The Florida Supreme Court is refusing to stop the state’s first execution after more than an eighteen-month hiatus. The Justices rejected an appeal on Monday on behalf of Mark Asay, 53, who is scheduled to be executed on Thursday for the killings of Robert Lee Booker and Robert McDowell in downtown Jacksonville. He scheduled to be the first inmate executed in Florida since Oscar Ray Bolin on Jan. 7, 2016.
Less than a week after Bolin was executed, the U.S. Supreme Court held that Florida’s death penalty sentencing process was unconstitutional because it gave too much authority to judges, instead of juries, in deciding whether defendants should be executed. The U.S. Supreme Court decision led to extensive litigation in Florida courts and caused the Legislature to make moves to overhaul the sentencing process.
Gov. Scott signed a death warrant for Asay on Jan. 8, 2016, but the U.S. Supreme Court ruling and the subsequent court cases and legislative changes effectively put Florida’s death penalty on hold. Last month, Gov. Scott rescheduled Asay’s execution for Thursday, August 24.
In the Asay case, the Florida Supreme Court’s majority said that defendant had not shown that the introduction of the drug etomidate into the execution process put him at risk of suffering in violation of the cruel and unusual punishment clause of the Eight Amendment of the U.S. Constitution. Corrections officials plan to use etomidate as a substitute for a previous drug, midazolam, as the first drug in a three-step execution process. It would be the first time etomidate, which is a sedative, has been used in an execution.
Early this year, the Department of Corrections adopted the new three-drug process, known as a “protocol,” that called for using etomidate as the critical first drug to sedate inmates before injecting them with a paralytic, and then a drug used to stop inmate’s hearts.
Along with the lethal injection argument, Asay’s lawyers raised a number of other issues in seeking to stop the Aug. 24 execution, including that actions taken by Attorney General Pam Bondi’s office in the case had violated Asay’s due process rights. However, the Supreme Court majority wholly rejected the arguments.