By Christopher Zoukis
With the anesthetic midazolam increasingly difficult to obtain, Florida executed Mark Asay, a 53-year-old inmate convicted of two killings with a three-drug lethal injection protocol never before used in this nation.
In place of midazolam, on Aug. 24 the state used etomidate, a decades-old anesthetic, to render Asay unconscious then injected him with rucoronium bromide, a muscle relaxant, to paralyze his lungs, followed by potassium acetate, which stops the heart.
The makers of each sedative (Janssen Pharmaceuticals, a division of Johnson & Johnson, for etomidate and Pfizer, for midazolam) say they do not condone its use in executions and have tightened up distribution to make it harder to obtain for that purpose.
The on-again, off-again availability of execution drugs sometimes affects the timing of executions or leads to changes in execution protocols. Arkansas, for example, accelerated some execution dates this spring in order to use bulk-purchased midazolam before it reached its expiration date. The state more recently said it had found a source for 40 vials of the drug. Mississippi authorities, facing appeals of the state's execution protocol, recently told a court they have obtained new supplies of execution drugs, and are defending a new state law shielding the supplier’s identity.
Asay’s execution was also the first time that Florida or any other state intentionally used potassium acetate, although the drug was used mistakenly in a 2015 execution in Oklahoma.
In court, attorneys for Asay had questioned the use of etomidate, noting it has apparently caused pain and involuntary writhing for some patients. But the Florida Supreme Court cleared it use in lethal injection executions after hearing testimony from four experts that Asay would face only “a small risk” of mild to moderate pain. One member of the court dissented, saying Asay would be the “proverbial guinea pig” for the new drug, and voiced the view it would violate the Eighth Amendment’s bar to cruel and unusual punishment. In 2015, in Glossip v. Gross, the U.S. Supreme Court rejected three Oklahoma Death Row inmates’ challenge to use of midazolam.
Asay’s execution was the first in Florida in over 18 months, after the U.S. Supreme Court in January 2016 decided by an 8-1 margin, in Hurst v. Florida that the state’s process for sentencing in capital cases was unconstitutional, because it allowed judges to reject a jury’s recommendation on whether the death penalty should be imposed. The high court held that the state’s system contravened the Sixth Amendment’s guarantee of a right to jury trial, because the jury as not allowed to make all decisions on capital punishment.
The Asay case also broke with tradition in another way: he was the first white defendant in Florida sentenced to death for killing a black victim. Convicted of shooting a black man to death in 1987, Asay made racist comments at the time, according to prosecutors. He was also convicted of a second killing earlier that year.
According to the Death Penalty Information Center, since Florida reinstated its death penalty in 1976, at least 20 black inmates received the death penalty for killing white victims. During that period, Florida executed 92 inmates. Asay's was the 24th execution approved by Gov. Rick Scott (R), who has approved more executions than any other governor in Florida history.
This article first appeared on Blogcritics.
Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonerResource.com.