31 December 2010

Is Requiring the Noble Act Unethical?

If you work in criminal law you spend much of your time hearing why someone shouldn't be incarcerated and/or why they should get out of jail/prison. Most of the fall under the umbrella of the Big Four and usually they don't work after someone has gone to prison.

Nevertheless, Jamie and Gladys Scott are getting out of prison. Sixteen years ago the two women were part of a violent robbery in which they lured two people to a spot where they were jumped by three others with a shotgun and each was hit in the head. The effort didn't garner much for the robbers because the victims only had $11. Each sister was sentenced to life in prison. Apparently, this has been a cause celebre in Mississippi where the women's supporters focus on the fact that happenstance caused only $11 to be stolen rather than the armed robbery in which purposeful violence was done to each victim.

In any event, the governor is suspending the sentence of both women. One sister's kidneys have gone bad and she is costing the prison system a lot of money in care, so she's getting a release. The other sister wants to donate her kidney to the ailing sister. The governor has agreed to suspend her sentence on condition that she do so.

And there's where people start having problems. Is the governor's requirement legal since you are not allowed to "sell" organs and threatening life in prison puts a price on an organ? Is it ethical for the governor to require an inmate to give up a body part as a condition of a suspended sentence? What happens if the two are not compatible and the transplant cannot take place?

Let's start with the compatibility question first. Every lawyer in the world knows the answer to this. Impossible terms of a contract cannot be enforced. If the organ is not compatible with her sister she'll still get the benefit of her bargain as long as she entered into it in good faith. As you'll see below, I don't think this is an actual contract, but conditions agreed to for probation are generally treated as though they were a contract.

As for the legality and ethics of the situation, that's something of a red herring. This isn't so much a forcing her to do it situation as it is a trust but verify one. The governor didn't go to her and make an offer "Give up the kidney and you get out." Instead, she went to him and said "I need to get out so I can give my sister a kidney." In the first case there would be an offer and acceptance with mutual consideration. In the second case the governor is not getting anything so there's really no consideration on his side.

The manner in which Governor Barbour is handling this is the correct way of handling this sort of situation. Anyone who has worked in criminal law knows that there are a lot of people out there who will say and offer anything to get out of their sentences. They may even mean it when they offer. However, somewhere between the doors of the jail and the point at which they would accomplish their good intentions they lose their way, never accomplishing the good they intended. There are various causes for this - old friends, partying, drugs, apathy, etc. However, if it's in an agreement with which failure to abide means returning to prison, they are more likely to follow through. And if they don't they can serve as an example to the next person who gets a sweetheart deal and might consider blowing it off after he gets out.

Mind you, I hope that the mere nobility of the sister's heart will keep her on track to helping save her sister. However, I've seen too many family members mess over each other once they're out of jail to think he should let her go without some means of verifying that she does what she says she will.


Bad Monkey said...

Happy New Year's eve.

Its true, many have latched onto the, "it was only $11 dollars" argument.

But let us be fair here. If a person robs a bank and hauls $1,000 vs $10,000 their punishment will differ. If a home invader steals a $1,000 TV vs a jewelry box containing $10,000 in gems there will be a significant difference in sentence even if all other aspects of the crime are identical.

The amount of financial loss is very often used to justify a longer sentence, so I have no problem if people push that the minimal loss practically screams out for questioning why a life sentence.

Did they kill anyone - No
Cause permanent physical injury - No
Permanent mental injury - No
Unrepentant 3 strikers - No
Were they even the ones carrying the guns - No

Those all matter, but I have to kind of side with those who presume that a life sentence, actually make that double life sentences to be served consecutively, may have been a bit extreme.

But then again our system isn't perfect.

Want an interesting read? Recall how you discussed (long ago) certain attorneys who would bang their hands on the desk, object, object, object, mistrial, mistrial and basically do more harm than good? Check out:

Trial transcript, skip down to page 25 and skim through page 29. Haven't read the whole thing, but yeah, sounds like they had real winners. Probably some more gems in there.

Anonymous said...

Well the amount of money should not be what is focused on in this crime but rather what the criminals did-lured victims so that a shotgun was later held on the victims and victim's hit on their heads and so on. These women are thugs in my opinion so I do not see why they should get their sentences suspended. The excuse for letting one sister out is she is costing the prison system a lot of money for her care. The other sister said she will donate her kidney for her sister in crime (literally) but my question is this, who does the governor of Mississippi think will pay for the kidney transplant from one sister to the other? Taxpayers of course already have to pay for the incarceration and care of prisoners. Taxpayers will also be stuck footing the bill for this surgery on the two sisters, you just wait and see!I guess the governor is hoping the money will come from ALL taxpayers supporting charity hospitals that will have to foot or write off the cost of doing this type of transplant on these convicted sisters. I believe this because I doubt they have any money or enough money to pay for the cost of the two of them having this type of surgery done--well unless they plan on financing their surgery by holding people up again!!

ParatrooperJJ said...

Tissue type them before letting them out of prison. If they aren't a match, deals off.