Missouri Set to Execute Amber McLaughlin on January 3 in First U.S. Execution of a Transgender Person

On January 3, 2023, Missouri is set to exe­cute Amber McLaughlin (pic­tured), the first trans­gen­der per­son sched­uled to be put to death in the United States. 

Tried as Scott McLaughlin, her jury reject­ed three of the four aggra­vat­ing cir­cum­stances advanced by St. Louis County pros­e­cu­tors but split on its sen­tenc­ing ver­dict. The vast major­i­ty of death-penal­ty states require a unan­i­mous jury vote for death before the death penal­ty may be imposed. But under Missouri law, a nonunan­i­mous jury vote is deemed a hung jury, trig­ger­ing a statu­to­ry pro­vi­sion that allowed McLaughlin’s tri­al judge to inde­pen­dent­ly impose sen­tence. McLaughlin’s tri­al judge then relied upon the aggra­vat­ing cir­cum­stances reject­ed by the jury to sen­tence McLaughlin to death.

In a 27-page appli­ca­tion for clemen­cy filed on December 12, 2022, clemen­cy coun­sel described the chron­ic trau­ma McLaughlin endured as child, includ­ing phys­i­cal and sex­u­al abuse, stints in fos­ter care, brain dam­age from fetal alco­hol expo­sure, and men­tal ill­ness that was man­i­fest in severe depres­sion that led to mul­ti­ple sui­cide attempts both as a child and an adult. McLaughlin’s tri­al lawyer had promised in his penal­ty-phase open­ing state­ment to present expert men­tal health tes­ti­mo­ny describ­ing that his­to­ry but then failed to do so when his supe­ri­ors made a last-minute deci­sion to pull his expert wit­ness. This ​“com­pelling men­tal health evi­dence,” McLaughlin’s clemen­cy lawyers argued, ​“would have refut­ed the sole remain­ing aggra­vat­ing fac­tor” in the case — that McLaughlin had act­ed with ​“deprav­i­ty of mind” when she killed her ex-girlfriend. 

In 2016, a fed­er­al dis­trict court over­turned McLaughlin’s death sen­tence, call­ing the fail­ure to present the men­tal health evi­dence a ​“griev­ous” and prej­u­di­cial error. However, the U.S. Court of Appeals for the Eighth Circuit reversed that rul­ing and rein­stat­ed her death sen­tence. The U.S. Supreme Court sub­se­quent­ly declined to review her case.

McLaughlin’s clemen­cy peti­tion has received the sup­port of numer­ous groups, includ­ing sev­en for­mer Missouri tri­al and appel­late judges and two Missouri mem­bers of Congress. Saying that ​“the voice of the com­mu­ni­ty … did not rec­om­mend the sen­tence of death,” the judges, led by retired Missouri Supreme Court Chief Justice Michael A. Wolff, wrote to Missouri Governor Mike Parson on December 15, 2022, urg­ing him to com­mute McLaughlin’s sen­tence to life with­out parole. Representatives Cori Bush and Emanuel Cleaver, both also ordained min­is­ters, wrote to Parson on December 27, 2022, that ​“we believe in account­abil­i­ty but also the sanc­ti­ty of life, and do not think these tenets are mutu­al­ly exclu­sive. … You have it in your pow­er to save a life by grant­i­ng clemen­cy. We urge you to use it.”

The judges, refer­ring to McLaughlin by her gen­der at the time of tri­al, argued in their let­ter that ​“Mr. McLaughlin was deprived of his right to a jury.” Even with­out hear­ing the promised mit­i­gat­ing evi­dence, the judges not­ed, ​“McLaughlin’s jury dead­locked and refused to return a death ver­dict. Had the men­tal health evi­dence that includ­ed brain dam­age been pre­sent­ed, it would have result­ed in a life recommendation.”

The jury, they wrote, ​“did not unan­i­mous­ly and inde­pen­dent­ly make an affir­ma­tive deter­mi­na­tion a death sen­tence was war­rant­ed. … [T]he voice of the com­mu­ni­ty in which the crime occurred … said that the State did not sus­tain its bur­den to mer­it a death sentence.” 

Representatives Bush and Cleaver told Parsons that McLaughlin’s back­ground and men­tal health prob­lems war­rant­ed mer­cy. ​“Ms. McLaughlin faced a trau­mat­ic child­hood and men­tal health issues through­out her life,” they wrote. ​“She expe­ri­enced hor­rif­ic abuse and neglect at the hands of var­i­ous care­givers; court records indi­cate her adop­tive father would fre­quent­ly strike her with pad­dles and a night stick, and even tase her. Alongside this hor­ren­dous abuse, she was also silent­ly strug­gling with her iden­ti­ty, grap­pling with what we now under­stand is gen­der dys­pho­ria. The abuse, cou­pled with the per­sis­tent men­tal tur­moil sur­round­ing her iden­ti­ty, led to mild neu­ro­log­i­cal brain dam­age and mul­ti­ple sui­cide attempts both as a child and as an adult.”

“Ms. McLaughlin’s cru­el exe­cu­tion,” they wrote, ​“would mark the state’s first use of the death penal­ty on a woman since the U.S. Supreme Court rein­stat­ed cap­i­tal pun­ish­ment in 1976, and even worse it would not solve any of the sys­temic prob­lems fac­ing Missourians and peo­ple all across America, includ­ing antiLGBTQ+ hate and vio­lence, and cycles of vio­lence that tar­get and harm women.”

Issues fac­ing LGBTQ+ cap­i­tal defen­dants have attract­ed increased atten­tion in recent months, with the Ohio Supreme Court’s affir­mance of the death sen­tence imposed on Victoria Drain and the com­mu­ta­tion of the death sen­tence imposed on Oregon death-row pris­on­er Tara Zyst, both trans­gen­der women. A sum­mer 2022 arti­cle in the St. John’s Law Review explored the impact of attempts by pros­e­cu­tors to obtain death sen­tences against women and LGBTQ+ cap­i­tal defen­dants by invok­ing dehumanizing stereotypes. 

Providing mul­ti­ple case stud­ies, authors Jessica Sutton, John Mills, Jennifer Merrigan, and Kristin Swain argue that ​“courts are reluc­tant to rem­e­dy the dev­as­tat­ing impact of pros­e­cu­to­r­i­al argu­ments that dehu­man­ize mar­gin­al­ized per­sons fac­ing the death penal­ty, con­demn­ing these argu­ments while nev­er­the­less affirm­ing result­ing con­vic­tions based on pro­ce­dur­al doc­trines such as harm­less error.” Dehumanizing stereo­types, they write, ​“are par­tic­u­lar­ly prob­lem­at­ic — and effec­tive — when used against LGBTQ+ peo­ple,” both ​“reinforc[ing] and leverage[ing] social bias­es as fac­tors in aggra­va­tion [and] creat[ing] arti­fi­cial bar­ri­ers to con­nect­ing with the per­son charged, ​‘oth­er­ing’ LGBTQ+ defen­dants in such a way as to min­i­mize the impact of mitigating evidence.”

“By cap­i­tal­iz­ing on stereo­types, homo­pho­bia, and big­otry,” the authors write, ​“pros­e­cu­tors are also able to exploit the very vul­ner­a­bil­i­ties that should sup­port a cry for mercy.”