Image: Gladys and Jamie Scott
AP
Gladys Scott and Jamie Scott have had their life sentences for a 1994 robbery suspended by Mississippi Gov. Haley Barbour.
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updated 12/30/2010 8:35:21 PM ET 2010-12-31T01:35:21

A debate is unfolding over an unusual offer from Mississippi's governor: He will free two sisters imprisoned for an $11 armed robbery, but one woman's release requires her to donate her kidney to the other.

The condition is alarming some experts, who have raised legal and ethical questions. Among them: If it turns out the sisters aren't a good tissue match, does that mean the healthy one goes back to jail?

Gov. Haley Barbour's decision to suspend the life sentences of Jamie and Gladys Scott was applauded by civil rights organizations and the women's attorney, who have long said the sentences were too harsh for the crime.

The sisters are black, and their case has been a cause celebre in the state's African-American community.

The Scotts were convicted in 1994 of leading two men into an ambush in central Mississippi the year before. Three teenagers hit each man in the head with a shotgun and took their wallets — making off with only $11, the sisters' attorney said.

After 16 years in prison, Jamie Scott, 36, is on daily dialysis, which officials say costs the state about $200,000 a year.

Barbour's freeing of Miss. women — political move?

Barbour agreed to release her because of her medical condition, but 38-year-old Gladys Scott's release order says one of the conditions she must meet is to donate the kidney within one year.

The idea to donate the kidney was Gladys Scott's and she volunteered to do it in her petition for early release.

National NAACP President and CEO Benjamin Todd Jealous thanked Barbour on Thursday after meeting him at the state capital in Jackson, calling his decision "a shining example" of the way a governor should use the power of clemency.

Others aren't so sure.

'Pretty powerful incentive'
Arthur Caplan, the director of the Center for Bioethics at the University of Pennsylvania, has studied transplants and their legal and ethical ramifications for about 25 years. He said he's never heard of anything like this.

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Even though Gladys Scott proposed the idea in her petition for an early release and volunteered to donate the organ, Caplan said, it is against the law to buy and sell organs or to force people to give one up.

"When you volunteer to give a kidney, you're usually free and clear to change your mind right up to the last minute," he said. "When you put a condition on it that you could go back to prison, that's a pretty powerful incentive."

So what happens if she decides, minutes from surgery, to back off the donation?

"My understanding is that she's committed to doing this. This is something that she came up with," said Barbour's spokesman, Dan Turner. "This is not an idea the governor's office brokered. It's not a quid pro quo."

Video: In Miss., an unusual case of executive clemency

What happens if medical testing determines that the two are not compatible for a transplant? Turner said the sisters are a blood-type match, but that tests to determine tissue compatibility still need to be done.

If they don't match, or if she backs out, will she be heading back to prison?

"All of the 'What if' questions are, at this point, purely hypothetical," Barbour said in a statement from his office late Thursday. "We'll deal with those situations if they actually happen."

Legally, there should be no problems since Gladys Scott volunteered to donate the kidney, said George Cochran, a professor at the University of Mississippi School of Law who specializes in constitutional matters.

"You have a constitutional right to body integrity, but when you consent (to donate an organ) you waive that" right, he said.

Other experts said the sisters' incarceration and their desire for a transplant operation are two separate matters and should not be tied together.

Dr. Michael Shapiro, chief of organ transplants at Hackensack University Medical Center in New Jersey and the chair of the ethics committee at the United Network for Organ Sharing, said the organ transplant should not be a condition of release.

"The simple answer to that is you can't pay someone for a kidney," Shapiro said. "If the governor is trading someone 20 years for a kidney, that might potentially violate the valuable consideration clause" in federal regulations.

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That clause is meant to prohibit the buying or selling of organs, and Shapiro said the Scott sisters' situation could violate that rule because it could be construed as trading a thing of value — freedom from prison — for an organ.

Putting conditions on parole, however, is a long-standing practice. And governors granting clemency have sometimes imposed unusual ones, such as requiring people whose sentences are reduced to move elsewhere.

In 1986, South Dakota Gov. Bill Janklow commuted the sentences of 36 criminals, but only on the condition that they leave his state and never come back. In Florida, the governor and members of his cabinet voted in 1994 to reduce a convicted killer's sentence as long as he agreed to live in Maryland.

Whatever the legal or ethical implications of Barbour's decision, it thrust him back into the spotlight, after his recent comments in a magazine article about growing up in the segregated South struck some as racially insensitive.

In the article, Barbour explained that the public schools in his hometown of Yazoo City didn't see the violence that other towns did, and attributed that to the all-white Citizens Council in Mississippi.

Some critics said he glossed over the group's role in segregation. He later said he wasn't defending the group.

The Scott sisters' attorney, Chokwe Lumumba, said people have asked if Barbour, who is mentioned as a potential presidential contender in 2012, suspended their sentences for political reasons.

"My guess is he did," Lumumba said, but he still said the governor did the right thing.

Mississippi Rep. George Flaggs, an outspoken Democrat in the state legislature and an African-American, scoffed at suggestions that Barbour's motive was political and said the decision wasn't an attempt to gloss over the magazine comments.

Flaggs said Barbour suspended the sentences "not only to let this woman out of prison, but to save her life.

"If she doesn't get a kidney, she's going to die," he said.

Copyright 2010 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Video: Jailed sisters to be released for kidney transplant

  1. Transcript of: Jailed sisters to be released for kidney transplant

    AMY ROBACH, co-host: And now to Mississippi , where the governor has made a very high-profile decision to let two sisters serving life sentences out of prison. There's only one condition, and it's a life and death one. We'll talk exclusively to their mother in just a moment. But first, here's NBC 's justice correspondent Pete Williams .

    PETE WILLIAMS reporting: They've been locked up in a Mississippi prison for 16 years; Jamie and Gladys Scott serving life sentences for an armed robbery , a punishment civil rights groups consider extreme. Now the NAACP is praising Governor Haley Barbour 's decision to let the women out on humanitarian grounds.

    Mr. BENJAMIN JEALOUS (NAACP): Thank you, Governor Barbour . When you're right, you're right. This is a shining example of the way clemency powers should be used.

    WILLIAMS: Governor Barbour did not say that he was acting to correct an injustice, or called the sentences too harsh. Instead, he said the older sister, Jamie Scott , who's 38, needs a kidney transplant to survive. "The sisters no longer pose a threat to society," Governor Barbour said, and Jamie Scott 's " medical condition creates a substantial cost" to the state, $200,000 a year. But the release of Gladys Scott will be allowed only if she donates one of her kidneys to her sister. The state says it was her idea in the first place . The decision follows a steady campaign of protests over the life sentences . Neither woman had a criminal record, the victims were not seriously hurt, only a small amount of money was taken, and others more directly involved in the robbery have long since been released . Some advocates for the sisters fault the state for not acting sooner.

    Ms. JARIBU HILL (Mississippi Workers' Center for Human Rights): Governor Haley Barbour calls the impending release of the Scott sisters an early release . A release from 16 years of wrongful incarceration is most certainly not an early release .

    WILLIAMS: Governor Barbour 's office says he took the case to the state parole board last August. But some in the state say his decision this week to release them was partly motivated by politics after he was accused of making racially insensitive remarks in a magazine interview published last week. And he's made no secret of his interest in possibly running for president.

    Mr. JONATHAN MARTIN (Politico): It's very difficult to separate politics from any governor's decision on such a very important and controversial matter when that governor is thinking openly about a run for the White House .

    WILLIAMS: But a spokesman for the governor calls it, quote, "highly cynical" to assume that he acted for anything other than humanitarian reasons. A defense lawyer says the sisters hope to be released in a matter of days, free to move to Florida where their mother lives. For TODAY, Pete Williams , NBC News, Washington.

    ROBACH: Evelyn Rasco is Jamie and Gladys Scott 's mother. She's with us exclusively. And, Evelyn , good morning. Ms. EVELYN RASCO ( Mother of Sisters to be Freed from Prison for Kidney Donation ): Good morning.

    ROBACH: As we just heard in the piece, your daughters have been incarcerated for 16 years. I have to ask you how you first found out the news that they were being released .

    Ms. RASCO: Well, I received a phone call yesterday from a Ward Schaefer at the Jackson Press newspaper in Jackson , Mississippi . Mr. Ward instructed me and told me the decision of the -- that the governor had made. And I just got very hysterical. I had to stop driving, I had to pull on the side of the street because I was so excited and I was so happy that my daughters are being released .

    ROBACH: You've been fighting ever since they've been behind bars to see that day when they'll come home to you . Have you had a chance to talk to your daughters ? What was their reaction to the news?

    Ms. RASCO: They were very happy about the news because they really want to come home. Because they have been locked up for 16 years and they've been away from their children, and it's just been a nightmare for all of us.

    ROBACH: I know that you've had a lot of support in trying to get your daughters released . They were each given a life sentence for that robbery that only resulted in $11. Did you ever give up hope? Did you ever think you'd see the day where they would be coming home to you ?

    Ms. RASCO: Yes, I didn't give up hope because my faith in God helped me to carry on. And I knew one day that my daughters will receive justice. No, I never gave up. I got real tired, but I never gave up.

    ROBACH: The governor said he believes neither of your daughters remains a threat to society as part of the reason why he was OK with this release . But what do you make of the reasoning behind the release , that one of your daughters has to give her sister a kidney? Do you think that's a reasonable reason for their release ?

    Ms. RASCO: No, I don't, because my daughter Gladys stated in January when my daughter Jamie kidneys first shut down that she would be willing to give her sister a kidney. So this has been all over the Internet ever since January, that my daughter Gladys was willing to give her a kidney from the beginning.

    ROBACH: And this has been a huge expense for the state of Mississippi . Governor Barbour mentioned that as well, the cost of Jamie 's medical care . But are you prepared to be able to then take on that cost yourself when they're released ?

    Ms. RASCO: Well, I'm going to -- me and my supporters are going to try to find all the help we can for Jamie . So all I know, I could pray about it and hope my supporters could come up with some solutions to help us.

    ROBACH: There is...

    Ms. RASCO: Because I cannot afford medical care .

    ROBACH: Evelyn , there is some concern that the conditions -- the condition of the release of your daughters could set a precedent, that there are other people who might also have grave medical conditions and if, you know, someone was willing to donate a kidney, they too would then be released or be pardoned for their crimes. Do your daughters have any concerns about this? Do you have any concerns about this?

    Ms. RASCO: No. But I know there's a lot of innocent people in the state of Mississippi in prison, and I know it's a lot of them that's not receiving the proper medical care , like my Jamie daughter -- like my -- like my daughter Jamie . She never received the proper medical care from January, when her kidneys first shut down.

    ROBACH: Well, we understand it could be a matter of days before your daughters head home. Do you have any plans for their arrival? What are -- what are you getting ready for at this point?

    Ms. RASCO: Well, really, I'll just be happy for them to come home, and their children'll be happy for them to come home. But as far as I've heard, it's going to be 45 days, what I've been told, in order for them to be able to come home. So I don't know how, you know, how soon they going to come home because, like I said, been -- I heard it's going to be 45 days. So I don't really know when they coming home .

    ROBACH: Well, Evelyn , we wish you the best. I know your daughters have a tough road ahead of them medically speaking, but we certainly appreciate you joining us this morning and wish you and your daughters the best.

    Ms. RASCO: Thank you so much .

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