006)).

JJJ Contract Proof (D O NOT DELETE)

110

The Journal of Gender, Race & Justice

2/15/2013 5:38 PM

[16:2013]

consideration”28 should include an exception that would allow state and
federal prison inmates to donate organs in exchange for release or credit
toward release. Such a stance surely raises questions regarding whether the
State would be coercing the forfeiture of body parts as punishment or in
exchange for freedom. Moreover, critics may question the potential effects
on the criminal justice system including the permissibility or legality of
allowing those facing incarceration to bargain their bodies, and conceivably
their long-term health, in exchange for reduced prison terms. It must also be
noted that “yuck factor” arguments have been used by proponents of the
altruistic organ donation system codified by NOTA as one of the bases for
keeping the altruistic system in place rather than allowing any measure of
consideration to be given to donors.29
Conceivably, such an inmate organ donation program is only feasible if
a system is devised to remove the “yuck factor” by eliminating coercion
from the equation and by addressing the other concerns that mirror those
addressed in the living donor sales debate. Such a program would need to
reframe the legal context in which the Scott Sisters’ clemency condition was
crafted into one in which a great measure of power and choice resides
instead in the hands of the inmate participants. An exception to NOTA’s
valuable consideration prohibition could also serve to modernize our current
altruistic organ donation policy into one that may allow for future flexibility
in responding to needs of both potential donors and donees.
Part I of this Article discusses the legality of the clemency condition
imposed upon Gladys Scott. Part II frames the background of the Scott
Sisters/Haley Barbour narrative, specifically focusing on the interplay of the
parties’ particular histories with Professor Derrick Bell’s theory of interest
convergence. Finally, in Part III, this Article proposes a framework for a
program wherein inmates may be able to exchange organs for liberty without
triggering a “yuck factor” response.
I. NOTA AND THE IL(LEGALITY) OF GOVERNOR BARBOUR’S KIDNEY
CLEMENCY CONDITION
This Part discusses the legality of Barbour’s kidney clemency condition
in the context of the current kidney shortage. It examines the prohibition on
organ purchases imposed by NOTA and various state and federal attempts to
provide donor incentives short of prohibited direct cash payments to donors

28.
National Organ Transplant Act of 1984, Pub. L. No. 98–507, tit. 3, §301, 98 Stat. 2346
(codified as amended at 42 U.S.C. §274e (2006)). (“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 . . . .”) (emphasis added).
29.
See, e.g., Delmonico et al., supra note 17 (equating the exchange of human organs for
consideration with a practice commonly established as repugnant—prostitution).

JJJ Contract Proof (DO NOT DELETE)

2/15/2013 5:38 PM

The Exchange of Inmate Organs for Liberty

111

or their families. Finally, this Part concludes that the liberty-kidney
exchange offered by Barbour to Gladys Scott violates Section 301 of NOTA
as liberty is “valuable consideration” under the statute.
A. The Relevant Demographics of the Kidney Shortage
There were over 115,000 people on the United States organ transplant
waiting list by the beginning of the first quarter of 2012.30 Of those, nearly a
third—approximately 93,000—are waiting for a kidney.31 However, only
approximately 16,000 kidney transplants are performed each year. 32
Additionally, only a little more than one-third of the kidneys that are
transplanted come from living donors,33 although living-donor kidneys are
of a higher overall quality, and survive in a recipient on average for twice as
long as deceased-donor kidneys.34
The shortage of kidney donors, both living and deceased, has resulted in
lengthy wait times for kidney transplants; nearly half of the patients on the
kidney transplant waiting list have been on the list for two years or more.35
Nearly a third of hopeful kidney recipients have been waiting for three or
more years.36 The consequences of waiting are oftentimes deadly as between
approximately 4,100 and 4,700 people per year die of end-stage renal

30.
Health Res. & Servs. Admin., U.S. Dep’t of Health & Human Servs., Data, ORGAN
PROCUREMENT & TRANSPLANTATION NETWORK, http://optn.transplant.hrsa.gov/data (last visited
Oct. 26, 2012) [hereinafter OPTN].
31.
Id. The data related herein regarding those on the kidney transplant waiting list does not
include those individuals who are waiting for a kidney along with another organ.
32.
Id. (follow “National Data” on side bar; then choose category “Transplant”; choose organ
“Kidney”; choose “Transplants by State”).
33.
Id. (follow “National Data” on side bar; then choose category “Transplant”; choose organ
“Kidney”; choose “Living Donor Transplants by State”).
34.
Sally Satel, Introduction, in WHEN ALTRUISM ISN’T ENOUGH: THE CASE FOR
COMPENSATING KIDNEY DONORS 1, 5 (Sally Satel ed., 2008).
35.
OPTN, supra note 30 (follow “Build Advanced” on side bar; then in Step 1 (choose a data
category) choose “Waiting List”; in Step 2 (choose report columns), choose “Waiting Time” and
leave other options under Step 2 blank; in Step 3 (choose report rows), choose “Ethnicity” and leave
other options under Step 3 blank; in Step 4 (chose your style), choose display “Counts” and choose
desired format; in the “Optional” section, choose organ “Kidney,” choose count “Candidates” and
leave other categories blank).
36.
Id. (follow “Build Advanced” on side bar; then in Step 1 (choose data) choose “Waiting
List”; in Step 2 (choose report columns), choose “Waiting Time” and leave other option under Step
2 blank; in Step 3 (choose report rows), choose “Ethnicity” and leave other options under Step 3
blank; in Step 4 (chose your style), choose display “Counts” and choose desired format; in the
“Optional” section, choose organ “Kidney,” choose count “Candidates” and leave other categories
blank).

JJJ Contract Proof (D O NOT DELETE)

112

The Journal of Gender, Race & Justice

2/15/2013 5:38 PM

[16:2013]

disease (ESRD) while waiting for a kidney.37
The statistics for Black ESRD patients are even more alarming than the
overall national data. Blacks represent only thirteen percent of the United
States population,38 but, disproportionately, represent approximately thirty
percent of those on the kidney waiting list.39 The number of Black patients
who have been hoping for a kidney for two years or more and three years or
more are fifty-three percent and thirty-six percent respectively.40 Blacks who
are on the kidney waiting list also die at a rate averaging approximately
1,500 people per year—a number that represents thirty-eight percent of all
kidney waiting list deaths.41
The number of Mississippians anticipating an organ transplant is quite
small relative to the rest of the nation: 215 individuals.42 These patients are
almost exclusively in need of kidneys.43 Black Mississippians are more
disproportionately represented on that state’s kidney transplant waiting list
than nationally, as approximately three-quarters of Mississippi’s ESRD
patients on the kidney waiting list are Black.44 Blacks, however, make up
only thirty-seven percent of Mississippi’s total population.45 Given these
statistics, it is hardly surprising that three-quarters of those who died in

37.
Id. (follow “National Data” on side bar; then choose category “Waiting List Removals”;
choose organ “Kidney”; choose count “Candidates”; choose “Death Removals by State by Year”).
38.
State and County QuickFacts:USA, U.S. CENSUS BUREAU, http://quickfacts.census.gov
/gfd/states/00000.html (last visited Nov. 12, 2012).
39.
OPTN, supra note 30 (follow “National Data” on side bar; then choose category “Waiting
List”; choose count “Candidates”; choose “Organ by Ethnicity”).
40. Id. (follow “Build Advanced” on side bar; then in Step 1 (choose data), choose “Waiting
List”; in Step 2 (choose report columns), choose “Waiting Time” and leave other option under Step
2 blank; in Step 3 (choose report rows), choose “Ethnicity” and leave other options under Step 3
blank; in Step 4 (chose your style), choose display “Counts” and choose desired format; in the
“Optional” section, choose organ “Kidney,” choose count “Candidates” and leave other categories
blank).
41.
Id. (follow “National Data” on side bar; then choose category “Waiting List Removals”;
choose organ “Kidney”; choose count “Candidates”; choose “Death Removals by Ethnicity by
Year”).
42.
Id. (follow “State Data” on side bar; then chose Mississippi; choose category “Waiting
List”; choose count “Candidates”; choose “Overall by Organ”).
43.
Of the 215 waiting list patients in Mississippi, 195 are waiting for kidneys; the remaining
twenty are waiting for a heart transplant. Id. (follow “State Data” on side bar; then choose
Mississippi; choose category “Waiting List”; chose count “Candidates”; choose “Overall by
Organ”).
44.
Id. (follow “State Data” on side bar; then choose Mississippi; choose category “Waiting
List”; choose count “Candidates”; choose “Organ by Ethnicity”).
45. State and County Quick Facts: Mississippi, U.S. CENSUS BUREAU, http://quickfacts.
census.gov/qfd/index.html (last visited Nov. 12, 2012).

JJJ Contract Proof (DO NOT DELETE)

2/15/2013 5:38 PM

The Exchange of Inmate Organs for Liberty

113

Mississippi in the last year while awaiting a kidney transplant were Black.46
B. NOTA’s Prohibition of Incentivized Organ Exchanges
Despite the nationwide kidney shortage, federal transplant policy has
clung steadfastly to altruistic giving in the area of organ donation and has
resisted compensating donors or their families in any way.47 With regard to
living donors, a regime of uncompensated and unincentivized donating is
enforced through NOTA.48 Specifically, Section 301 of NOTA, entitled
“Prohibition of Organ Purchases,”49 prohibits the “transfer [of] any human
organ for valuable consideration for use in human transplantation.”50 It also
imposes a fine of up to $50,000 and five years in prison upon one who
knowingly violates that prohibition.51 Proponents of keeping Section 301
unchanged often note their repugnance at any modification to NOTA that
might result in the commodification of human organs.52
Section 301 lists kidneys as among its defined “human organs,”53 but
fails to positively define what constitutes “valuable consideration.” Instead,
the term is defined in the negative. Thus, “‘valuable consideration’ does not
include the reasonable payments associated with the removal, transportation,
implantation, processing, preservation, quality control, and storage of a
human organ.”54 This permits hospitals, doctors, organ procurement

46.
This percentage reflects deaths from 1995 through September 2012. OPTN, supra note 30
(follow “State Data” on side bar; then choose Mississippi; choose category “Waiting List
Removals”; choose organ “Kidney”; choose count “Candidates”; choose “Death Removals by
Ethnicity by Year”).
47.
Chad A. Thompson, Organ Transplantation in the United States: A Brief Legislative
History, in WHEN ALTRUISM ISN’T ENOUGH: THE CASE FOR COMPENSATING KIDNEY DONORS 131,
141–43 (Sally Satel ed., 2008).
48.

National Organ Transplant Act, 42 U.S.C. §§ 273–274 (2004).

49.
National Organ Transplant Act of 1984, Pub. L. No. 98–507, tit. 3, §301, 98 Stat. 2346
(codified as amended at 42 U.S.C. §274e (2006)).
50.

Id. § 274e(a).

51.

Id. § 274e(b).

52.
See, e.g., Delmonico et al., supra note 17 (comparing the sale of human organs to
prostitution).
53.
42 U.S.C § 274e(c)(1) (“The term ‘human organ’ means the human (including fetal)
kidney, liver, heart, lung, pancreas, bone marrow, cornea, eye, bone, and skin or any subpart thereof
and any other human organ (or any subpart thereof, including that derived from a fetus) specified . . .
by regulation.”); see also 42 C.F.R. § 121.13 (2011) (“‘Human organ,’ as covered by section 301 of
the National Organ Transplant Act, as amended, means the human (including fetal) kidney, liver,
heart, lung, pancreas, bone marrow, cornea, eye, bone, skin, and intestine, including the esophagus,
stomach, small and/or large intestine, or any portion of the gastrointestinal tract.”).
54.

42 U.S.C. § 274e(c)(2).

JJJ Contract Proof (D O NOT DELETE)

114

The Journal of Gender, Race & Justice

2/15/2013 5:38 PM

[16:2013]

agencies, and other medical industry providers to receive payment for their
services.55 Donors, on the other hand, are only allowed to recoup certain
losses: “the expenses of travel, housing, and lost wages incurred by the
donor . . . in connection with the donation of the organ.”56
Despite the lack of a concrete definition of “valuable consideration”
under Section 301, it has been widely accepted that not only are direct cash
payments to donors prohibited, but that a wide range of donor incentives are
also violate NOTA. Therefore, when scholars and policy-makers have
proposed various incentive regimes aimed at increasing the number of organ
donors, those proposals have usually been made with an eye toward
amending Section 301 to expand the list of that which does not amount to
valuable consideration.57 These proposed incentives have included college
scholarships,58 housing,59 and the payment of household bills.60
Additionally, federal lawmakers have tried unsuccessfully to provide living
organ donors with tax credits, life insurance policies, and guaranteed unpaid
medical leave in exchange for their donations.61 State legislative efforts have
largely mirrored those of their federal counterparts both in their tactics and
in their overall failure to mitigate organ shortages.62 One notable exception
is South Carolina’s failed effort at instituting an inmate organ-for-liberty
exchange.63 However, unlike Barbour, the proponents of the measure in
South Carolina recognized the danger that such an exchange may have run

55.

See id.

56.
Id.; see also Charlie W. Norwood Living Organ Donation Act, Pub. L. No. 110–144, 121
Stat. 1813 (codified as amended at 42 U.S.C. §§ 273–274 (2007)) (clarifying that paired donations—
those in which the intended recipient of an organ donation receives a donation from another donor
when she is not biologically compatible with her intended donor—do not constitute the transfer of a
human organ for valuable consideration).
57.
See, e.g., Michele Goodwin, The Body Market: Race Politics & Private Ordering, 49
ARIZ. L. REV. 599, 617 (2007) (advocating that organ donors or their families should receive
alternative remuneration such as scholarships for higher education, housing, or the payment of
household expenses); Jake Linford, The Kidney Donor Scholarship Act: How College Scholarships
Can Provide Financial Incentives for Kidney Donation While Preserving Altruistic Meaning, 2 ST.
LOUIS U. J. HEALTH L. & POL’Y 265 (2009) (arguing that providing kidney donors with scholarships
for higher education would not run counter to the values of altruistic organ donation).
58.

Linford, supra note 57, at 267.

59.

Goodwin, supra note 57, at 617.

60.

Id.

61.
Chad Thompson, supra note 47, at 141–43. But see Organ Donor Leave Act, Pub. L. No.
106-56, 113 Stat. 407 (codified as amended in scattered sections of 5 U.S.C. (1999)) (providing
federal employees with seven days’ paid leave for donating bone marrow and thirty days of paid
leave for donating organs).
62.

See Chad Thompson, supra note 47, at 140.

63.

See discussion infra Part I.C.

JJJ Contract Proof (DO NOT DELETE)

2/15/2013 5:38 PM

The Exchange of Inmate Organs for Liberty

115

afoul of NOTA.64
C. Liberty as “Valuable Consideration” Under Section 301 of NOTA
When questioned about the legality of his kidney donation condition,
Governor Barbour noted that Gladys Scott volunteered to donate her kidney
to her sister and that Gladys’s offer weighed favorably in his decision to
grant clemency to them.65 The Governor’s spokesperson denied that the
exchange may have been illegal and instead pointed to Gladys’s petition to
the parole board in which she indicated her willingness to donate.66 Gladys
Scott even publicly claimed that it was her idea to donate her kidney to
Jamie and that she would have done so willingly, even without the promise
of freedom.67 This Article argues that one may therefore surmise that both
Gladys and the Governor thought that the potential issue of valuable
consideration (to the extent that they were aware of the issue) was
meaningless because Gladys actually wanted to give a kidney to Jamie.
Whether Gladys volunteered to donate her kidney to Jamie is immaterial to
whether a violation of NOTA occurred.68 Rather, in order to decide whether
Barbour violated NOTA, one must determine whether Gladys is to receive
64.
See Jenny Jarvie, Inmates Could Trade an Organ for an Early Out, L.A. TIMES, Mar. 9,
2007, available at 2007 WLNR 4464503 (reporting that legislators would refrain from debating the
bill until they were able to determine whether the reduced sentences contemplated by the measure
constituted “‘valuable consideration’”).
65.
See Scott Sisters Freed From Prison, CLARION-LEDGER, Jan. 8, 2011, available at 2011
WLNR 452375 (quoting the Governor as saying, “(Gladys) [sic] asked for the opportunity to give
her sister a kidney and we’re making that opportunity available to her”).
66.
See Organ Transplant Is Sister’s Key to Freedom, supra note 6 (quoting Barbour’s
spokesman, Dan Turner, as saying that the idea that Gladys would donate her kidney to Jamie was
“some- thing [sic] that she [Gladys] came up with . . . . not an idea the governor’s office brokered.
It’s not a quid pro quo” reporting that Gladys Scott volunteered to donate a kidney to Jamie in her
petition for early release).
67.
See Gladys Scott:‘I’m Not Bitter’, CLARION-LEDGER, Apr. 6, 2011, available at 2011
WLNR 6727736 (quoting Gladys Scott as saying, “I was going to give it [my kidney] to her [Jamie]
anyway — he [Governor Barbour] didn’t have to let me out of prison to do that”).
68.
In an interview with the Los Angeles Times, Professor George Cochran of the University
of Mississippi School of Law stated that he believed there to be no legal problem with Barbour’s
kidney donation clemency condition since Gladys Scott volunteered to donate to Jamie. Organ
Transplant Is Sister’s Key to Freedom, supra note 6. In this same news article, Professor Cochran’s
opinion is directly disputed by Dr. Michael Shapiro of United Network of Organ Sharing’s (UNOS)
ethics committee because of Dr. Shapiro’s contention that the clemency condition constitutes
impermissible valuable consideration under Section 301 of NOTA. Id. Professor Cochran, in
explaining his position, noted: “You have a constitutional right to body integrity, but when you
consent [to donate an organ], you waive that [right].” Holbrook Mohr, Is Kidney Donation Price of
Parole or Governor’s Kindness?, PITTSBURGH POST-GAZETTE, Dec. 31, 2010, http://www.postgazette.com/stories/news/us/is-kidney-donation-price-of-parole-or-mississippi-governors-kindness279895/. This analysis discounts the role that Section 301 of NOTA plays in determining the legality
of the Scott Sisters’ exchange.

JJJ Contract Proof (D O NOT DELETE)

116

The Journal of Gender, Race & Justice

2/15/2013 5:38 PM

[16:2013]

valuable consideration for her kidney.69 When Governor Barbour turned
Gladys’s voluntary offer to donate into a government mandate, he
fundamentally changed the exchange by introducing both coercion and
valuable consideration.70 Thus, just as the proposed federal and state
incentives discussed in Part I.B. violate Section 301, the kidney-for-liberty
clemency condition imposed upon Gladys Scott is likely a violation of
NOTA’s “valuable consideration” prohibition as well.71
Prominent medical ethicists appear to be of one accord: the clemency
condition imposed by Governor Barbour violates Section 301.72 Shortly after
the announcement of the Scott Sisters’ impending conditional release, Dr.
Michael Shapiro, chairman of the ethics committee of the United Network
for Organ Sharing (UNOS)73 was quoted as saying: “[i]f the governor is
trading someone 20 years for a kidney, that might potentially violate the
valuable consideration clause [of Section 301 of NOTA].”74 Likewise, Dr.
Arthur Caplan, director of the University of Pennsylvania’s Center for
Bioethics, expressed consternation at the condition imposed upon Gladys
Scott and opined that the condition is illegal.75 These opinions
notwithstanding, legislators and legal theorists have not uniformly shied
away from contemplating such a scheme. In 2007, South Carolina legislators
introduced Senate Bill 480 (SB 480), which provided a six-month sentence
reduction for inmates who consented to donate their kidney. SB 480 was
never enacted, in part due to reluctance on the part of legislators to debate
the bill until they were assured that it did not violate Section 301.76 Had its
proponents been successful in passing it, South Carolina would have been
the first state to reduce the prison sentences of its inmates in exchange for a
human organ, as defined by NOTA.77 Scholars writing about SB 480 rightly

69.

42 U.S.C. § 274e(a) (2006).

70.
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?_r=1 (quoting Dr. Arthur
Caplan, director of the Center for Bioethics at the University of Pennsylvania: “‘Either out of
ignorance or out of indifference, he [Barbour] shifted what had been a gift into compensation’”).
71.

See supra Part I.B.

72.
See Organ Transplant Is Sister’s Key to Freedom, supra note 6 (quoting Dr. Michael
Shapiro of the UNOS ethics committee and Dr. Arthur Caplan of the Center for Bioethics at the
University of Pennsylvania).
73.
UNOS is the private, non-profit organization that manages OPTN under contract with the
federal government per 42 U.S.C. § 274 (2006).
74.
Organ Transplant Is Sister’s Key to Freedom, supra note 6 (internal quotation marks
omitted).
75.

Id.

76.

Jarvie, supra note 64.

77.

In 1998, a bill was introduced in the Missouri legislature to create the “Life for a Life”

JJJ Contract Proof (DO NOT DELETE)

The Exchange of Inmate Organs for Liberty

2/15/2013 5:38 PM

117

argue that, despite the unquantifiable nature of liberty, “[c]ertainly [a
reduction in prison time]. . . must be considered ‘valuable consideration’ for
purposes of NOTA” and, thus, had SB 480 passed, it would have violated
Section 301.78 As evidence, one scholar noted that the government
recognizes the value of liberty by assenting to protect it through the due
process clauses of the Fifth79 and Fourteenth80 Amendments.81
Similarly, the Tenth Circuit articulated the importance of individual
liberty interests in United States. v. Singleton.82 In Singleton, a panel of the
court held that a federal prosecutor’s offer of leniency in exchange for a
witness’s testimony violated 18 U.S.C § 201(c)(2), a federal bribery statute
which provides that “whoever gives, offers or promises anything of value to
any person for or because of . . . testimony . . . shall be fined or imprisoned
for not more than two years, or both.”83 The panel decided that “anything of
value” included leniency in that “the recipient [of such leniency]
subjectively attaches value to [it].”84 Among other inducements, the leniency
offered by prosecutors may include reduced prison time or the possibility of
no prison time at all. Thus, the byproduct of prosecutorial leniency may, in
many cases, be liberty. Therefore under the Tenth Circuit’s reasoning in
Singleton, liberty is included in the definition of “anything of value” or, in
the parlance of NOTA, can be regarded as “valuable consideration.”85
It appears that Governor Barbour could have released both Scott Sisters
without the additional condition knowing that, if at all possible, Gladys
program, under which the sentences of death row prisoners would be commuted in exchange for
donating a kidney or bone marrow. Kim Bell, Bill Would Let Inmates Barter Their Organs, ST.
LOUIS POST-DISPATCH, Feb. 6, 1998, available at 1998 WLNR 938957. Unlike inmates under South
Carolina’s proposal, the Missouri prisoners’ sentence reductions would not have made them eligible
for eventual release, as their sentences would have been reduced to life without parole. Id.
78.
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, 549 (2009); see also
Burkle, supra note 26, at 416.
79.
U.S. CONST. amend. V (“No person shall . . . be deprived of life, liberty, or property,
without due process of law . . . .”).
80.
U.S. CONST. amend XIV, §1 (“nor shall any State deprive any person of life, liberty, or
property, without due process of law. . .”).
81.

Lee, supra note 78, at 550.

82.
United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), rev’d en banc, 165 F.3d 1297
(10th Cir. 1999).
83.

18 U.S.C. § 201(c)(2) (2006).

84.

Singleton, 144 F.3d at 1349.

85.
Although Singleton was reversed en banc, the reversal was based upon a finding that 18
U.S.C. § 210(c)(2)’s use of the word “whoever” did not apply to government prosecutors. See
Singleton, 165 F.3d at 1299. Left undisturbed was the reasoning that prosecutorial leniency and the
liberty that might be derived from it constituted something of value under the statute. See generally
id.

JJJ Contract Proof (D O NOT DELETE)

118

2/15/2013 5:38 PM

The Journal of Gender, Race & Justice

[16:2013]

would give Jamie her kidney. So, then why make kidney donation a
condition of Gladys’s release? Why release Gladys at all? She could, after
all, donate a kidney to her sister and then continue to serve out her
sentence.86 Rather, Barbour made the donation an explicit requirement of
Gladys’s continued freedom87 and in doing so, likely violated NOTA.88
Though some may object to Barbour’s actions, his decision raises the issue
of whether inmate organ donation should violate NOTA at all. The colliding
narratives of Barbour and the Scott Sisters demonstrate that the inmate organ
donation “yuck factor” can be diminished when interests converge, which
may allow for the re-thinking of NOTA’s apparent prohibition on inmate
organ donation for liberty.
II. INTEREST CONVERGENCE AND THE CREATION OF KIDNEY CLEMENCY
This Part frames the background of the Scott Sisters/Haley Barbour
narrative in an effort to explain how the interests of Governor Barbour and
the Scott Sisters converged in a manner that resulted in Barbour offering and
the Scott Sisters accepting the kidney donation clemency condition.
A. Narrative Collision and Interest Convergence: A Compromise that
Violates NOTA
After a decade behind bars, the Scott Sisters, who had steadfastly
maintained their innocence, gained the attention of the Innocence Project, a
national legal aid clinic dedicated to exonerating the wrongly convicted.89
However, the Scott Sisters’ plight did not garner the national media spotlight
until January of 2010 when doctors confirmed that Jamie’s kidneys were
failing.90 This revelation, coupled with pressure from the Scott family, the
NAACP, and local community leaders prompted Governor Barbour—then a
possible presidential candidate91—to free the Scott Sisters in January 2011.92
86.
This idea mirrors the sentiment expressed by Dr. Michael Shapiro of UNOS’s ethics
committee, who favors divorcing the legal issues in Gladys Scott’s case from the medical issues
faced by Jamie Scott. Krissah Thompson, supra note 26.
87.

Gov. Barbour’s Statement Regarding Release of Scott Sisters, supra note 1.

88.

See supra Part I.B.

89.
The Innocence Project expanded its New Orleans office into the State of Mississippi in
September of 2003. Project Aims to Battle “Miscarriages of Justice”, CLARION-LEDGER, Aug. 4,
2003, at A1, available at 2003 WLNR 18082571; Sisters Doing Life for Robbery Get Project’s
Attention, CLARION-LEDGER, Aug. 4, 2003, at A6, available at 2003 WLNR 18082572. The Scott
Sisters’ case was one of several Mississippi cases that the nascent office was reviewing. Id.
90.

See Williams, supra note 70.

91.
See Andrew Ferguson, The Boy from Yazoo City: Haley Barbour Mississippi’s Favorite
Son, WKLY. STANDARD, Dec. 27, 2010, at 20 (noting that Barbour had been fielding media questions

JJJ Contract Proof (DO NOT DELETE)

The Exchange of Inmate Organs for Liberty

2/15/2013 5:38 PM

119

There is, however, an argument that neither the pressure from inside
Mississippi—from the Scott family and the local NAACP—nor the pressure
exerted from outside of Mississippi—by the national NAACP, marchers,93
bloggers,94 or the national media—would have swayed Governor Barbour
had it not been for his own national political aspirations.95 Thus, in some
quarters, Governor Barbour’s release of the Scott Sisters was seen as a mere
political ploy. For example, Jamie and Gladys’s mother, Evelyn Rasco,
expressed this sentiment: “‘[t]o me [Barbour’s decision to release Jamie and
Gladys] was a political decision . . . . It’s not that he actually had any
sympathy for my daughters or cared about them.’”96
The Scott Sisters’ double life sentences were roundly criticized by civil
rights activists and the Scott Sisters’ national media advocates as examples
of racial disparities in sentencing.97 In this regard, studies have shown that
Blacks routinely receive harsher sentences than whites and, as compared to
whites, Blacks are far more likely to be disadvantaged with regard to the
decision to incarcerate at all.98 These sentencing disparities result in greater
about his presidential aspirations throughout 2010); see also Barbour Timeline, CLARION-LEDGER,
Apr. 26, 2011, available at 2011 WLNR 8082966 (chronicling Barbour’s appearances in New
Hampshire, Iowa, and Florida in the spring of 2011); What Are Barbour’s Chances?, CLARIONLEDGER, Feb. 27, 2011, at A1, available at 2011 WLNR 3860399 (reporting that Barbour had been
visiting the key early voting states of Iowa and South Carolina).
92.
Although Governor Barbour’s order releasing the Scott Sisters was signed on December
29, 2010, they were not actually released from custody until January 7, 2011. Gov. Barbour’s
Statement Regarding Release of Scott Sisters, supra note 1; Scott Sisters Free Today, CLARIONLEDGER, Jan. 7, 2011, at A1, available at 2011 WLNR 395769.
93.
In September of 2010, more than 300 people rallied at the state capitol in support of the
Scott Sisters. See Backers Hopeful Sisters to Be Freed, CLARION-LEDGER, Oct. 13, 2010, at B1,
available at 2010 WLNR 20448126; Scott Sisters to Be Freed, CLARION-LEDGER, Dec. 30, 2010,
available at 2010 WLNR 25703608.
94.
See Scott Sisters’ Mom Plans Homecoming, supra note 26 (reporting that the Scott
Sisters’ mother Evelyn Rasco credits their release to the five-year long internet campaign that she
and then-Loyola Chicago School of Law student Nancy Lockhard waged; Rasco and Lockhard
eventually built a network of more than 15,000 supporters across Europe, Africa and North
America); see also Williams, supra note 70 (“The effort on behalf of the sisters . . . was first taken
up by African-American-themed Internet sites . . . .”).
95.
See Recent Remarks Raise Suspicion Over Gov.’s Motive, CLARION-LEDGER, Dec. 31,
2010, at A1, available at 2010 WLNR 25707088 (reporting that “social networking sites . . . lit up
with speculation that the move [to release the Scott Sisters] was a political ruse to . . . shore up [his]
presidential campaign”).
96.

Scott Sisters Free Today, supra note 92.

97.
See, e.g., Leonard Pitts, Op-Ed., Justice, Mississippi Style, BUFFALO NEWS, Nov. 23,
2010, at A9, available at 2010 WLNR 23361245 (“[I]f you are poor or black, the justice system has
long had this terrible tendency to throw you away like garbage. If you doubt it, . . . [t]ry to imagine
some rich white girl doing double life for an $11 robbery. You can’t.”); see also discussion infra
Part II.C. (noting the rare circumstances of a judge’s reading the life sentence instruction in a
robbery relatively lacking in violence).
98.

TUSHAR KANSAL, RACIAL DISPARITY IN SENTENCING: A REVIEW OF THE LITERATURE 4

JJJ Contract Proof (D O NOT DELETE)

120

The Journal of Gender, Race & Justice

2/15/2013 5:38 PM

[16:2013]

rates of Black incarceration; for instance, the national incarceration rate is
497 per 100,000.99 However, the national rate of incarceration of Blacks is
over 5.5 times that national rate, at 2290 per 100,000.100 Mississippi’s rate of
Black incarceration, at 1742 per 100,000, though lower than the national
average, is still more than triple its rate of white incarceration, which hovers
at 503 per 100,000.101
In explaining how such civil rights injustices are remedied, Professor
Derrick Bell wrote that “[t]he interest of blacks in achieving racial equality
will be accommodated only when it converges with the interests of
whites.”102 This provocative principle serves as the foundation for his
“interest convergence” theory.103 The Scott Sisters’ story is illustrative of a
brief moment of interest convergence.104 This brief moment, rather than
representing a macro-level interest convergence similar to the Supreme
Court’s decision in Brown v. Board of Education105 cited by Bell, was
instead interest convergence on the micro-level in that it affected the
interests of just a few: Jamie and Gladys Scott and Governor Haley Barbour.
Although merely reflective of “micro-interest convergence,” the timing of
Barbour’s release of Jamie and Gladys Scott gives additional credence to
Bell’s assertion that “[r]acial justice—or its appearance—may, from time to
time, be counted among the interests deemed important by . . . society’s
policymakers.”106 As demonstrated below, Haley Barbour needed to appear
racially tolerant and capable of leading a diverse nation at just the same time
that Jamie Scott needed to be released for a life-saving renal transplant. This

(Marc Mauer ed., 2005), available at http://www.sentencingproject.org/doc/publications/rd_
sentencing_review.pdf .
99.
Map of Correctional Populations by State, SENT’G PROJECT, http://www.sentencing
project.org/map/map.cfm (last visited Nov. 13, 2012).
100.
Federal Correctional Populations, SENT’G PROJECT, http://www.sentencingproject.org
/map/statedata.cfm?abbrev=NA&mapdata=true (last visited Nov. 13, 2012); see also MARC MAUER
& RYAN S. KING, UNEVEN JUSTICE: STATE RATES OF INCARCERATION BY RACE AND ETHNICITY 6
(2007), available at http://www.sentencingproject.org/doc/publications/rd_stateratesofincbyraceand
ethnicity.pdf.
101.

MAUER & KING, supra note 100, at 8–9.

102.
Derrick A. Bell, Jr., Comment, Brown v. Board of Education and the InterestConvergence Dilemma, 93 HARV. L. REV. 518, 523 (1980).
103.

Id.

104.
In explaining Derrick Bell’s stance regarding interest convergence and the Supreme
Court’s decision in Brown v. Board of Education, 347 U.S. 483 (1954), Richard Delgado and Jean
Stefancic described 1954 as follows: “[t]he interests of whites and blacks, for a brief moment,
converged.” RICHARD DELGADO & JEAN STEFANCIC, CRITICAL RACE THEORY: AN INTRODUCTION
23 (2d ed. 2012) (emphasis added).
105.

See generally Brown v. Board of Education, 347 U.S. 483 (1954).

106.

Bell, supra note 102, at 523.

JJJ Contract Proof (DO NOT DELETE)

2/15/2013 5:38 PM

The Exchange of Inmate Organs for Liberty

121

convergence of the particular interests of Haley Barbour and the Scott
Sisters provides a key to answering the question of how Governor Barbour
settled upon the kidney donation clemency condition, and how a condition
that would normally engender a “yuck factor” response came to be
acceptable to the Scott Sisters, their attorneys, and the civil rights
community.
B. Prisons and Mississippi’s Peculiar Institution107
The story of the Scott Sisters cannot be fully understood without
considering Mississippi’s history and the racial background of the
protagonists—the Scott Sisters are Black and Barbour is white. More
particularly, it cannot be wholly appreciated without exploring the
intersection between slavery and the state prison system in Mississippi in the
context of both the historical ownership of, and control over, Black bodies.
Jamie and Gladys Scott were not imprisoned at Mississippi’s notorious
Parchman prison farm, nor were they sentenced to labor in the fields. Their
story, however—particularly that of the disproportionately harsh sentence
meted out to them—is perhaps only comprehensible in light of Mississippi’s
history.
Antebellum Mississippi’s economy was built almost entirely upon the
exploitation of enslaved Africans.108 Mississippi was not just a slave-holding
state, but was the preeminent slave-holding state in the union in terms of
both the numbers of humans held in bondage there and the wealth that they
produced for those who owned their bodies and their labor.109 Shortly before
the beginning of the Civil War, Mississippi was the country’s leading
producer of cotton110—a crop that comprised more than half of United States

107.
The term “peculiar institution” was “a euphemistic term that white southerners used for
slavery . . . [the term’s] implicit message was that slavery in the U.S. South was different from the
very harsh slave systems existing in other countries and that southern slavery had no impact on those
living in northern states.” Fletcher M. Green, Peculiar Institution, ENCYCLOPEDIA.COM,
http://www.encyclopedia.com/doc/1G2-3401803191.html (last visited Dec. 29, 2012). The term is
also the title of historian Kenneth M. Stampp’s seminal work, published in 1956, on slavery in the
American South. See KENNETH M. STAMPP, THE PECULIAR INSTITUTION: SLAVERY IN THE ANTEBELLUM SOUTH (1956).
108.
See Michael P. Mills, Slave Law in Mississippi From 1817-1861: Constitutions, Codes
and Cases, 71 MISS. L.J. 153, 153–54 (2001).
109.
See STAMPP, supra note 107, at 29–33 (noting that in the 1860s, slaves made up fifty-five
percent of the total state population of Mississippi, a statistic that was surpassed only by South
Carolina, in which slaves made up fifty-seven percent of the state’s population).
110.
Mills, supra note 108, at 154 (noting that, in 1859, Mississippi ginned over 1.2 million
400-pound bales of cotton while Alabama, the next highest-producing state, ginned a mere 990,000
bales).

JJJ Contract Proof (D O NOT DELETE)

122

The Journal of Gender, Race & Justice

2/15/2013 5:38 PM

[16:2013]

exports of the day.111 This cash crop was planted, tended, and harvested by
Black slaves.112
Antebellum Mississippi had been a veritable land of opportunity for
young white men looking to make their fortunes.113 Yet, the same
agriculturally-dominated economy, built upon racial subjugation, that made
Mississippi a land of opportunity and prosperity for whites in the early to
mid-nineteenth century, made it no less than backwards in subsequent
years.114 As the United States pressed through the Second Industrial
Revolution, Mississippi, like much of the Deep South, clung to its
antebellum agricultural roots, including its dependence on exploited Black
labor.115 After the Civil War, Mississippi needed a means of asserting
control over its Black population in order to keep it tied to the land and to
assure white social and political dominance in the wake of Emancipation.116
White Mississippians met this need in a two-fold manner, as they effectuated
systematic control of Black bodies through both peonage and through the
use of prison labor to swell agricultural profit.117
The system of sharecropping, as practiced in the South after

111.

Id.

112.

Id. at 155.

113.
See id. (noting that “[e]arly Mississippi literature pictures a society driven by lust for
quick riches based on the production of cotton”).
114.
Id. at 155 (“Hindsight affords us the luxury of condemning a way of life [slavery] which
inarguably created many of the social and economic ills we suffer today in Mississippi.”). In 2008,
Mississippi had a Human Development (HD) Index—according to the American Human
Development Project, “a numerical measure of well-being and opportunity made up of health,
education, and income indicators”—of 3.58 on a scale of 0 to 10. SARAH BURD-SHARPS, KRISTEN
LEWIS & EDUARDO BORGES MARTINS, AM. HUMAN DEV. PROJECT, A PORTRAIT OF MISSISSIPPI:
MISSISSIPPI HUMAN DEVELOPMENT REPORT 4–5 (2009), available at http://measureofamerica.org
/wp-content/uploads/2009/01/a_portrait_of_mississippi.pdf. Mississippi’s HD Index was lower than
that of the entire United States in the late 1980s. Id. By comparison, top-ranking Connecticut had an
HD Index of 6.37, which the American Human Development Project predicts will be the HD Index
of the U.S. as a whole in the year 2020. Id. Thus, Mississippi (the lowest-ranking state) lags three
decades behind Connecticut and fifteen years behind the national average in terms of life
expectancy, educational opportunities and income. Id.
115.
See Ron Soodalter, A Blight on the Nation: Slavery in Today’s America, 25 CONN. J.
INT’L L. 37, 38–39 (2009) (noting that Southern dependence on the antebellum plantation system
caused “peonage slavery” to persist well into the 1960s). But see DAVID J. LIBBY, SLAVERY AND
FRONTIER MISSISSIPPI: 1720–1835, at 45–47 (2004) (“[T]he assumption that [cotton] plantation life
was ‘premodern’ or agrarian overlooks both the unrelenting constancy of labor, in contrast to the
seasonal breaks in most other agrarian regimes, and the relationship between its product, cotton
fiber, and the Industrial Revolution.”).
116.
See Soodalter, supra note 115, at 38–39 (“Crops in the South still needed planting,
cultivating and harvesting, and there was a vast population of unemployed former slaves. Planters
instituted a system that was as close to the old slavery as possible, but with some new wrinkles
[referring to peonage].”).
117.

See id.

JJJ Contract Proof (DO NOT DELETE)

The Exchange of Inmate Organs for Liberty

2/15/2013 5:38 PM

123

Emancipation, was no more than peonage, or debt bondage.118 Former slaves
invariably found themselves in debt year after year to the planter on whose
property they resided.119 After the crops were harvested, the landowner took
his share of the crop’s proceeds and deducted the (often inflated) cost of
seed and other supplies from the sharecropper’s account, usually leaving the
sharecropper with a negative balance.120 As the sharecropper was cash
poor,121 he could only make payment in hope of settling his account, by
agreeing to work for the planter for yet another year.122 Jail was the penalty
for nonpayment and death brought no relief, as this burden of debt bondage
slavery passed from parent to child, thus binding entire families often to the
same plantations on which their ancestors had been slaves.123
After the Civil War, Mississippi’s jails and prisons underwent a sea
change.124 Prior to Emancipation, slave owners punished slaves for their
infractions, with no interference from the State.125 After the war, Mississippi
penal institutions no longer housed primarily white offenders; in short order,
Mississippi’s prison populations became predominantly Black.126 This
explosion in the number of imprisoned Blacks was a direct reflection of
whites’ desire to control former slaves by either compelling them to return to
plantations or by otherwise corralling them.127 By 1865, the Mississippi
legislature had enacted the Mississippi Black Codes—a number of laws
aimed at proscribing the freedom of what white Mississippians saw as a
free-roaming vagrant Black population.128 As such, Blacks who could not
show proof of employment—i.e., that they worked for a white planter—were

118.
See Taylor v. Georgia, 315 U.S. 25, 29 (1942) (“[P]eonage is a form of involuntary
servitude within the meaning of the Thirteenth Amendment. . . .”); Clyatt v. United States, 197 U.S.
207, 215 (1905) (“[Peonage] may be defined as a status or condition of compulsory service, based
upon the indebtedness of the peon to the master.”).
119.

Soodalter, supra note 115, at 39.

120.

Id.

121.
Landowners usually issued sharecroppers tickets rather than cash as payment. Id. These
tickets were often only accepted at the landowner’s store, thus furthering the dependence of Black
farm laborers on their former masters. Id.
122.

Id.

123.

Id.

124.
DAVID M. OSHINSKY, “WORSE THAN SLAVERY”: PARCHMAN FARM AND THE ORDEAL OF
JIM CROW JUSTICE 34 (1996).
125.

Id.

126.

Id.

127.

Id. at 21.

128.

Id. at 20–22.

JJJ Contract Proof (D O NOT DELETE)

124

The Journal of Gender, Race & Justice

2/15/2013 5:38 PM

[16:2013]

fined fifty dollars.129 A freedman’s inability to pay the fifty-dollar fine
would result in his being hired out—in effect sold to—a white man who was
willing to pay the fine in his stead. In these transactions, preference was
given to the former master.130 What began as small-scale hiring out of
convicts had grown tremendously by the late 1860s, when the State awarded
the first large convict leasing contract under which Black prisoners were sent
to work mostly in the cotton fields of the Delta.131 This leasing program
ended in 1904 with the construction of the Mississippi State Penitentiary in
Parchman, Mississippi—a penal farm designed to house Black inmates in
plantation conditions.132
As mentioned earlier, Jamie and Gladys Scott were not housed at
Parchman.133 Rather, they were imprisoned at the Central Mississippi
Correctional Facility (CMCF).134 CMCF is one of three state prisons in
Mississippi and the only one housing female inmates.135 It is important to
note that, in Mississippi, the number of imprisoned women in the state
prison system had, until the mid-twentieth century, always been relatively
small and limited in its racial composition.136 As historian David Oshinsky
wrote, “[a]t no time between 1870 and 1970 did females comprise more than
five percent of the state prison population [in Mississippi]. Their numbers
were low, and their color [Black] never changed.”137
The nation experienced a post-Civil Rights Era explosion of its prison
population.138 Prior to the mid-1970s, national incarceration rates hovered
around 100 per 100,000.139 By the time the Scott Sisters were convicted in
1994, rates had more than tripled to 389 per 100,000.140 When Governor
129.

Id. at 21.

130.

OSHINSKY, supra note 124, at 21.

131.

Id. at 35–36.

132.
Id. at 52–53, 109. The 1890 Mississippi Constitutional Convention abolished convict
leasing effective January 1, 1895, but it took until 1904 for Parchman to be built. Id.
133.

See supra Part II.B.

134.

Gates, supra note 26.

135.
MISS. DEP’T OF CORR., DIV. OF INSTS. STATE PRISONS, There Are Three State Prisons in
Mississippi, (Nov. 13, 2012), http://www.mdoc.state.ms.us/division_of_institutions%20State%20
Prisons.htm.
136.

See OSHINSKY, supra note 124, at 169.

137.

Id.

138.
U.S. Dep’t of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice
Statistics Online, ALBANY.EDU, http:www.albany.edu/sourcebook/pdf/t6282010.pdf (last visited Jan,
2, 2013).
139.

Id.

140.

Id.

JJJ Contract Proof (DO NOT DELETE)

2/15/2013 5:38 PM

The Exchange of Inmate Organs for Liberty

125

Barbour announced the Scott Sisters’ release in 2010, the rate had risen to
497 per 100,000.141 Among women, the increase was even more shocking.
The female prison population per 100,000, which had remained in the single
digits until the mid-1970s, more than quadrupled to 45 per 100,000 by
1994.142 By 2010, it was more than ten times the rate that it had been at the
end of the Civil Rights Era.143 Scholars opine that the exponential growth in
the prison population and the disproportionate representation of Blacks in
that population is a direct reaction to the civil and political gains of the Civil
Rights Movement.144 Not surprisingly then, Blacks have borne the brunt of
this expanded carceral regime. Both the national and Mississippi rates of
Black incarceration far outstrip those of white incarceration.145 The same
racial disparities that characterize the overall national prison population are
also prevalent within the population of imprisoned women, as Black women
are incarcerated at three times the rate of white women.146 Moreover, just as
in the 100 year period prior to the end of the Civil Rights Era, the pace of
Mississippi’s imprisoning of Black women far outstripped that of its
imprisoning of white women. Black women make up forty-three percent of
the State’s female prison population, despite making up roughly only fifteen
percent of the population.147 It is with this historical and statistical backdrop
in mind that one must examine how two more Black women—the Scott
Sisters—found themselves in a Mississippi state prison.
C. The Scott Sisters
Jamie and Gladys Scott, then twenty-one and nineteen, respectively,
were convicted as the masterminds behind a Christmas Eve 1993 armed
robbery.148 No one was hurt during the commission of the robbery, which

141.

Id.

142.

Id.

143.
In 1968, the rate of female incarceration was 6 per 100,000. Id. In 2010, the rate was 67
per 100,000. Id.
144.
See, e.g., Pricilla A. Ocen, Punishing Pregnancy: Race, Incarceration, and the Shackling
of Pregnant Prisoners, 100 CALIF. L. REV. 1239, 1269–70 (2012) (citations omitted).
145.

See supra Part II.A.

146.
E. ANN CARSON & WILLIAM J. SABOL, U.S. DEP’T OF JUSTICE, PRISONERS IN 2011, at 8
(2012), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/p11.pdf.
147.
Fact Sheet as of October 01, 2012, MISS. DEP’T OF CORR., (2012), http://www.
mdoc.state.ms.us/Research%20and%20Statistics/MonthlyFactSheets/Research%20and%20Stat%20
Monthly%20Fact12.htm.
148.
See Bob Herbert, Op-Ed., ‘So Utterly Inhumane,’ N.Y. TIMES, Oct. 12, 2010, http://www.
nytimes.com/2010/10/12/opinion/12herbert.html.

JJJ Contract Proof (D O NOT DELETE)

126

The Journal of Gender, Race & Justice

2/15/2013 5:38 PM

[16:2013]

netted between $11 and $200.149 Prior to that time, neither sister had a
criminal record as well.150
Authorities accused Jamie and Gladys of luring two male acquaintances
to a secluded area where three teenaged boys, allegedly in league with the
Scott sisters, robbed them.151 The teens all claimed that Jamie and Gladys
planned the robbery.152 Jamie and Gladys tell a different story: that they
caught a ride with two men after their own car would not start, but got out of
the car when the men made unwanted sexual advances toward them.153
Jamie and Gladys claimed not to have known that the men with whom they
had been riding had been followed by the teenage boys or that they were
going to be robbed.154
Although the teenage boys did not implicate Jamie and Gladys in their
initial statements to the police, the jury believed the prosecution’s assertion
that Jamie and Gladys had orchestrated the robbery.155 As a result, each
sister was convicted and sentenced to two consecutive terms of life in
prison.156 Their three male accomplices, on the other hand, were spared long
jail sentences.157 Two of the three teens testified against the Scott Sisters at
trial.158 Those two teens served approximately three years in prison.159 The
third boy recanted, testifying that authorities had threatened that, if he did
not testify that Jamie and Gladys were behind the robbery, they would send
him to Parchman prison where they said he would surely be raped.160 He
was released on parole in 2006.161
Officials never explained why Jamie and Gladys received such harsh

149.

Id.; Gladys Scott: ‘I’m not Bitter’, supra note 67; Pitts, supra note 97.

150.

Pitts, supra note 97.

151.
See Gladys Scott:‘I’m Not Bitter,’ supra note 67; Herbert, supra note 148; see also Pitts,
supra note 97.
152.

Gladys Scott: ‘I’m Not Bitter,’ supra note 67; Herbert, supra note 148.

153.
Victim: Sisters in on Holdup, CLARION-LEDGER, Jan. 9, 2011, available at 2011 WLNR
490945.
154.

See id.

155.

Herbert, supra note 148.

156.

Id.

157.
Id. The male accomplices were each sentenced to eight years in prison and were released
after serving just two years. Id.
158.

Id.

159.

Victim: Sisters in on Holdup, supra note 153.

160.

Herbert, supra note 148.

161.

Victim: Sisters in on Holdup, supra note 153.

JJJ Contract Proof (DO NOT DELETE)

2/15/2013 5:38 PM

The Exchange of Inmate Organs for Liberty

127

sentences.162 The only explanation for their sentences was that offered by
their mother, Evelyn Rasco, who surmised that the sentences were
retribution exacted against her family due to earlier testimony by family
members against a corrupt Scott County sheriff.163 There is also speculation
that the sisters’ sentences were graver than the teens who actually robbed the
victims because the judge believed Jamie and Gladys organized the crime.164
However, in Mississippi, only juries can impose a life sentence for a
robbery.165 The sisters’ current attorney of record, Chokwe Lumumba (who
did not represent them at trial), noted that, “[i]n the majority of robbery
cases, even the ones that are somewhat nasty, . . . [state judges] don’t
read . . . [the] instruction [authorizing the jury to impose a life sentence].”166
Indeed, Ken Turner, the district attorney who prosecuted the case, admitted
that, “[n]ormally, life sentences are only returned when it is a grisly case,
and this case wasn’t particularly grisly.”167 Nevertheless, he has offered no
explanation as to why the life sentence option was included in the jury
instructions.168 He does, however, admit that the life sentences meted out to
the Scott Sisters were atypical and agreed that reducing their sentences
would have been “appropriate.”169 Eventually, even Governor Haley
Barbour admitted that the sisters’ life sentences were “unusually long.”170
D. Haley Barbour, “The Boy from Yazoo City”171
Haley Barbour is the most celebrated native son of Yazoo City—the
principal town and seat of government of Yazoo County, Mississippi—on
the southern edge of the state’s Delta region.172 As historically known, the
Mississippi-Yazoo Delta is the land of fertile alluvial plains, generations of
162.

Pitts, supra note 97.

163.

Id.

164.

See Williams, supra note 70.

165.
See MISS. CODE ANN. § 97-3-79 (2006) (“Every person . . . guilty of robbery . . . shall be
imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where
the jury fails to fix the penalty at imprisonment for life . . . the court shall fix the penalty at . . . any
term not less than three (3) years.”) (emphasis added).
166.

Herbert, supra note 148.

167.

Sisters Doing Life for Robbery Get Project’s Attention, supra note 89.

168.

See, e.g., Herbert, supra note 148; Victim: Sisters in on Holdup, supra note 153.

169.

Victim: Sisters in on Holdup, supra note 153.

170.

Scott Sisters to Be Freed, supra note 93.

171.
This is the title of an article published in The Weekly Standard that profiled Haley
Barbour. Ferguson, supra note 91. See discussion infra Part II.D.
172.

Ferguson, supra note 91, at 21.

JJJ Contract Proof (D O NOT DELETE)

128

The Journal of Gender, Race & Justice

2/15/2013 5:38 PM

[16:2013]

rich, white planters and the poor descendants of African slaves.173 More than
any other region of Mississippi, it is steeped in Mississippi’s antebellum past
and more than any other recent Mississippi politician, Haley Barbour is
steeped in the culture and lore of the Delta.174 Barbour is not just a son of the
Delta, but a scion of Mississippi politics.175 His great-great-great-greatgrandfather Walter Leake was the first United States senator from
Mississippi, after it gained statehood in 1817, and served as its third
governor from 1822–1825.176 His paternal grandfather was a judge.177 His
older brother was elected mayor of Yazoo City while Barbour was in
college.178 The Barbour family even claims descent from the Choctaw chief
Greenwood Leflore, who served in the Mississippi State Senate in the mid1800s.179
In the fall of 2010, Barbour was the president of the Republican
Governors’ Association and a successful former Republican National
Committee chairman.180 As such, he was widely regarded as a likely
contender for the GOP presidential nomination.181 However, some National
Republican leaders and political observers were concerned that Barbour, as a
white conservative from Mississippi, might be “too Southern” for the
national stage—implying that either his actual racial politics or others’
perceptions of the historic racial climate in Mississippi might hinder any
national candidacy.182 By the winter of 2010, Barbour had proved the
pundits right. He was quoted in December of that year in the conservative
magazine The Weekly Standard as saying about the Civil Rights Era: “I just

173.

Id. at 21–22.

174.

See generally id.

175.

See id. at 22.

176.
Id.; David G. Sansing, Governors of Mississippi from 1817 to Present, MISSISSIPPI
HISTORY NOW, mshistorynow.mdah.state.ms.us/articles/265/governors-of-mississippi-from-1817-topresent (last visited Dec. 27, 2012); Mississippi’s United States Senators, SENATE.GOV,
http://www.senate.gov/states/MS/senators.shtml (last visited Dec. 22, 2012).
177.

Ferguson, supra note 91, at 22 .

178.

Id. at 24.

179.

Id. at 22.

180.
As head of the Republican Governors’ Association, Barbour orchestrated a near sweep of
gubernatorial races in November 2010. Id. at 20. Prior to that, while serving as the Republican
National Committee chairman from 1993–1997, Barbour spearheaded the 1994 Republican retake of
the majority in the House of Representatives. Id.
181.

What Are Barbour’s Chances?, supra note 91.

182.
Id.; see also Scott Sisters to Be Freed, supra note 93 (“As a white Southern Republican
considering a challenge against the nation’s first black president, Barbour’s race relations are likely
to be under the microscope . . . .”).

JJJ Contract Proof (DO NOT DELETE)

The Exchange of Inmate Organs for Liberty

2/15/2013 5:38 PM

129

don’t remember it as being that bad.”183 In the same interview, he went on to
praise the members of the segregationist White Citizens’ Council as
peacekeepers and credited them with uneventful desegregation of the
schools in his hometown of Yazoo City.184 Barbour later released a
statement calling segregation and the Citizens’ Council “indefensible.”185
His original statement, however, was the beginning of the end of Barbour’s
moment in the spotlight as a potential GOP contender.186 As 2011
approached, he attempted to rehabilitate his reputation regarding civil rights
and racial equality by announcing a celebration of the fiftieth anniversary of
the Freedom Rides,187 calling for a civil rights museum in the state capital of
Jackson,188 and by finally agreeing to free the Scott Sisters.189
Although Jamie and Gladys Scott had originally petitioned for a pardon
from the Governor, what they ultimately received was an indefinite
suspension of their sentences, the functional equivalent of parole.190 They
are, therefore, required to report monthly to a parole officer, secure judicial
permission before traveling, refrain from associating with others who have
criminal records, and pay a monthly fee of fifty-two dollars each for the cost
of their supervision.191 After having been released from prison, the Scott
Sisters again petitioned Governor Barbour for a full pardon.192 In early April
2011, Barbour indicated that he would deny that and any future pardon

183.

Ferguson, supra note 91, at 25 (internal quotation marks omitted).

184.

Id.

185.
Gov. Barbour’s Statement Regarding Weekly Standard Article, GOVERNORBARBOUR
.COM (Dec. 21, 2010), http://www.governorbarbour.com/news/2010/dec/12.21.10govbarbourweekly
standard.html.
186.
One observer, Professor Stephen Rozman, a political science professor at the historically
Black Tougaloo College characterized Barbour as having “foot in mouth disease” and not “play[ing]
well outside of his culture.” What Are Barbour’s Chances?, supra note 91.
187.
This announcement was made on the 2011 Martin Luther King, Jr. holiday. Gov. Barbour
Formally Announces Celebration of Freedom Riders, GOVERNORBARBOUR.COM (Jan. 17, 2011),
http://www.governorbarbour.com/news/2011/jan/1_17freedomridersanniversary.html.
188.
Barbour announced his support for a civil rights museum in Jackson, Mississippi during
his State of the State address on January 11, 2010. Text of Governor Barbour’s State of the State
Address, GOVERNORBARBOUR.COM (Jan. 11, 2011), http://www.governorbarbour.com/news/2011/
jan/1.11.11%20Gov.%20Barbour's%20State%20of%20the%20State%20Address%20TEXT.pdf.
189.
Gov. Barbour’s Statement Regarding Release of Scott Sisters, supra note 1; see also What
Are Barbour’s Chances?, supra note 91 (citing these events as Barbour’s attempts to “reach[] across
the racial divide”).
190.

Shabazz, supra note 4.

191.

Id.

192.
Kidney Transplant Possible, But Don’t Count on Pardons, HOUS. CHRON., Apr. 1, 2011,
available at 2011 WLNR 6363285.

JJJ Contract Proof (D O NOT DELETE)

130

The Journal of Gender, Race & Justice

2/15/2013 5:38 PM

[16:2013]

requests from the Scott Sisters.193 The sisters’ supporters vowed to make
their pardon an issue should Barbour attempt to run for the presidency.194 By
April’s end, however, Barbour had announced that he would not seek his
party’s nomination for the office of president.195 Barbour, who was termlimited as governor,196 no longer needed to improve his local or national
image. Barring political expediency, the Scott Sisters had nothing to offer
Barbour. Their interests were no longer convergent.197
III. LESSENING COERCION, MITIGATION OF THE “YUCK FACTOR”
This Part sketches the framework of a program for inmate organ
donation. This framework is conceived as an adaptation of Professor Bell’s
interest convergence theory that realigns the interests of proposed inmate
donors with those of the patients on the organ transplant waiting list. In
proposing this realignment, this Part examines the historical context of the
exchange of inmate biological material for liberty.
A. Interest Convergence in the Inmate Organ Donation Context
Professor Bell’s model of interest convergence can be applied beyond
the struggle for racial equality to other scenarios where the interests of the
relatively powerless and those of the relatively powerful align to create a
moment of opportunity for the disadvantaged party to advance its cause. The
interest convergence in the Scott/Barbour case—Jamie’s dire medical need

193.
Id. (quoting Barbour as saying in response to media inquiries about his pardoning the
Scott Sisters, “I wouldn’t hold my breath . . . . Tell ‘em don’t save any space in the newspaper for
that [pardon] to be announced.”) (internal quotation marks omitted).
194.
Emily Wagster Pettus, Barbour’s Plan to Deny Pardon Makes Ex-Inmate Cry, SEATTLE
TIMES, Apr. 1, 2011, available at http://seattletimes.com/html/nationworld/2014659032_
apussistersreleasedkidney.html (quoting the sisters’ attorney Chokwe Lumumba: “[e]verywhere that
Haley Barbour looks in this country, if he’s looking for an independent or a moderate or whatever
else they call those people that they’re supposed to be getting the votes for, he’s going to see us there
waving the banner of the Scott sisters”).
195.
Statement of Gov. Barbour, GOVERNORBARBOUR.COM (Apr. 25, 2011), http://www.
governorbarbour.com/news/2011/apr/4.25barbourstatement.html.
196.
See MISS. CONST. art.V, § 116 (“The chief executive power of this state shall be vested in
a Governor, who shall hold his office for four (4) years. Any person elected to the office of Governor
shall be eligible to succeed himself in office. However, no person shall be elected to the office of
Governor more than twice . . . .”). Haley Barbour served as Governor of Mississippi from 2004 –
2012. Sansing, supra note 176.
197. Barbour remained true to his word and did not include the Scott Sisters in his end-of-term
pardons. Rather, he pardoned 200 convicted felons, more than two dozen of whom had been
convicted of homicide. Holbrook Mohr & Emily Wagster Pettus, Outgoing Governor Pardons
Nearly 200, Including Killers, SEATTLE TIMES, Jan. 11, 2012, http://seattletimes.com/html/
nationworld/2017206018_barbour11.html.

JJJ Contract Proof (DO NOT DELETE)

The Exchange of Inmate Organs for Liberty

2/15/2013 5:38 PM

131

with Barbour’s political aspirations—serves to heighten the “yuck factor”
experienced by individuals outside of the Scott/Barbour story (bioethicists
and the national media), while engendering no such response from the
narrative’s actors (Barbour, Jamie and Gladys Scott, and the NAACP).
Variation in the level—or existence—of repugnance notwithstanding, it is
possible to conceive of interests wholly lacking in a “yuck factor” response
that converge with inmates’ interests in securing freedom, namely those of
the patients waiting for organ transplants. As such, by adapting Bell’s
interest convergence model to the interests of inmates as they converge with
those of the individuals awaiting transplants,198 one can argue that such
convergence lends support to the creation of an inmate organ donation
program.
Those in favor of keeping NOTA intact argue that preventing the
trading of organs for valuable consideration protects the most vulnerable
members of society—among them the poor and minorities—from becoming
mere organ farms for the ailing wealthy.199 Other proponents claim that
NOTA’s prohibition is in keeping with our country’s longstanding tradition
of altruistic organ donations.200 NOTA, however, was not initially conceived
as anti-incentive.201 In fact, NOTA’s main proponent, Representative Al
Gore, Jr. of Tennessee, initially considered the use of incentives and only
backed away from their use after Congressional hearings exposed fears of
exploitation fostered by private organ markets.202 However, in the context of
the overwhelming numbers of patients lingering and dying on the transplant
waiting list, a policy of strict altruistic organ donations is outmoded. Instead,
a narrow and tightly-regulated market, as an exception to NOTA, may prove
extremely beneficial to both prisoners and patients. We have considered
shortages and the needs of patients in inmate donation programs before in

198.
One may question whether those suffering on the organ transplant waiting list represent
the powerful. However, when compared to the incarcerated, those awaiting transplants are more able
to garner public sympathy and support and have a positive impact on political will. See ROBERT M.
PAGE, STIGMA, CONCEPTS IN SOCIAL POLICY TWO 2–7 (Vic George & Paul Wilding eds., 1984)
(noting that “conduct” or “moral” stigma—such as that associated with incarceration—accords
blameworthiness and diminished social acceptance to the carrier of that species of stigma as
compared to those who carry the “physical” category of stigma, which is associated with illness and
disability). Thus, from a relative standpoint, they can be said to be the more powerful actors in this
particular scenario.
199.

Delmonico et al., supra note 17, at 2004.

200.
See Gabriel M. Danovitch & Alan B. Leichtman, Kidney Vending: The “Trojan Horse” of
Organ Transplantation, 1 CLINICAL J. AM. SOC’Y NEPHROLOGY 1133–35 (2006). “[K]idney selling
would distort and undermine the altruism . . . on which our whole organ donation systerm currently
relies.” Id. at 1134.
201.
CHAD THOMPSON, supra note 47, at 134 (“[E]arly [Congressional] hearings [on NOTA]
held little opposition to incentives for organ donation.”).
202.

Id. at 134–35.

JJJ Contract Proof (D O NOT DELETE)

132

The Journal of Gender, Race & Justice

2/15/2013 5:38 PM

[16:2013]

this country. The surprising level of acceptance of kidney clemency for
Gladys Scott may indicate that this is the time to reinstitute and expand such
programs.
B. Blood-Time and the Case Against Coercion
Exchanges involving inmates’ biological materials for liberty are not
novel. Beginning in the 1950s, in response to blood plasma shortages, a
number of states enacted statutes that created what came to be known as
“blood-time” programs under which inmates who donated blood were
awarded good-time credit, thereby reducing their sentences.203 While some
states have maintained their blood-time programs,204 many of these
programs were discontinued in the 1980s as blood supplies became tainted
by HIV-infected plasma.205 Despite advances in blood screening technology,
the discontinued state prison blood-time programs have not been
reinstituted. However, it must be noted that while such programs were in
place, there was no criticism lodged against them that in any way mirrored
the arguments against organ donation-based sentence reduction programs.
Rather, they were discontinued for purely medical reasons and in some
cases, reinstated as donation programs without the time credit component
and with limitations designed to ensure that only the healthiest inmates were
eligible to donate.206

203.
See, e.g., ALA. CODE § 14-9-3 (2011) (providing that every prisoner who donates at least
one unit of blood to the American Red Cross shall be entitled to a thirty-day reduction of his
sentence, such deduction to be applied one time per twelve-month period); CAL. PENAL CODE §
4352 (repealed 1968) (giving a five-day sentence reduction per pint of blood donated by a prisoner,
up to four times per year); MASS GEN. LAWS ch. 127, § 129A (repealed 1989) (providing for
sentence reductions for blood donations), MICH. COMP. LAWS ANN. § 791.233a (repealed 1982)
(allowing that in determining a prisoner’s fitness for release on parole, the parole board may
consider the prisoner’s blood donations); OKLA. STAT. tit. 57, § 65 (2004) (providing that an inmate
serving in any county jail shall be entitled to receive three days’ credit for each pint of blood that he
donates during his first thirty days in jail and five days’ credit for every pint donated in any sixty-day
period thereafter); R.I. GEN. LAWS § 42-56-25 (repealed 1988) (giving sentence reductions for blood
donations in certain situations), VA. CODE ANN. § 53.1-191 (2002) (allowing the parole board of the
State of Virginia, with the consent of the Governor, to give good-time credit to a person who donates
blood to a fellow inmate and “[i]n unusual circumstances” providing that “a prisoner may receive
credit for donating blood . . . to blood banks . . . .”).
204.
Alabama, Oklahoma, and Virginia are among those states that still have blood-time
statutes in force. See ALA. CODE § 14-9-3 (2011); OKLA. STAT. tit. 57, § 65 (2012); VA. CODE ANN.
§ 53.1-191 (2002).
205.
Massachusetts, Michigan, and Rhode Island, for example, all repealed their blood-time
statutes in the 1980s. See CAL. PENAL CODE § 4352 (repealed 1968); MASS GEN. LAWS ANN. ch.
127, § 129A (repealed West 1989); MICH. COMP. LAWS ANN. § 791.233a (repealed West 1982); R.I.
GEN. LAWS § 42-56-25 (repealed 1988).
206.

Some states that have discontinued blood-time still allow prisoners to donate blood. For

JJJ Contract Proof (DO NOT DELETE)

The Exchange of Inmate Organs for Liberty

2/15/2013 5:38 PM

133

Blood is not a prohibited “human organ” under NOTA.207 Despite
blood’s not being classified as a “human organ,” analogizing blood-time
programs with a proposed “organ-time” program is not unhelpful. Rather,
one can use the former blood-time programs to illustrate the historical
willingness of the criminal justice system to bargain with prisoners on terms
that include bodily products in exchange for liberty. The argument can be
made that blood, unlike the organs enumerated in NOTA, is regenerative
(bone marrow excepted).208 This Article proposes, however, that the
standard should not be regeneration, but the criminal justice system’s ability
to orchestrate a scheme under which an incentivized organ exchange will not
be deemed coercive.
Traditionally, coercion involves the threat that an unfavorable change in
circumstances will occur if the coercee does not take the action desired by
the coercer.209 Thus, without a conditional threat, coercion cannot be said to
exist. In the case of a proposed inmate donation program, the State would
not be threatening to punish an inmate by unfavorably changing his
circumstances if he chooses not to donate. Rather, it would only be offering
to favorably change the circumstances of those who did choose to
participate. Thus, rather than a conditional threat, the program would consist
of a conditional offer and would, therefore not meet the definition of
coercion.210 A prisoner who did not participate would be no worse off with
regard to the length of her sentence or the circumstances of her confinement
than before the offer to participate was made. In mitigating coercion, it is
therefore, important to refrain from framing the inmate’s donation as the
State’s exacting retribution for the inmate’s crimes.211 Donation, in lieu of
confinement, should not be offered as part of a plea arrangement or as part

example, California continues to allow its prisoners to donate provided that they submit to an
examination by a physician and limit their donations to once per seventy-two days. CAL. PENAL
CODE § 4351 (2011). One scholar reasoned that prisoners may continue to volunteer to donate blood
without the promise of blood-time in the hope of favorably impressing the parole board. See Marc A.
Franklin, Tort Liability for Hepatitis: An Analysis and a Proposal, 24 STAN. L. REV. 439, 441 n.13
(1972).
207.
See 42 U.S.C. § 274e(c)(1) (2006) (defining “human organ”). In a recent case, the Ninth
Circuit held that NOTA did not prohibit compensation for blood containing peripheral blood stem
cells, even though such cells had recently been a “subpart” of the bone marrow and were only
present in the blood as a result of the administering of a certain drug. Flynn v. Holder, 684 F.3d 852,
863 (9th Cir. 2011).
209.
Coercion, STANFORD ENCYCLOPEDIA PHILOSOPHY (revised Oct. 27, 2011), http://plato.
stanford.edu/entries/coercion/.
210.

Id.

211.
But see Mark F. Anderson, The Prisoner as Organ Donor, 50 SYRACUSE L. REV. 951,
964 (2000) (envisioning that the emphasis of any inmate organ donation program will “be on the fact
that the prisoners are paying society and not that society is paying the prisoners”).

JJJ Contract Proof (D O NOT DELETE)

134

The Journal of Gender, Race & Justice

2/15/2013 5:38 PM

[16:2013]

of the sentence,212 or as the condition of release as in the Gladys Scott case.
Rather, the inmate must be free to choose or reject donation, such a choice
being made after careful, studied consideration. The program outlined in
Part III.C. below seeks to instill such autonomous decision-making.
There still remains the question of whether, if not coercive, the offer of
liberty in exchange for an organ represents an “undue inducement”—one in
which the thing offered, liberty, is so attractive that a prisoner’s ability to
make an autonomous decision would be overridden such that she would
disregard her better judgment and donate an organ to obtain that liberty.213
The danger of undue inducement, like that of coercion, can be overcome by
creating an environment in which the proposed inmate donor can gather
facts sufficient to develop informed consent to donate.
C. A Proposal for an Exchange of Inmate Organs for Liberty
This Article proposes that an inmate organ donation program should
consist of five components: (1) screening; (2) donor education; (3) donation
and release; (4) post-operative care and follow up; and (5) continued
outreach and education. In addition, such a program should include
protective measures, such as provisions for judicial oversight. Finally, the
program should be structured so as to avoid placing inmates in a position
where eschewing the donation program can worsen their circumstances.
Recent scholarship has documented the historical mistreatment of
vulnerable populations, particularly Blacks, by the healthcare system.214 This
mistreatment has taken various forms, including the lack of access to
healthcare, substandard care, and nonconsensual experimentation. Critics
may argue that any proposals to elicit informed consent from inmates for
organ/time exchange programs could eventually be utilized to abuse another
vulnerable population, prison inmates, much as Blacks were abused by the
healthcare system. Once established in the area of organ donation, informed
consent could be applied to situations involving medical experimentation,
including drug trials and experimental procedures. However, the proposal
contained herein solely advocates creating a narrow exception to the
212.
But see id. (describing a retributivist scheme under which inmate organ donation “would
be an integral part of the criminal sentencing process”).
213.
The Sale of Human Organs, STANFORD ENCYCLOPEDIA PHILOSOPHY (Oct. 17, 2011),
http://plato.stanford.edu/entries/organs-sale/.
214.
See generally HARRIET WASHINGTON, MEDICAL APARTHEID: THE DARK HISTORY OF
MEDICAL EXPERIMENTATION ON BLACK AMERICANS FROM COLONIAL TIMES TO THE PRESENT 5
(2006) (documenting “a peculiar type of injustice in health: the troubled history of medical
experimentation with African Americans . . .”); Vernellia R. Randal, Slavery, Segregation and
Racism: Trusting the Health Care System Ain’t Always Easy! An African American Perspective on
Bioethics, 15 ST. LOUIS U. PUB. L. REV. 191 (1996); Michele Goodwin & L. Song Richardson,
Patient Negligence, 72 LAW & CONTEMP. PROBS. 223, 230–31 (2009).

JJJ Contract Proof (DO NOT DELETE)

2/15/2013 5:38 PM

The Exchange of Inmate Organs for Liberty

135

established organ donation regime as codified in NOTA, not authorizing the
targeting of prison populations for medical experimentation. As such, this
proposal, with the following steps, advocates the usage of conventional
medical techniques in organ procurement and transplantation and merely
seeks a novel solution to the current legal obstacle imposed by NOTA.
1. Screening
Inmates who express an interest in donating an organ would undergo
screening to determine their eligibility for the program. Screening would
assess the candidate’s suitability for the program from both a penological
and medical standpoint. Jurisdictions adopting an inmate donation program
may want to limit the program by type of conviction, length of sentence (or
remaining length), or other factors. Medical screening would aim to discover
those with communicable diseases, medical conditions contraindicating
donation, or those whose organs are otherwise unsuitable for transplant.
Such inmates would be rejected as program candidates. An inmate being
rejected from the program for reasons of poor health and, therefore, being
unable to avail herself of the benefit being offered to healthy inmates may,
admittedly, seem unfair. As a means of mitigating the result of rejection, any
inmate who agrees to undergo screening and participate in the educational
process (as described below) would receive modest credit toward release.
A screening regimen would make it impossible for an inmate to
misrepresent her eligibility to donate. Such a regimen would also serve to
expand donor registries, such as the bone marrow registry. It is anticipated
that some inmates who are not rejected for medical reasons may still selfselect out of the program at a later point. However, there remains the
possibility that even post-release, they may be identified as a match for a
particular candidate and may choose to make a donation at that time. In the
case of bone marrow, it is likely that an inmate who registers now may not
be called upon to donate until some point in the future.
2. Donor Education
While medical screening is ongoing, potential inmate donors will
undergo some months of patient education in order to advise them of the
need for donation, the process of donating, and the potential risks involved.
The aims of such education would be twofold: (1) to obtain informed
consent from the potential donor and (2) to extend the timeline between
acceptance into the program and actual donation. The purpose of
lengthening the time between acceptance and donation is to lessen any
pressure that an inmate may feel to donate immediately by actually

JJJ Contract Proof (D O NOT DELETE)

136

2/15/2013 5:38 PM

The Journal of Gender, Race & Justice

[16:2013]

removing the option of immediate donation.215 The attenuated timeline
reduces desperation and, thus, the appearance of undue inducement.216 A
longer education timeline will also give ample opportunity for potential
donors to opt out of the program as they gain knowledge regarding the
donation process and risks. Again, an inmate would receive credit toward
release for time spent in the education phase of the program.217
3. Donation and Release
After completing the months-long screening and donor education
process, a candidate would appear before a judge in order to be cleared to
donate and to be released from prison. Such a hearing would be designed to
confirm informed consent and the absence of coercion. Donation would take
place in a public or private hospital under the care of the same transplant
surgeons that care for non-inmate donors. The State and the recipients’
insurer would be responsible for medical costs. Upon completion of the
surgery, the donor would no longer be deemed to be in state custody.
4. Post-Operative Care and Follow Up
As part of the program, a donating former inmate would be entitled to
post-operative care in the hospital and to follow up care after discharge.
Such follow up care would take the place of normal parole or probation
obligations. It would last as long as necessary for full recuperation, as
determined by the former inmate’s doctors.
5. Continued Outreach and Education
The final phase of the program would be optional for the former inmate.
In this phase, she would be provided with additional education and would
have the opportunity to participate in community outreach programs aimed
at increasing organ donors. It is anticipated that participating states would
devise measures to provide training and possibly employment to inmates
choosing continued participation.

215.
See Taylor & Simmerling, supra note 19, at 57 (discussing the benefits of timeline
attenuation in reducing coercion in the context of providing cash payments to donors).
216.

Id.

217.
Some interested candidates may be rejected for medical reasons before completing the
education phase. As discussed above, they would be entitled to credit toward release for the part of
the education phase that they had completed.

JJJ Contract Proof (DO NOT DELETE)

2/15/2013 5:38 PM

The Exchange of Inmate Organs for Liberty

137

IV. CONCLUSION
The Scott Sisters’ case is illustrative of a classically repugnant
exchange in which coercion, coupled with political expediency, played a
major role. This example, however, does not have to be the model for an
inmate organ-liberty exchange. Instead, we can adapt Professor Derrick
Bell’s interest convergence model to apply to the alignment of the interests
of inmates with those of transplant hopefuls.218 Further, by providing
inmates with patient education and opportunities to opt out without adverse
consequences, it may be possible to create a program under which such
exchanges would not trigger a “yuck factor” response.

218.

See discussion of Professor Bell’s theory of interest convergence, supra Parts II.A., III.A.