The court's majority said Asay had not shown that the introduction of the drug etomidate into the execution process put him at risk of suffering in violation 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 process. It would be the first time etomidate, a sedative, has been used in an execution.
In its decision, the Supreme Court upheld a ruling by a Duval County circuit judge who held a hearing on the lethal-injection drug issue.
“Based on the testimony heard during the evidentiary hearing and the record before this (Supreme) Court, Asay has not demonstrated that he is at substantial risk of serious harm,” the majority opinion said. “Indeed, the record before this court demonstrates that Asay is at a small risk of mild to moderate pain.”
The majority opinion by Chief Justice Jorge Labarga and justices Peggy Quince, Ricky Polston and Alan Lawson, also said Asay had not “identified a known and available alternative method of execution that entails a significantly less severe risk of pain.”
Justices R. Fred Lewis and Charles Canady concurred with the majority opinion but did not fully sign on to it.
Justice Barbara Pariente dissented on a series of grounds, including that Asay was wrongly denied access to documents about the new lethal-injection process. Pariente said the Florida Department of Corrections delayed providing information and has not provided some details, such as the reasons for adopting the new process and the identity of the manufacturer of etomidate.
“Rather than giving Asay time to procure the documents needed to challenge this never-before-used protocol, the state now contends that time is of the essence in meeting the execution deadline of August 24, 2017, chosen by Governor (Rick) Scott,” Pariente wrote. “Even more troublesome, the state has relentlessly fought Asay's attempts to obtain records relating to the new protocol, causing even further delay. One would assume that the administration of the ultimate penalty of death would compel the state to proceed transparently, rather than under the veil of executive privilege.”
Asay, 53, who was convicted in the 1987 killings of Robert Lee Booker and Robert McDowell in downtown Jacksonville, is scheduled to be the first inmate executed in Florida since Oscar Ray Bolin on Jan. 7, 2016.
Less than a week after the Bolin execution, the U.S. Supreme Court ruled 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 wide-ranging litigation in Florida courts and moves by the Legislature to revamp the sentencing process.
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. Scott last month rescheduled Asay's execution for Aug. 24.
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 prisoners before injecting them with a paralytic and then a drug used to stop prisoners' hearts.
Along with the lethal-injection issue, Asay's lawyers raised a series of other issues in seeking to halt 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. But the Supreme Court majority flatly rejected the arguments.
Rejecting arguments about a new lethal-injection procedure, the Florida Supreme Court on Monday refused to block the scheduled Aug. 24 execution of Death Row inmate Mark James Asay.