Friday, December 31, 2010

Freedom For A Pound Of Flesh

Express'd in the condition, let the forfeit
Be nominated for an equal pound
Of your fair flesh, to be cut off and taken
In what part of your body pleaseth me.
-The Merchant of Venice (Act I, Scene III)

As one of his final acts in office, Mississippi Governor Haley Barbour has suspended the sentences of two sisters, Gladys and Jamie Scott, convicted of assisting in an armed robbery.  As he stated on his website,
At my request, the Parole Board...reviewed whether the sisters should be granted an indefinite suspension of sentence, which is tantamount to parole, and have concurred with my decision to suspend their sentences indefinitely.

Section 124 of the Mississippi Constitution grants the state's governor the right to grant "reprieves and pardons."  Although more a reprieve than a pardon, the grant of an indefinite suspension of sentence itself would seem well within the constitution's grant of powers.  Specifically,
In all criminal and penal cases, excepting those of treason and impeachment, the governor shall have power to grant reprieves and pardons, to remit fines, and in cases of forfeiture, to stay the collection until the end of the next session of the legislature, and by and with the consent of the senate to remit forfeitures. In cases of treason he shall have power to grant reprieves, and by and with consent of the senate, but may respite the sentence until the end of the next session of the legislature; but no pardon shall be granted before conviction; and in cases of felony, after conviction no pardon shall be granted until the applicant therefor shall have published for thirty days, in some newspaper in the county where the crime was committed, and in case there be no newspaper published in said county, then in an adjoining county, his petition for pardon, setting forth therein the  reasons why such pardon should be granted.

Barbour justified his decision by noting that "the sisters have already served 16 years of their sentences," and "the Mississippi Department of Corrections believes the sisters no longer pose a threat to society."  However, Governor Barbour's statement also dropped a stunning bioethical bombshell by demanding a pound of flesh.  Jamie Scott suffers from impairment of kidney function so severe she requires regular dialysis.  Consequently, Barbour specifically conditioned Gladys Scott's release "on her donating one of her kidneys to her sister, a procedure which should be scheduled with urgency."

One might argue that, logically, if Barbour has the right to grant a full pardon without conditions, then he also has the lesser-included right to grant an indefinite suspension of sentence with conditions.  However, the law tends to be especially protective of human bodies and parts thereof.  In many jurisdictions, it is illegal to sell bodies parts, whether from the living or the dead.  Furthermore, the spirit of the Thirteenth Amendment of the U.S. Constitution may resonate with the quid pro quo donation of kidneys.  However, given the prospect of freedom after 16 years in jail, it is unlikely that the Scott sisters will protest.

More biolaw at LEXVIVO.


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