Missouri executed the first openly transgender person in the country on Tuesday evening under an uncommon state law that allows judges to impose the death penalty when a jury deadlocks on a punishment.
Amber McLaughlin was put to death by lethal injection for the rape and murder of her ex-girlfriend, Beverly Guenther, in 2003, her attorney Michelle Law confirmed in an email to Bloomberg Law.
A trial judge imposed the death penalty after the jury was unable to agree on a sentence. Missouri and Indiana are the only states with this unusual scheme that gives judges sole discretion when there’s a hung jury, and legal scholars question whether the two states’ laws are unconstitutional.
“In most other jurisdictions if a jury fails to reach a verdict, either the person is sentenced to life as a matter of law or in some other states if they can’t agree, it would be just like a mistrial and they would have a new sentencing trial in front of a new jury,” said John Blume, a Cornell Law School professor and director of the Cornell Death Penalty Project.
The US Supreme Court held in 2016’s Hurst v. Florida that the Sixth Amendment requires a jury, not a judge, to find the aggravating facts necessary to impose a death sentence. The high court ruled Florida’s law, which required a judge alone to find the existence of aggravating circumstances to justify a death sentence, unconstitutional.
Robert Dunham, executive director of the Death Penalty Information Center, said the constitutional issue McLaughlin’s case presented is whether states with these hung jury laws that require the judge to make an independent determination of aggravating and mitigating circumstances is a violation of the Sixth Amendment right to a jury. Craig Wood, another inmate on death row in Missouri, asked the justices in January 2020 to review this very question, but the court didn’t take the case.
In McLaughlin’s case, a federal district court tossed out her sentence in a habeas review based on ineffective counsel, but the US Court of Appeals for the Eighth Circuit reinstated it. The decision was appealed to the Supreme Court but the justices refused in June to take the case.
Journalist Chris Geidner wrote about McLaughlin’s pending execution on Tuesday morning in his newsletter, Law Dork.
Activists hope the attention paid to McLaughlin’s case will help change the Missouri law even though Republicans control both the state legislature and the governor’s office.
“We have to hold out hope every single time, but Missouri has shown to be particularly brutal,” said Elyse Max, co-director of Missourians for Alternatives to the Death Penalty.
In addition to McLaughlin, two of the other remaining 17 people on death row in the state, were sentenced to death by a judge, Max said. A judge in Missouri last sentenced someone to death after a jury failed to agree on a punishment in 2018, she said.
Gov. Mike Parson denied McLaughlin request for clemency and his office confirmed in a statement earlier Tuesday that the state planned to carry out her sentence.
“McLaughlin’s conviction and sentence remains after multiple, thorough examinations of Missouri law. McLaughlin stalked, raped, and murdered Ms. Guenther. McLaughlin is a violent criminal,” Parson said in the statement, which referred to McLaughlin as Scott, the name she used prior to transitioning.
In her clemency request, McLaughlin’s federal public defenders detailed abuse and neglect their client faced as a child from her own parents and while in the foster care system, trauma that led to an intellectual disability and depression.
Hearing this evidence at trial, they said the jury “refused to return a death verdict,” rejecting three of the four aggravating factors the state relied on in pushing for a death sentence.
“Missouri is one of two states that allow a county trial judge to impose the death penalty even if the jury deadlocks on the death sentence after finding a single aggravating factor, which is what happened in Amber’s case,” Law said in an email prior to the execution.
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