Mark James Asay was executed in Florida late last month, the first execution in the state since January 2016, when the U.S. Supreme Court’s ruling in Hurst v. Florida put its death penalty scheme in turmoil. Asay was sentenced to death for killing Robert Booker, a black man, and Robert McDowell, who was Latino, in 1987.
It was the first time Florida has executed a white man for killing a black victim.
Asay’s case was controversial for several reasons. He was sentenced to death in 1988 by a 9-3 vote of the jury (the state changed the law this year to require a unanimous death verdict); the state was using a new lethal injection procedure, in which the drug etomidate was substituted for midazolam, in a three-drug cocktail that also included rocuronium bromide and potassium acetate; Asay had spent 20 years on death row without a lawyer, another violation of state law; and the state Supreme Court admitted that for years, it had wrongly described both murder victims as black, when one was not.
The Tallahassee Democrat reports that it took Asay 11 minutes to die, and that the “lack of complications with the untested lethal-injection procedure used in Asay’s execution may have eased concerns about Florida’s new three-drug protocol.”
It did not ease the concerns of pharmaceutical giant Johnson & Johnson, however. Although the company no longer manufactures etomidate, which was discovered by Janssen, one of its subsidiaries, decades ago, it issued a statement condemning its use in Asay’s execution.
“We do not condone the use of our medicines in lethal injections for capital punishment. Janssen discovers and develops medical innovations to save and enhance lives. We do not support the use of our medicines for indications that have not been approved by regulatory authorities,” the statement read.
The company’s protest isn’t likely to deter Florida or any other state from using the drug, however. According to pharmaforum, etomidate is “now off-patent, several generic drug makers manufacture the drug, and J&J seems unable to intervene directly to stop its use on death row.”
Also in Florida last week, the state Supreme Court ruled in favor of Gov. Rick Scott in a lawsuit Oreange-Osceola State Attorney Aramis Ayala had filed, charging that Scott didn’t have the authority to transfer 29 murder cases from her office to a pro-death penalty state attorney’s office because of her refusal to seek the death penalty. As a result, the Orlando Sentinel reports that a day after the ruling, Ayala “walked back her ban on pursuing the death penalty, saying a panel of seven assistant state attorneys will review all future first-degree murder cases and seek capital punishment when appropriate.”