Florida is scheduled to end its 19-month execution hiatus on Thursday when it will kill a man using an untested drug that experts say is likely to cause pain.
Mark James Asay, 53, will be the first person killed in Florida, a state with one of the highest uses of capital punishment, since the U.S. Supreme Court put the state’s death penalty on hold in January 2016. The anesthesia the Department of Corrections plans to use as part of a three-drug cocktail, etomidate, has never been used in an execution.
Florida revamped its capital punishment law last year after the Supreme Court order and subsequent state court decisions have allowed Asay’s execution to resume. In an opinion earlier this year, the state supreme court lifted a stay, finding that it’s impossible to eliminate all potential pain when carrying out capital punishment, which is constitutional in the United States.
In a dissenting opinion, Justice Barbara Pariente wrote that Asay was being treated as “the proverbial guinea pig” for the drug and that using it would violate the constitutional protection against cruel and unusual punishment. Asay’s attorney agreed, telling Reuters that etomidate could cause him pain and involuntary body movements that would make it hard for the staff administering the execution “to know when the guy is unconscious.”
Jen Moreno, a lethal injection expert, said this week that there are “outstanding questions” about whether etomidate will “do what it needs to do during an execution.”
Thursday’s execution will also be Florida’s first time using another drug in the cocktail, potassium acetate, which is used to stop the inmate’s heart. Oklahoma used the drug once in 2015 but it has not been used elsewhere.
Like other states, Florida has had to scramble to come up with a new lethal injection drug after manufacturers of the commonly-used drugs took a stance against the death penalty and, in recent years, stopped allowing their products to be used for executions. When Pfizer, one of the country’s largest pharmaceutical companies, announced in May 2016 it wouldn’t distribute its drugs to be used in lethal injections, it joined dozens of other American and European manufacturers who had already adopted restrictions. Pfizer also said last year it would no longer manufacturer its sedative midazolam, which had previously been part of Florida’s cocktail.
The manufacturer that first made etomidate, Janssen, stopped producing the drug last year. “We do not condone the use of our medicines in lethal injections for capital punishment,” the company, which is now a division of Johnson & Johnson, told the Washington Post. But the drug is off-patent and is available in generic forms from several other pharmaceutical companies. Florida has not revealed which manufacturer supplied the drug that will be used, and the state can legally keep the supplier secret.
Asay, a former member of a prison white supremacist gang, was found guilty in 1988 of two racially-motivated murders committed the year prior. He will also be the first white man executed for killing a black man in Florida since the state reinstated the death penalty in 1979. In the decades since, the state has executed 92 people.
A spokesperson for the Florida Department of Corrections, Michelle Glady, told the Post that state will be following the law and carrying out the court’s sentence, regardless of concerns.
“This is the department’s most solemn duty and the foremost objective with the lethal injection procedure is a humane and dignified process,” she said.