Still Seeking Justice: Scott Sisters Freed From Prison But Not Free

Rachel Roth

Two sisters released from prison on the condition that one give a kidney to the other. Can the government do this?

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.

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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.

News Law and Policy

Freed From a Post-Miscarriage Prison Sentence, El Salvador Woman Could Face More Time Behind Bars

Kathy Bougher

Maria Teresa Rivera was convicted of aggravated homicide in 2012 following an obstetrical complication during an unattended birth the previous year, which had resulted in the death of her fetus. On May 20, Judge Martín Rogel Zepeda overturned her conviction. Now, however, a legal threat could return her to prison.

Read more of our coverage on the campaign for Las 17, the 17 Salvadoran women imprisoned on abortion-related charges, here.

Two months ago, Maria Teresa Rivera was released from a 40-year prison sentence after spending more than four years behind bars. Rivera was convicted of aggravated homicide in 2012 following an obstetrical complication during an unattended birth the previous year, which had resulted in the death of her fetus. On May 20, Judge Martín Rogel Zepeda overturned her conviction. Now, however, a legal threat could return her to prison.

Rivera is part of the group known as “Las 17,” Salvadoran women who have been unjustly convicted and imprisoned based on El Salvador’s highly restrictive anti-abortion laws.

The government-employed prosecutor in Rivera’s case, María del Carmen Elias Campos, has appealed Rogel Zepeda’s decision overturning the original 2012 conviction and allowing Rivera to return to her now-11-year-old son. If the appeal is granted, Rogel Zepeda’s decision will be reviewed by a panel of justices. An unfavorable decision at that point could lead to a new trial.

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“I just don’t understand the prosecutor’s motivation for this appeal,” Rivera told Rewire in an interview. “We are very poor, and there is no one else but me to provide income for our family.”

According to Rivera’s attorney, Victor Hugo Mata, the government tends to require “preventive imprisonment” of the accused during the trial process, which could last months or years. This “preventive imprisonment” could begin as soon as the panel approves an appeal.

Although “the law clearly allows the prosecution to appeal,” Morena Herrera, president of the Agrupación Ciudadana por la Despenalización del Aborto, told Rewire in an interview, “This appeal that questions the decision of the court that granted [Rivera] her freedom is not looking for the truth.”

Herrera pointed out that the witness for the prosecution, a government forensic specialist who performed the fetal autopsy, determined that the cause of fetal death was perinatal asphyxia. “At the trial the prosecutor’s own witness told the prosecutor that he could not accuse a person of a crime in this case of perinatal asphyxia,” Herrera recounted.

“So, if her own witness spoke against [the prosecutor] and said she was not correct, it seems to me that this appeal … is proof that the prosecutor is not seeking either justice or the truth.”

Hugo Mata explained to Rewire that the prosecutor’s appeal asserts that Judge Rogel Zepeda “did not employ the legal standard of ‘sana crítica,’ or ‘solid legal judgment’ in evaluating the evidence presented.”

Hugo Mata vigorously contests the prosecutor’s allegation, noting that the judge’s written decision went into significant legal detail on all the issues raised at the hearing. He believes that a responsible court should see that “there was nothing capricious or contradictory in his highly detailed and legally well-founded decision.”

The three-judge panel has ten working days, or until approximately July 12, to render a decision as to whether to grant the initial appeal, although such deadlines are not always rigidly observed.  If the panel does not grant the appeal, the decision to overturn the conviction will stand.

The Agrupación, including Hugo Mata, believes that the appeals panel will be swayed by knowing that the case is receiving widespread attention. As part of a campaign to bring attention to the appeal process, the Agrupación has set up an email address to which supporters can send messages letting the court know that justice for Rivera is of national and international importance.

“What most worries me is leaving my son alone again,” Rivera told Rewire. “I was forced to abandon him for four and a half years, and he suffered greatly during that time. He is just beginning to recover now, but he never wants to be apart from me. He tells me every day, ‘Mommy, you’re never going to leave me again, are you?’ I had to tell him about this appeal, but I promised him everything would be all right.”

“I was abandoned by my mother at the age of five and grew up in orphanages,” Rivera concluded. “I don’t want the same life for my son.”

Commentary Race

‘Between the World and Me’ Is for All of Us, Even if It Is Not About All of Us

Josie Duffy

I deeply understand the violence Ta-Nehisi Coates identifies in his new book, but it does not quite fit in my personal paradigm. My violence, and the violence of other Black women, is of a different hue.

Ta-Nehisi Coates’ new book, Between the World and Me, is as beautiful as it is sobering. A letter from father to son about the visceral experience of being Black in America, the book is neither a call to action nor a plea for hope, but instead is a detailed cartography of the ways American racism has robbed, claimed, and destroyed Black people in this country. It is not a story of potential or redemption but a deeply rooted narrative of the ways hatred and entitlement have molded and shattered the Black body in America.

The book made me think of my own father, a man who is also trying to parent Black children in a world hell-bent on their destruction. Not so long ago I was 15, and my father was telling me similar things, truths about the world I did not believe but have now confirmed.

Unlike Coates, my father raised Black daughters. However, in a strange turn of events he has recently gained a surrogate son. Patrick and I became friends in eighth grade and managed to stay close even as the chasm between us widened: I left home for college and he cycled through arrests, rehabs, and court dates; I was starting law school when he was sentenced to prison. I was studying in the library when he called from jail to say he was getting out, and did I know of anyone who would pick him up? My dad agreed to give him a ride, which turned into giving him a place to stay for a few days, which, four years later, has turned into becoming a surrogate parent for him.

I thought I knew my father as a parent. He raised me, after all, and between my sister and me we had surely pushed him to his limits. I was confident I had seen the whole spectrum of his pride, hope, disappointment.

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But I was wrong. He is parenting a Black man now, and that means something different.

My dad is king of the worst-case scenario. He is always warning us of something as we walk out the door or hang up the phone, warning us of what lurks just beyond the nearest run to the grocery store or a casual dinner date with friends.

When Patrick grabs the keys to go out my father fears for his body. He warns him of the police, of being in the wrong place at the wrong time. And when I’m the one walking out, he tells me to be careful too. He is less worried about the police and more concerned about the potential destruction of my body in other equally sinister ways.

***

Between the World and Me is an important book—perhaps the most important in a generation—on how race in this country functions. It peels back the cleanly scrubbed picture of race in America to show the ugly, the flesh, the raw sores that persist. Still, I found myself searching for the Black woman experience in the pages. Surely, the Black experience is rife with threads that tie all Black people together, but there are also critical differences. Coates’ description of violence to the Black body does not do justice to the violence to which Black women are and have historically been subject. That violence looks different. It feels different.

Coates is relentless in his description of the trauma and violence inflicted on the Black body, whether it is in the name of capitalism, safety, or the street.

“[R]acism is a visceral experience,” he writes. “[I]t dislodges brains, blocks airways, rips muscles, extracts organs, cracks bones, break teeth.” Later he tells his son, “In America it is traditional to destroy the Black body—it is heritage.”

It is violence that brings to the forefront the fear that exists for me every time my partner leaves the house, or my father travels for work, or a male friend of mine leaves a party late at night. It is the fear of infinite possibility—there are countless scenarios that could result in the destruction of Black men I know and love. An angry racist at a gas station, a power-hungry cop at a traffic stop. Sure, my father is 60, but what does that matter? He is a few bullets away from being Walter Scott.

This trauma and fear is undoubtedly real. And yet—there is a still a disconnect for me in how Coates formulates the racist destruction of the individual. Yes, I recognize such physical destruction. I see remnants of it on the faces of the Black men around me; I hear it in their throats. I deeply understand the violence Coates identifies, but it does not quite fit in my personal paradigm. It is not that I am not susceptible to racial violence; it is not that I do not fear it. But my violence is of a different hue. My fear exists, but not in the exact ways Coates describes.

That, of course, is because Coates is not writing about me. Not really. His story of the Black individual is, likely subconsciously, almost entirely a story about the Black male individual. In a BuzzFeed article, Shani Hilton noted that this is a tradition that has persisted in many of the greatest Black writers, including James Baldwin, the writer to which Coates is most often compared. Hilton laments adroitly that “the black male experience is still used as a stand in for the black experience.” Black women are still missing from the Black male story, serving as supernumeraries instead of co-stars.

Days after finishing the book I am still grappling with a door that Coates left ajar, for which I am most grateful. Early in the book he says, “[R]ace is the child of racism, not the father.” White people are “a modern invention,” he says, and “their new name has no real meaning divorced from the machinery of criminal power.” I had not yet arrived at the realization that racism was constructed before race. Such a structure clarifies my perspective of not only the past and the present but the bleakness of the future. That this country has invented categories from our hatred, rather than derived hatred from already invented categories, is a reminder that humans will develop whatever caste systems necessary to oppress and violate.

Yet, the physical violation that I have been threatened with or subject to is only partly due to the invention of racism and race. I believe in my core that racial violence has been a persistent cancer on this nation, and yet I know intimately that race is not my only physical liability. Perhaps it is not even my biggest one.

That I am Black only tells part of the story. I am a Black woman. And while my race has “never been a matter of…physiognomy,” as Coates puts it, my sex and gender have. These two words are different and nuanced and spectrumized and complicated. But they are both real. And while race may be a modern invention, gender is not. The plunder and pillage of women’s bodies has existed for longer than my brain can comprehend. The persistence of patriarchy means that the subjugation of women is not only societal, but statutory. Across the nation, state legislatures have codified laws preventing me from making decisions about my own body. They tell me again that my body is not mine.

The history of my body as up for public debate or consumption is not just an American tradition, but a tradition of our species. Like racism, I expect it will exist forever.

I do not mean to imply that the effects of American racism on the Black woman are worse than they are on the Black man. I only mean to say that they are different in crucial ways. I wish Coates—one of the most amazing thinkers of our generation—had explored that more.

***

Here’s a story I almost never tell: Nearly ten years ago, right before I left for college, I was sexually assaulted. Some local college men celebrated the beginning of the school year by helping themselves to my body. I was at a party I should not have been at with people I barely knew. One of the boys sneered at me, said, “You think you’re too good, don’t you?” Too good for him or the party or what I never understood. One moment I was pleading with an acquaintance to leave with me, the next I was struggling in vain to grab hold of more than a fleeting second of consciousness. I wasn’t drinking that night so I must have been drugged. I came to alone and naked. It was light outside. Somehow I managed to get clothes that didn’t belong to me and find my car. I drove home to finish packing for college and I sat in my room and cried as I folded clothes. I was ashamed and terrified. It was a long time before I was angry.

I did not tell anyone for many, many years. I did not tell my best friend or my parents. I did not even tell my sister. I can’t explain why, exactly, other than to say those men wanted me to know that I was powerless, and somehow if I told the story out loud it would make this true.

At this point in my life, the fact that these boys were white holds more significance than it did at the time. The fact that they chose me is, I’m sure, directly related to the fact that my race made me less human to them. And of course it was my sex that was critical to my bodily destruction that night. Being a Black woman requires a unique wariness.

I am not alone in this experience—of my close female friends, few if any have escaped the flagrant and often violent violation of their physical boundaries. I remain constantly aware that my body may be pillaged and plundered again.

So many Black women have a story like this, or other stories that I can’t imagine but demand be told. But in the 152 pages Coates writes about the Black body, he barely acknowledges the unique ways that Black women’s bodies are destroyed.

Is this book for all of us? Yes. It is a deeply important work that everyone—and I mean everyone—should be forced to read and read again. Coates has fit so many experiences into fewer than 200 pages. I thought it was wonderful.

But, this book is not about all of us. It does not include all of our stories.

Perhaps that is too much to ask. Coates is a man writing a letter to his son. This is a man-to-man talk: a conversation about race and also about the way Black men are forced to navigate this world without ending up dead, jailed, or silenced. This is undoubtedly an important conversation. But, as Hilton noted, “The problem is that [t]his book about black male life is one that many readers will use to define blackness.”

Would Coates write this book to his daughter? Would he feel like he had the right to that—to address her experience as a man? And if he did, what would it say? Would he map racial destruction of the body with the same confidence?

***

It does not matter which of the three of us is walking out the door, my father reminds us to be safe. His fear is equally palpable with each of us, yet he is concerned about different things. A Black woman, after all, faces different villains.