Mercy for justice: Why Missouri should stop nation's first execution of transgender woman

On Tuesday , Missouri plans to carry out the first execution of 2023 when it puts Amber McLaughlin to death. If it does, McLaughlin would be the first transgendered person ever executed in the United States.

But beyond this historical first, a look at McLaughlin’s case reveals that she is not all that different from many people on death row in this country. Laughlin committed a brutal crime, but like others awaiting execution, what brought her to that moment was a life marked from her earliest years by brain damage, physical and psychological abuse and mental illness.

Childhood filled with abuse

McLaughlin’s lawyers have petitioned Missouri Gov. Mike Parsons to spare her life. St. Louis Today reports that the lawyers asked him to consider her “abusive childhood, brain damage and fetal alcohol syndrome, bouts of depression as a child and suicide attempts as an adult” as well as the fact that the jury that heard her case was not presented with evidence about those things.

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McLaughlin is not the only transgendered woman now awaiting execution in this country. In October, the Ohio State Supreme Court affirmed the death sentence of Victoria Drain, who murdered another inmate in a residential treatment facility where Drain was being held.

Mclaughlin, who was tried in 2006, was convicted of kidnapping, raping and murdering Beverly Guenther, an ex-girlfriend, three years earlier. McLaughlin was sentenced under an unusual provision of Missouri law. At the conclusion of the trial, the jury that heard the case split on its sentencing verdict after rejecting three of the four grounds that the prosecution had advanced as the reason to return a death sentence. In such circumstances, most state laws would not allow anyone to be given a death sentence. They require a unanimous verdict if someone is to be put to death.

But in Missouri (and also in Indiana), when a jury cannot agree on a sentence, the trial judge is allowed to decide, which he did when he sentenced McLaughlin to death.

McLaughlin transitioned during her time on death row. She was able to do so because of a 2018 federal court decision. That decision held that denying hormone therapy to transgendered people in prison violated the Constitution’s prohibition of cruel and unusual punishment.

So she awaits execution as a woman. According to the Death Penalty Information Center, an anti-death penalty organization that gathers data on capital punishment, “Women are rarely sentenced to death in the United States and executions are even rarer.”

Only 50 women on death row

The center says only 50 of the more than 2,400 people on death row across the country are women. “Although women commit one in eight homicides, they commit a much smaller percentage of offenses that are eligible for capital treatment," law professor Elizabeth Rappaport said.

Most women murderers kill family members or lovers. Those crimes, Rappaport said, “almost never result in death sentences regardless of the sex of the killer.”

If she is executed, McLaughlin would be only the 18th woman executed in this country since 1976, when the Supreme Court allowed executions to resume after a four-year moratorium. No woman has been executed since Lisa Montgomery in January 2021. Her death sentence was carried out as part of former President  Donald Trump’s end-of-term execution spree.

Rappaport attributed the reluctance to execute women to a gender-based inhibition among decision-makers in the death penalty system and the “belief that the public would regard the execution of a woman as inhumane.” She quoted a governor of Oregon who early in the 20th century granted clemency to a woman on death row by saying, “‘When I saw that woman in the penitentiary (the only one there), it made me sick so I turned her loose.’”

That McLaughlin is a transgendered woman may scramble the gender calculus as Gov. Parsons considers whether to grant her mercy. His decision will come when Republican legislators in Missouri have, according to a report in the Springfield News-Leader, “proposed more than a dozen separate pieces of legislation specifically addressing transgender youth…. They come… as swaths of the party continues to focus on anti-transgender rhetoric and policymaking.”

But McLaughlin’s case for clemency has little to do with her gender. It rests instead on a hope that Parsons will recognize the tragic circumstances of her life and how they shaped the person she became.

According to McLaughlin’s clemency petition, she was “abandoned” by her mother and placed into the foster care system, and in one placement, had “feces thrust into her face.” In one foster home, McLaughlin suffered abuse and trauma that included being tasered by her adoptive father.

McLaughlin has been “consistently diagnosed with borderline intellectual disability,” and “universally diagnosed with brain damage as well as fetal alcohol syndrome.”

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Her clemency petition concludes that: “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.”

Law professor Charles Ogletree cited a study published in 2014 that “showed that the vast majority of executed offenders suffered from one or more significant cognitive and behavioral deficits.

McLaughlin’s case gives Americans another chance to confront those facts and to ask, as Bryan Stevenson, the author of "Just Mercy," puts it: “Why do we want to kill all the broken people?”

Her case calls on all of us to acknowledge, in Stevenson’s words, “our brokenness…our weaknesses, or deficits, our biases, our fears. Maybe if we did,” he said, “we wouldn’t want to kill the broken among us who have killed others.”

Austin Sarat is the William Nelson Cromwell professor of jurisprudence and political science at Amherst College in Massachusetts.

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This article originally appeared on USA TODAY: Why Missouri should cancel pending execution of transgender woman