It was a strangely friendly conversation. We could have been chatting at a cocktail party, gossiping about Prince Harry and Meghan Markle, or some other trifle.
Instead, the topic was the gruesome business of criminal executions—in particular, that of Amber McLaughlin, the first transgender woman put to death in this country.
And I was chatting with Steven Goldman, the judge responsible for McLaughlin’s fate. Under Missouri law, trial judges have the right to impose a death sentence when there’s a hung jury, which was what happened in McLaughlin’s case.
It’s not often that the object of my derision agrees to speak with me on the record. But that’s what happened after Judge Goldman emailed me, taking issue with my recent column that accused him of playing God.
First, he took umbrage that I called him “cocksure.”
“As for my ‘cocksure’ position, the imposition of the death sentence is the most serious ruling a judge can make and I weigh it as heavily and thoroughly as I can,” Goldman wrote to me.
In two phone conversations, one joined by my colleague Lydia Wheeler, we talked about the death penalty, its impact, and its purpose.
The conversation was serious, but occasionally humorous. Jerry Seinfeld even made a cameo (the judge said he’s binging on the series during retirement).
Here is an edited version of our conversations:
Q: You were just a quiet trial judge in St. Louis. And now you’ll be remembered as the judge who executed the first transgender woman in the US. How does that feel?
A: The way I look at it, being a judge has been my whole life. I’m not going to hide. The old thing was that you never want to talk to the media. But at this stage of my life, I have no reason not to be honest.
Q: I was definitely critical of both you and the Missouri law that gave you the power to impose the death penalty. But what really intrigued me was your comment to me: “The Missouri law may not be perfect and will probably be modified by future court rulings as it has been in the past, but it follows the current state and federal requirements.” What do you mean by that?
A: I meant the law is in a state of flux. This is an area that’s very dynamic, so you can’t write a law that’s perfect when it’s transitioning. It meets requirements now but may not reach it for the future.
Q: You’re talking about the death penalty in general. But how do you feel about the Missouri law—which you helped draft—that gives judges the power to impose the death penalty when the jury is deadlocked on the sentence? Is it good law and will it stand?
A: It has stood. Throughout time, judges have decided the death penalty. Your article made it sound like this is a catastrophe, a horrible thing, but judges have always done so in the past.
I’m not saying it’s right or wrong that judges do the sentencing, but judges do have more experience. The death penalty law in Missouri follows the US Supreme Court rule set out in Ring v. Arizona. The jury makes the factual finding and the judge can impose the death penalty.
A: The alternative would be life without parole. Judges don’t make the law; we just follow it. I know that sounds bad, but we’re required to follow the law.
I strongly believe in jury trials. But if they’ve gone as far as they can, the judge should decide. When I say that I’m following the law, I’m not saying it’s a bad law. I think judges are capable of making a conscientious decision.
Q: I don’t doubt you thought long and hard about the decision, but I’m still wrestling with how you decided that death was the appropriate sentence.
A: The jury made the determination there was depravity of mind. I didn’t do that. Missouri law says the trier should decide death or life without parole when the jury is deadlocked.
It was a horrible crime—the way he killed her, stabbing her, strangling her, and raping her. Almost as bad was that he stalked her; I told [McLaughlin] at sentencing that she led a tortuous life because of you, and that’s what went through my mind.
Q: I agree it’s hard to feel sorry for McLaughlin. But you imposed the ultimate sentence when the jury seemed reluctant to impose it.
A: Well, we don’t know what they thought. Under the law it was my determination. ... You said the trend is to do away with that so it will probably be life without parole, but they haven’t done it yet.
As for me, I have mixed feelings. I’ve seen bad cases more than these jurors have. The reason for the judges to decide is that they have so much more experience, more than the best instructed jury. ...
But I really don’t know whether it’s better for the judge or jury to [impose the death penalty]. Missouri is probably the best system. If the jury can’t do it, why should it go to another jury or be automatically life without parole?
Q: You said several times you’re just following the law, making the death sentence sound logical and inevitable. But there was a fork in the road, and you chose to impose the ultimate sentence. There was a personal element involved because judges are ultimately humans.
A: You’re absolutely right. But what could I do? I had to do what I thought was right and follow the law.
It was a tragedy for everyone—Amber and Beverly’s families. It was something I had to do.
Q: Do you ever have second thoughts?
A: No. I sleep well at night.
Q: Where do you get the conviction that the death penalty is just?
A: I don’t think there’s any doubt that the death sentence can be a deterrent. I’m aware of studies in which prisoners are interviewed, and robbers have said they would have killed someone but for the death penalty. It won’t deter everyone, but if it deters anyone, that’s significant.
Q: But if you look at countries without a death penalty, it’s not as if the murder rates are higher than the US. In fact, in many of those countries, the murder rate is substantially less than here.
A: You just don’t know. It’s like looking at the lighthouse. You can’t say it doesn’t save lives. You know it saves some ships. What you’re doing is balancing the life of an innocent victim—Beverly Guenther—against a convicted murderer.
But I respect your views, if you don’t believe in it.
Source: news.bloomberglaw.com, Vivia Chen, January 11, 2023
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
but by the punishments that the good have inflicted." -- Oscar Wilde