New Year / New Execution

There was an end of the year order from Justice Sotomayor, in her role as the circuit justice for the Second Circuit (they should have a special case once a term where they preside like back in the day) denying a request Gigi Jordan that would have allowed her to continue to stay out of prison.

She was soon after found dead. As expected, it was by suicide, the end of a tragic, convoluted story involving her killing her autistic son.  All those bare orders have stories behind them too, if not all this tragic.

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Jordan killed herself with nitrogen gas (she used pills to kill her son; she was convicted of manslaughter though she claimed she did it since his father was going to kill him -- she sounds unhinged). Amber McLaughlin was executed by lethal injection.  We have not had nitrogen gas yet even if it was suggested as an alternative for around five years now.

McLaughlin is the first openly transgender person executed (it's probable there was one among the thousands, at least, who was not so openly trans as well).  She transitioned in prison.  Before transition, she raped and murdered a former girlfriend, Beverly Guenther.  The SCOTUS (no last-minute one) appeals and (according to the DPIC) execution warrant is in the name of Scott McLaughlin.  

I'm not sure about the full story about that death warrant bit, but it came off as problematic, and worthy of more attention than it might be getting. One trans activist on Twitter noted she did not think it really notable McLaughlin is trans.  I guess on some level it is a sort of footnote though she does highlight the ongoing needs of trans prisoners.

I did a docket search and the last appeal concerned a claim of insufficient counsel involving the mishandling of a key psychiatrist expected to be called as a witness.  It turned out that he had a problem and at the last minute, they could not call him. The Supreme Court denied the appeal without comment last June.  

McLaughlin's background and mental state very well might have been mitigating factors here.  The jury, at the very least, could not unanimously decide on the death penalty.  Missouri, atypically, however, does allow a judge a final decision in such a situation.  The judge handed down a death sentence.  Some former judges flagged this along with not satisfactory submission of mental health and brain damage evidence.  No avail.

[The article linked above has useful further information and links.]

The crime took place twenty years ago [convicted in 2006], which might not be too unusual as these things go.  Still, I retain a general sentiment that it is additionally troubling to execute someone for a long-ago crime. Yes, as Justice Breyer notes, the time is partially a result of the appeals process which is necessary for due process.  This time, the fact we have a different person has an additional wrinkle.  

Justice Breyer was involved with the U.S. Sentencing Commission (as was his brother) and did not go along with other liberals who limited the discretion of judges to decide the facts required for sentencing.  But, Breyer argued that the death penalty was different.  

He argues sentencing someone to death is a special moral act that warrants the voice of the community as expressed by a jury.  I might expand on the argument to apply to other crimes.  I do think he has a point. My sentiment is that overall aggravating factors are "facts" that the jury has a constitutional role to weigh.  The death penalty is not like giving people five more years in prison.  Maybe, you can apply my logic to other cases too.  Like Breyer, however, I say "death is different," so it's an easier call.

I don't think Amber McLaughlin's case is a "worse of the worst" situation.  If we are only going to have around twenty executions a year, maybe we should limit it to cases where juries cannot decide whether or not to execute and other procedural problems can credibly be flagged by seven former judges.  A final bit: coverage shows a lack of transparency involving the drugs used as lethal injection continues to be problematic. 

Will 2023 bring an official use of nitrogen gas to kill?