The Death Row inmate whose execution was stayed more than a year ago when the Florida Supreme Court put the state’s death penalty on hold is hoping to win another reprieve from the court.
Mark James Asay is scheduled to be executed at 6 p.m. on Aug. 24. He was convicted and sentenced to death for the murders of Robert Lee Booker and Robert McDowell in downtown Jacksonville in 1988.
Asay is one of two inmates on Florida’s Death Row whose executions were put on hold by the Florida Supreme Court in early 2016 after the U.S. Supreme Court ruled the state’s death penalty sentencing system was unconstitutional.
He’s hoping the state court will put the system on hold again, this time because of a new drug protocol the state will start using for executions.
Florida’s protocol uses three drugs: a sedative, a paralytic and a final drug that stops the inmate’s heart.
The state will start using etomidate, which is also known by its brand name “Amidate,” as the sedative in the protocol. The state had been using midazolam.
Asay’s attorney, Marty McClain, wrote in a motion seeking to stay his client’s execution that the state should maintain the protocol that has been used in the past.
He says the use of etomidate raises questions about the possible effects it could have on the inmate during executions.
“It carries a risk of pain and a risk of seizure-like movements as Mr. Asay dies. This raises Eighth Amendment bases to challenge both the substantial risk of pain and the undignified manner of death,” McClain wrote.
McClain claims the drug could result in pain for up to 20 seconds.
But, the Department of Corrections insists the use of etomidate will not cause any unnecessary pain or suffering for the inmate.
In an order handed down Friday in Jacksonville circuit court, Judge Tatiana Salvador rejected Asay’s request for a stay based on the new drug protocol.
“Defendant has only demonstrated a possibility of mild to moderate pain that would last, at most, tens of seconds,” Salvador wrote in her opinion. “Therefore, this court finds the potential pain and anesthetic aspect of etomidate does not present risks that are ‘sure or very likely’ to cause serious illness or needless suffering or give rise to ‘sufficiently imminent dangers.’”
States that have the death penalty have been forced to find new drugs for use in their protocols since some drug manufacturers have refused to sell their drugs for the purpose of executing inmates.
Because Asay’s execution is scheduled to take place in three weeks, the Florida Supreme Court has expedited the filing process for legal briefs in the case. The last deadline is Monday. The court will then decide whether it will need to hear oral arguments.