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.”