As we commemorate Martin Luther King, Jr. Day, I can’t stop thinking about Jamie and Gladys Scott, the sisters released from prison in Mississippi on January 7 on the condition that one give a kidney to the other.

What should have been an occasion for pure celebration – that after an unusually harsh sentence, these women were finally free – was instead tainted by a stunning abuse of government power.

Jamie and Gladys Scott are African American women, ages 38 and 36. They each served 16 years of a life sentence after being convicted of a robbery in which two men were surely frightened and wronged, but not injured. The other people convicted – three 14-18 year-old males – who allegedly threatened the men with a gun and took their money after the sisters allegedly lured them into a trap – were given much shorter sentences and left prison long ago after serving a fraction of their time. Even the government attorney who prosecuted the two sisters agrees that relief is appropriate. The sisters maintain their innocence.

Jamie’s failing health and the severity of the sisters’ sentence – so disproportionate to the crime and to the other punishments imposed – turned the Scotts’ case into a cause for the NAACP and a broad array of grassroots activists, who organized virtually and on the ground.

The result of this concerted campaigning was Governor Haley Barbour’s decision to suspend the sisters’ sentences – so long as Gladys “donates” one of her kidneys to Jamie.

Bodies and Boundaries

One reason I can’t stop thinking about the Scott sisters is that their case has not gotten the attention or sustained analysis it deserves. True, hundreds of papers around the country ran the Associated Press coverage of the story. New York Times columnist Bob Herbert devoted two recent essays to the case – before and after the governor’s action. People have questioned the motives for Governor Barbour’s decision (it followed widely publicized remarks downplaying racial subordination in the 1960s) and have criticized it as unethical.

But isn’t it also against the law?

In an essay at Huffington Post, Frances Kissling explains that the Governor’s order violates U.S. law regulating organ donation.

At a more basic level, the Governor’s order to part with a major organ violates Gladys Scott’s rights to bodily integrity and informed consent to medical treatment. If such a condition were proposed as part of an ordinary parole proceeding, no court would let it stand.

A Pennsylvania lawsuit illustrates the problems with demanding bodily sacrifices from individuals. In McFall v. Shimp, a judge declined to put the coercive weight of the state behind a dying man’s plea for his cousin’s bone marrow. The judge explained, “For a society which respects the rights of one individual, to sink its teeth into the jugular vein or neck of one of its members and suck from it sustenance for another member, is revolting to our hard-wrought concepts of jurisprudence. Forcible extraction of living body tissues causes revulsion to the judicial mind.”

The judge made clear his view that the reluctant cousin should give his bone marrow – as a matter of morality and humanity, not as a matter of law. Bone marrow extraction is invasive and painful. Surgical removal of a kidney is even more so. As the judge’s graphic language makes clear, such risk-laden, personal decisions properly rest with individuals, not with the state.

The Shadow of Injustice

The Rev. Dr. Martin Luther King, Jr. devoted his life to the struggle for equality and justice. The Scott sisters’ ordeal stands in stark contrast to these ideals, recalling instead the long, sordid history of racial politics in the south, including the exploitation of African Americans’ labor, medical experimentation on African Americans, bias in the criminal justice system against African Americans, and violations of African American women’s bodies and rights.

Jamie and Gladys Scott have been each other’s closest companions for their entire adult lives. Their mother and their children live in Florida. At only 38 years old, Jamie’s kidneys are failing, requiring dialysis and ultimately a transplant in order to live. As everyone involved with the case attests, it was Gladys’s idea to include in the petition for early release her desire to help her sister. She told a news conference the day they were released that she didn’t want Jamie to have anyone else’s kidney, and that she would have given it to her in prison if she had been allowed to.

While the Mississippi Department of Correction (DOC) has made it clear that it no longer wants to pay for Jamie’s medical care, estimated at $200,000 per year, and is not likely to take her back into custody, under the terms of the release the DOC could take Gladys back if she does not fulfill her obligations. What if the sisters are not a good match? What if they don’t qualify for Medicaid and can never afford the operation (certainly the DOC is not planning to pay for it)? What if Gladys changes her mind?

The threat of re-incarceration surely amounts to coercion of a sort that should not be tolerated in decisions about organ donation. It also raises the question of why the sisters were released on parole when the DOC has concluded that they “no longer pose a threat to society” and “their incarceration is no longer necessary for public safety.”

If neither sister poses a threat to society, then why must they live with the fear of going back to prison for the rest of their lives? If they have paid their debt to society, why keep them forever under the supervision of the criminal justice system?

In the spirit of fairness, Governor Barbour should rescind the order that Gladys Scott give her sister one of her kidneys and pardon both of them.

Then, the Scott sisters can make their decisions without undue interference or scrutiny – fully informed decisions that will profoundly shape their new lives.