Florida is planning to conduct its first execution in nearly 20 months on Thursday evening, with a never-before-used lethal injection drug.
Death row inmate Mark Asay, 53, will be executed for the 1987 murders of Robert Lee Booker, who was black, and Robert McDowell, who was Hispanic — the first time in Florida’s history that the state will execute a white man for killing a black man.
The new drug, etomidate, is a sedative that is supposed to prevent pain, but doctors say it is short-lasting and painful when it’s injected, according to Asay’s court filings. Etomidate is meant to make the inmate unconscious before the second and third drugs — a paralytic and an acid — are administered.
Earlier this month, the Florida Supreme Court ruled that the state can use the drug, saying in their opinion that Asay “has not demonstrated that he is at substantial risk of serious harm,“ only showing that he “is at a small risk of mild to moderate pain.” But experts say the state has been opaque about its selection.
“There are outstanding questions about whether it’s going to do what it needs to do during an execution,” Jen Moreno, a staff attorney at the University of California, Berkeley Law School’s death penalty clinic, told the Associated Press. “The state hasn’t provided any information about why it has selected this drug.”
And it likely won’t: Florida is one of 15 states with death penalty secrecy laws that shield information about execution protocols from the public. And as more and more drug manufacturers speak out against the death penalty, states are quietly looking for drugs in less secure, secretive markets.
Yesterday Johnson & Johnson, which makes etomidate but does not sell it in the United States, became the latest drug company to take a public stand against lethal injection.
“We do not condone the use of our medicines in lethal injections for capital punishment,” Greg Panico, a spokesman for Janssen, a division of Johnson & Johnson, said in an email to the Washington Post.
But Florida Governor Rick Scott has been eager to relaunch the state’s executions after the U.S. Supreme Court struck down Florida’s death penalty law in January 2016 on the grounds that the state could no longer allow judges to override nonunanimous juries in death penalty trials. In October 2016, the state changed the law to allow juries to sentence people to death with at least a 10-2 decision — was struck down by the Florida Supreme Court. The state finally mandated unanimous jury verdicts in March.
Asay’s death sentence was decided by a 9-3 jury verdict in 1987. That verdict would keep him from death row today, but the Florida Supreme Court decided the change requiring unanimous verdicts does not apply to older cases.
“It is an injustice because I think the court should have found it to be retroactive to everybody on death row who got a less than unanimous sentence,” said Florida International University law professor Stephen Harper. “But it is what it is.”
Even with the long court-ordered break, more people have been executed under Gov. Scott since his 2010 election than any other Florida governor.
In an unprecedented move, Gov. Scott has taken 27 of death penalty cases away from Orlando prosecutor Aramis Ayala after she said in March that she would not pursue the death penalty in any cases during her term. The Supreme Court will decide soon whether he had the right to do that.