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December 30, 2010

Lots of (constitutional?) issues surrounding high-profile clemency grant in Mississippi

A helpful reader altered me to this effective Washington Post article noting all the intriguing stories surrounding a decision by Mississippi Governor Haley Barbour to grant clemency to two imprisoned sisters.  Here are the basics:

Mississippi Gov. Haley Barbour (R) announced late Wednesday that he will grant an early release from prison to two sisters serving unusually long sentences for armed robbery.

Gladys and Jamie Scott have each served 16 years of a life sentence.  Their case had become a cause celebre among civil rights groups, including the NAACP, which mounted a national campaign to free the women.

The Scotts were convicted in 1994 for an armed robbery in which they led two men into an ambush. The men were robbed of $11, and their supporters contend that the Scotts, who are black, received extraordinary punishment for the crime.

Barbour said he decided to suspend the sentences in light of the poor health of 38-year-old Jamie Scott, who requires regular dialysis.  The governor asserted that 36-year-old Gladys Scott's release is contingent on her giving a kidney to her inmate sibling.

"The Mississippi Department of Corrections believes the sisters no longer pose a threat to society," Barbour said in a statement.  "Their incarceration is no longer necessary for public safety or rehabilitation, and Jamie Scott's medical condition creates a substantial cost to the State of Mississippi."

NAACP President Benjamin Jealous will meet with Barbour on Thursday, and the two men have scheduled a joint news conference.  "This is a shining example of how governors should use their commutation powers," Jealous said in an interview, praising Barbour's decision.

Jealous and the Mississippi NAACP had been working for much of the year to win the release of the Scotts, who would have come up for parole in 2014.  NAACP members received e-mails asking them to sign a petition, and the association has pushed for news coverage of the case.

Barbour, who is weighing a run for president, announced his decision a week after he ran afoul of civil rights advocates.  Last week, Barbour backtracked on comments he made about the civil rights era in Mississippi.

The governor, who came of age during the civil rights movement, told the Weekly Standard that he didn't remember the time "being that bad," and he spoke benignly of the white Citizens Council in his home town.  The councils enforced segregationist policies. Barbour condemned such groups and policies in a later statement.

An official statement from Gov. Barbour can be found here. It expressly states "Gladys Scott's release is conditioned on her donating one of her kidneys to her sister, a procedure which should be scheduled with urgency."

Though clemency decisions are rarely ever subject to court scrutiny, the Supreme Court has indicated that they are subject to some constitutional limits.  Requiring someone to donate a body part as a condition of a sentence commutation might get close to the constitutional line.  (On that front, consider this new Gawker story, which is headlined "Mississippi Officially Begins Harvesting Organs of Prisoners.") 

In addition, the 14th Amendment would arguably prohibit a clemency decision made solely on account of race, although Barbour's explanation for the grant would seem to undermine any assertion that his decision was made purely on racial grounds.  And the notion of releasing a sick prisoner to enable a state to avoid having to cover her medical costs (or to help a potential political candidacy), though perhaps a bit unseemly, does not obviously create any constitutional concerns. 

December 30, 2010 at 10:25 AM | Permalink


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Doug, you might need to look at the clemency application before deciding whether the constitutional line was approached and/or crossed. I doubt that's something Barbour's people came up with. I suspect the suggestion about giving a kidney came from the sisters themselves. If they suggested that course of action and Barbour merely granted clemency based on their representations in their clemency applications, I wouldn't offhand see anything wrong with it from a constitutional perspective, in this non-lawyer's opinion. I'd totally see your point if the Governor offered commutation across the board to anyone willing to give up an organ, but in this case it's almost certainly the purported donor who's making the request.

As for "releasing a sick prisoner to enable a state to avoid having to cover her medical costs," you're going to see a lot of that in the coming years. The inmate population is graying and their med bills will be high. Plus states pay 100% of prisoner health costs but the feds pay 60%+ of the bill if they're out of custody and on Medicaid, or all of it if they're eligible for Medicare.

Posted by: Gritsforbreakfast | Dec 30, 2010 12:57:37 PM

If, as the governor's statement indicates, the organ donation condition is in the governor's signed commutation warrant (and that's what this was notwithstanding the "suspension" fiction), it really doesn't matter what was in the application. While some arguably onerous conditions have been in the past been imposed on clemency releases (e.g., join the Navy) I have never heard of anything quite like this.

Posted by: margy | Dec 30, 2010 2:22:59 PM

Grits: Press follow-up indicates that the sisters did propose the kidney donation, but I am not confident that this fact alone make the condition constitutional. Suppose a prisoner offered to be a slave to the Lt. Gov. if/when given a commuted sentence. I am not sure the Constitution would then allow a gov to condition release on the offender working as a slave. Or imagine if the prisoner promised never to go to church or never to vote for Democrats if released. I am not asserting that the Constitution obviously prohibits lots of conditions in a clemency grant, but I do think it raises a really interesting set of issue.

And, just for a thought experiment, what if a governor facing an overcrowded prison problem offered commutations across the board to any non-violent drug offender who joined the Army and pledged to submit to monthly drug testing for a decade? In addition to wondering if folks think this is a good idea, I wonder if any court would get in the way.

Posted by: Doug B. | Dec 30, 2010 7:01:19 PM

Doug, given that the 13th Amendment specifically states that "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction" (emphasis added), I'm curious what in the Constitution you think would support overturning a situation where "a gov [chooses] to condition release on the offender working as a slave." Slavery is, in fact, expressly authorized by the Constitution in such circumstances. Whether it's morally repugnant is another question - many things that are formally constitutional may also be morally reprehensible - but given the plain language in the 13th, how would "slavery" as a commutation condition be unconstitutional?

As to your thought experiment, I once again wonder on what constitutional basis you think the court would intervene? Lots of pardons are conditional and if those are the conditions and the offender accepts them, what constitutional barrier (given broad pardon powers) would stop it? "Wrong" and "unconstitutional" are not synonyms.

Posted by: Gritsforbreakfast | Dec 31, 2010 9:35:08 AM

The big difference/distinction, Grits, is a matter of due process. Imposing slavery as punishment would have to be done with due process and the usual checks/balances. What makes the clemency power different is that it is not usually subject to any formal checks (other than political ones), and what we are really debating here is whether there are any court-enforceable constitutional checks on the exercise of this power. If/when this power is being used somewhat oppressively --- and even with the assent of the defendant --- I think a court ought to subject a clemency grant to some minimal legal scrutiny. Perhaps a slavery condition might be upheld in some circumstances, but I think it ought be subject to some scrutiny by a court under a due process and/or even a 10th amendment theory.

Posted by: Doug B. | Dec 31, 2010 11:34:07 AM

That's splitting the hair pretty thin, Doug. Let's agree, arguendo, that slavery is allowed under the constitution as punishment. Further, clemmency power allows executives not just to pardon but to reduce punishment without eliminating it entirely (commutation), which means in practice they can impose a DIFFERENT punishment than the courts if they choose. Assuming the assent of the offender vis a vis their clemency application, I just don't see the due process concern you're referencing, nor for that matter a 10th Amendment concern, since it's Mississippi doing the pardoning (in this case) and clemency is a longstanding, well-regarded state's right.

Do I think sentences should be commuted to slavery, even with the offenders' consent? Of course not. I just don't see the constitutional argument against it.

Posted by: Gritsforbreakfast | Dec 31, 2010 12:01:15 PM

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