Florida set to carry out execution with
drug not previously used in lethal injections
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[August 24, 2017]
By Bernie Woodall
FT. LAUDERDALE, Fla. (Reuters) - Florida is
scheduled on Thursday to put to death an inmate by lethal injection that
includes a drug never before used in a U.S. execution.
Mark James Asay, 53, would be the first Florida inmate executed since
January 2016, when the U.S. Supreme Court ruled the state's death
penalty process was unconstitutional because it gave powers to judges
that should be reserved for juries.
Asay would also be the first white man executed for killing a black man
in Florida since the state revived its death penalty in 1979, according
to the Death Penalty Information Center.
In dissenting from a Florida Supreme Court ruling earlier this month
denying a stay of execution, Justice Barbara Pariente wrote that Asay
was being treated as "the proverbial guinea pig" for the untested death
penalty drug, etomidate, which she said would violate the constitutional
protection against cruel and unusual punishment.
The court's majority cited a U.S. Supreme Court decision from two years
ago that said that since the death penalty is constitutional, there must
be a way to carry out executions and that eliminating all pain during
them was not workable.
Florida, along with other states, had to find a replacement for drugs
that became unavailable when drugmakers stopped distributing them
because of their stands against the death penalty. In Florida, etomidate
replaced midazolam, which Pfizer Inc stopped making last year to keep it
from being used in executions.
Etomidate, an anesthesia invented in Belgium in the 1960s by Janssen,
now a division of privately held U.S.-based Johnson & Johnson, is off
patent and more readily available than midazolam and produced by others
as a generic drug. Janssen stopped making the drug last year, after
never selling it in the United States.
"We do not condone the use of our medicines in lethal injections for
capital punishment," Janssen said in an emailed statement.
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Deathrow inmate Mark James Asay is pictured in this undated handout
photo obtained by Reuters August 14, 2017. Florida Department of
Corrections/Handout via REUTERS
Marty McClain, Asay's attorney, told Reuters on Wednesday that
etomidate, which would be part of a three-drug lethal injection
protocol, causes pain before it takes hold and could cause
involuntary body movements that make it difficult for corrections
personnel "to know when the guy is unconscious."
Asay was sentenced to death in 1988 for the killing of two men in
Jacksonville a year earlier.
He shot Robert Lee Booker in the belly after an argument in which he
used a racial slur against him, according to court records. He
killed Robert McDowell by shooting him multiple times in the chest.
Asay said later he believed McDowell had cheated him out of $10.
Booker was black and McDowell was white.
Since it resumed capital punishment in 1979, Florida has executed 90
men and two women.
Florida Governor Rick Scott signed a death warrant for Asay in
January 2016. Days later, the U.S. Supreme Court ruled it should be
juries, not judges, who decide whether aggravating factors determine
if a defendant is eligible for execution.
Florida lawmakers rewrote the state's capital punishment law this
year to require that juries be unanimous when recommending the death
(Reporting by Bernie Woodall; Editing by Peter Cooney)
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