Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Supreme Court has never heard a case in which the government has required a person to give a kidney to somebody else. The reason the Court has not heard such a case is that forcing somebody to hand over a kidney is so obviously unconstitutional (at a minimum it violates the due process right of a competent person to refuse unwanted medical treatment) that government has not been foolish enough to try it.
But if the government cannot simply compel us to give up a kidney, can it get our kidneys by making us an offer too good to refuse? Mississippi Governor Haley Barbour believes so. CNN reports that Governor Barbour has struck a deal with two sisters serving life sentences for armed robbery. He has offered the pair suspended sentences (and therefore release from prison) on the condition that one sister donate a kidney to the other sister, who is currently on dialysis at the state's expense. The sisters have accepted the deal.
If this sort of constitutional bargain--in which a kidney earns a get-out-of-jail-free card--seems troubling, consider it in context. The Supreme Court has held that criminal defendants may give up various constitutional protections, including the Fourth Amendment right to be free from unreasonable searches and seizures, the Fifth Amendment right against self-incrimination, and the Sixth Amendment rights to a jury trial, confrontation of witnesses, and the assistance of counsel. These protections are routinely bargained away in exchange for reduced sentences, dismissal of charges, or other benefits when defendants plead guilty pursuant to plea agreements. In contrast to the Court's careful policing of deals involving waiver of First Amendment rights, the Court views contracts between criminal defendants and the state, in which constitutional rights are waived, as voluntary agreements with mutual benefits.
Giving up a kidney is different from these other sorts of bargains. Even if one agrees with the Court's contractual approach to Fourth, Fifth, and Sixth Amendment rights, deals involving rights that have no relationship to the trial process should raise unique concerns: they allow the government to greatly enhance its authority by coordinating the criminal process with other governmental programs. Imagine, for example, if plea bargains involved a promise to vote Republican, to marry somebody of the government's choosing, to have an abortion, or to send one's children to a designated church.
That said, it might seem that there are good reasons for endorsing Barbour's bargain even if we would not want there to be a general program of reduced sentences for organ donors. Barbour's bargain involves an organ transfer between sisters, the donor sister is not unhappy about the arrangement, and both of the sisters acquire freedom as a result. The NAACP and other civil rights groups, which view the life sentences as unjust (the robbery involved $11), are therefore celebrating the outcome.
Yet an organ transfer between siblings, engineered by the state to save it some money, should raise greater scrutiny not less. For if, as the Supreme Court has told us, bargains between criminal defendants and the state are to be treated with reference to principles of contract law, a deal involving kidneys and siblings raises a basic question of voluntariness: it is hard to say no when it's your sister's life on the line. Posted
by Jason Mazzone [link]