Missouri executed a transgender woman whose jury did not recommend death

Missouri is one of two states that allows a judge to impose a death sentence under certain circumstances if the jury can't decide on a sentence.

Chris Geidner

Jan 3, 2023

It already feels like there’s a lot going on in 2023 — with questions remaining about whether Kevin McCarthy is actually going to become the Speaker of the House of Representatives and Damar Hamlin collapsing at the Monday Night Football game, sending him to the hospital reportedly in critical condition and ending the game for the night.

There will be much more reporting on both of those important stories throughout the day today.

I’d like to focus attention for a moment this morning on a different story.

PETITION FOR COMMUTATION OF THE SENTENCE OF DEATH TO: The Honorable Michael Parson, Governor of the State of Missouri INTRODCUTORY STATEMENT Amber McLaughlin is scheduled to be executed by lethal injection on January 3, 2023, at 6:00 p.m., the Tenth Day of Christmas. McLaughlin faces punishment for the tragic events of November 20, 2003, when McLaughlin murdered Ms. Beverly Guenther. The lead investigating officer contemporaneously noted McLaughlin’s genuine remorse, as has every expert to evaluate McLaughlin in the years since the trial. Amber McLaughlin never had a chance. She was failed by the institutions, individuals and interventions that should have protected her, and her abusers obstructed the care she so desperately needed.

This evening, Missouri is scheduled to carry out the first execution of the year just three days into the year.

Amber McLaughlin is scheduled to be executed for the 2003 murder of her ex-girlfriend.

There is no litigation pending; the only outstanding question is whether Missouri Gov. Mike Parson, a Republican who has overseen four executions as governor, will grant McLaughlin clemency.

[Update at 4 p.m. ET: Parson announced that the execution will be proceeding today, which was reported as a denial of McLaughlin’s clemency request.

Update at 8:30 p.m. ET: Missouri executed Amber McLaughlin. The reported time of death was 6:51 p.m. CT.]

McLaughlin is transgender, and much of the media coverage has focused on the fact that she would be the first openly transgender woman executed in the United States. A CBS/AP story detailed that “McLaughlin began transitioning about three years ago” and received help from another trans person who was in prison at the time in dealing with the “paperwork and bureaucracy,” but also in addressing her fears for her safety in prison.

In addition to that aspect of McLaughlin’s story, there is a legal issue that should be getting more attention than it has: McLaughlin is one of the few people in the nation facing execution despite no jury having voted to sentence them to death.

There are, to be clear, other issues, too. McLaughlin’s story — as with so many people on death row — also includes questions about intellectual capacity and features a childhood that included severe abuse, factors mentioned in some of the other reporting. She also would be the first woman to be executed in Missouri in the modern era of the death penalty.

Although a federal district court had actually ordered a new sentencing phase for McLaughlin, the US Court of Appeals for the Eighth Circuit reversed the district court’s decision in 2021.

Part of the district court’s decision was based on Missouri’s outlier death penalty law, which allows a judge to choose whether to impose death at the final step of the sentencing phase if the jury can’t reach a decision. (Only Indiana today has a similar law. Indiana last carried out an execution in 2009, however, and only eight people were on the state’s death row as of last April. Missouri has carried out 26 executions since Indiana’s most recent execution, and has more than twice as many people on death row.)

Here was how the Eighth Circuit described how the Missouri law was carried out in McLaughlin’s case:

The jury could not decide the issue of death. In a special verdict form, the jury found the existence of a statutory aggravator—depravity of mind—beyond a reasonable doubt. The jurors did not find unanimously that the mitigating factors outweighed the aggravating factors. Turning to the next step, the jury could not unanimously agree on whether death was warranted under all of the circumstances. Because the jurors were unable to agree on punishment, adjudication of the issue went to the trial judge. The judge sentenced McLaughlin to death.

The Eighth Circuit decided that, under current US Supreme Court law and under the Missouri Supreme Court’s interpretation of its law, Missouri’s outlier death penalty law is constitutional. That was one of several rulings made by the Eighth Circuit that ultimately kept McLaughlin’s original death sentence in place, leading to today’s scheduled execution.

McLaughlin’s lawyers address the outlier state law as the first of three reasons for Parson to grant her clemency.

As put in McLaughlin’s clemency petition:

Mercy is warranted for these compelling reasons. First, executive clemency will not disturb a jury verdict imposing the death penalty because the jury did not vote to impose the death penalty. An act of executive clemency therefore will not encroach on the reverence of jury verdicts and, in fact, will more accurately reflect the jury’s wishes regarding punishment since it did not vote for death. Second, McLaughlin consistently and genuinely expressed remorse for the death of Ms. Beverly Guenther. She remains tormented by memories of her death. Third, McLaughlin endured extensive childhood trauma at the hands of her biological, foster and adoptive parents, abuse resulting in brain damage even before McLaughlin was born. Those with a moral duty to protect her wantonly inflicted this childhood abuse.

The lawyers are not alone.

Reps. Cori Bush and Emanuel Cleaver also have asked Parson to grant the clemency request, in part based on the Missouri law.

Noting the above passage of the petition, the pair wrote that “the jury deadlocked on whether to impose capital punishment; at that point, a single person – the presiding judge – stepped in and unilaterally condemned Ms. McLaughlin to death.”

Now, the decision on Amber McLaughlin’s life will apparently come down to Parson.

MORE ON THE CASE: Ryan Krull, “Amber McLaughlin transitioned on death row. Now she faces execution,” St. Louis Public Radio, Dec. 15, 2022

MORE ON THE LAW: Michael Essma, “DEAD-Locked: Evaluating Judge-Imposed Death Sentences Under Missouri’s Death Penalty Statute,” Missouri Law Review, Winter 2020