The state of Florida is poised to execute the first person in more than a year and a half this Thursday, August 24.
Mark Asay was convicted in 1988 of murdering two black people in Jacksonville in what the courts determined were racially motivated crimes. If his execution goes ahead as scheduled at 6 p.m. Thursday, it will be the first white person put to death for killing a black person in the state of Florida.
So far, the Florida Supreme Court has upheld the upcoming execution amidst ongoing questions and legal challenges concerning the new and untested drugs that will be used for the lethal injection.
Merely four days after Asay's death warrant was originally signed, on Jan. 8, 2016, the U.S. Supreme Court ruled that Florida’s practice of allowing judges to have the final say in death sentences was unconstitutional. The Legislature tried to redress the issues raised by this decision, but the state Supreme Court ruled the new process unconstitutional again, on the basis that Florida allowed non-unanimous juries to send someone to Death Row. Only unanimous juries have that power, ruled the court, not a simple majority or even 10 of 12 jurors.
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The Florida Legislature passed new sentencing rules during its 2017 legislative session, effectively bringing back the death penalty in the state.
Because of all these changes, defense lawyers have questioned the constitutionality of allowing executions to move forward in cases where a death sentence was handed down under the old, now unconstitutional procedure.
A Florida Supreme Court decision in Mark Asay’s case and a companion case of John Mosley, set out a precedent that has led to half the people on Death Row—around 150—getting the opportunity to be re-sentenced.
So far, cases that were finalized after June 2002—the date of another key Supreme Court case used to write the Mosley and Asay decisions—and were sentenced without a unanimous jury have been granted new sentencing trials. Those before 2002 or whose juries handed down the death penalty unanimously have not had that opportunity.
Asay did not get a chance at a new sentence because his case was decided before 2002. So on July, 3, Gov. Rick Scott reset his execution date.
While all of this was being litigated for more than a year, Florida’s stockpile of a key lethal injection drug expired.
The state could not get its hands on Midazolam, a drug used to render the inmate unconscious as the first step in a three-drug protocol for executions. The Florida Department of Corrections decided to replace it with Etomidate, a drug that has never been used before in a lethal injection execution in the United States.