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In court, attorneys for Asay had questioned the use of the drug, noting it has apparently caused pain and involuntary writhing for some patients.

Florida Uses New Anesthetic in First-Ever Execution Protocol

With the anesthetic midazolam increasingly difficult to obtain, Florida executed Mark Asay, a 53-year-old inmate convicted of two killings, with a three-drug lethal injection protocol never before used in the U.S.

In place of midazolam, on Aug. 24 the state used etomidate, a decades-old anesthetic, to render Asay unconscious, then injected him with rucoronium bromide, a muscle relaxant, to paralyze his lungs, followed by potassium acetate, which stops the heart.

The makers of each sedative (Janssen Pharmaceuticals, a division of Johnson & Johnson, for etomidate and Pfizer for midazolam) say they do not condone its use in executions and have tightened up distribution to make it harder to obtain for that purpose.

The on-again, off-again availability of execution drugs sometimes affects the timing of executions or leads to changes in execution protocols. Arkansas, for example, accelerated some execution dates this spring in order to use bulk-purchased midazolam before it reached its expiration date. The state more recently said it had found a source for 40 vials of the drug. Mississippi authorities, facing appeals of the state’s execution protocol, recently told a court it has obtained new supplies of execution drugs, and is defending a new state law shielding the supplier’s identity.

Asay’s execution was also the first time that Florida or any other state intentionally used potassium acetate, although the drug was used mistakenly in a 2015 execution in Oklahoma.

In court, attorneys for Asay had questioned the use of etomidate, noting it has apparently caused pain and involuntary writhing for some patients. But the Florida Supreme Court cleared its use in lethal-injection executions after hearing testimony from four experts that Asay would face only “a small risk” of mild to moderate pain. One member of the court dissented, saying Asay would be the “proverbial guinea pig” for the new drug, and voiced the view that its use would violate the Eighth Amendment’s bar against cruel and unusual punishment. In 2015, in Glossip v. Gross, the U.S. Supreme Court rejected three Oklahoma death row inmates’ challenge to the use of midazolam.

Asay’s execution was the first in Florida in over 18 months, after the U.S. Supreme Court in January 2016 decided by an 8-1 margin in Hurst v. Florida that the state’s process for sentencing in capital cases was unconstitutional, because it allowed judges to reject a jury’s recommendation on whether the death penalty should be imposed. The high court held that the state’s system contravened the Sixth Amendment’s guarantee of a right to jury trial, because the jury was not allowed to make all decisions on capital punishment.

The Asay case also broke with tradition in another way: He was the first white defendant in Florida sentenced to death for killing a black victim. Convicted of shooting a black man to death in 1987, Asay made racist comments at the time, according to prosecutors. He was also convicted of a second killing earlier that year.

According to the Death Penalty Information Center, since Florida reinstated its death penalty in 1976, at least 20 black inmates received the death penalty for killing white victims. During that period, Florida executed 92 inmates. Asay’s was the 24th execution approved by Gov. Rick Scott (R), who has approved more executions than any other governor in Florida history.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, (Middle Street Publishing, 2017), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014). He regularly contributes to The Huffington PostNew York Daily News, and Prison Legal News. He can be found online at ChristopherZoukis.comPrisonEducation.com and Prisonerresource.com.

About Christopher Zoukis

Christopher Zoukis, a writer currently incarcerated at FCC Petersburg (Medium), is an impassioned and active prison education advocate, a legal commentator, and a prolific writer of books, book reviews, and prison law articles. While living in federal prison at various security levels, retaliations for his activism have earned him long stretches in solitary, or "the hole." While in prison, he has earned numerous academic, legal, and ministerial credentials. Christopher is very knowledgeable about prison-related legal issues, prison policy, federal regulations, and case law. He is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons (Middle Street Publishing, 2017), College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014) and thePrison Education Guide (Prison Legal News Publishing, 2016). The Federal Prison Handbook is an IndieReader Discovery Awards winner. A regularly featured contributing writer for The Huffington Post and Prison Legal News, the nation's most prominent prison law publication, Christopher has enjoyed significant media exposure through appearances with the Wall Street Journal's Market Watch, Vice.com, Salon.com, In These Times, The Jeff McArthur Show, The Simi Sara Show,TheCommentary.ca, 88.9 WERS' award-winning "You Are Here" radio segment, and The Examiner. Other articles and book reviews appeared in The New York Journal of Books, the Kansas City Star, The Sacramento Bee, Blog Critics, Midwest Book Review, Basil and Spice, Seattle Post-Intelligencer, SF Gate, AND Magazine, Truth-Out.org, Rain Taxi, and the Education Behind Bars Newsletter, with content syndicated by the Associated Press, Google News, and Yahoo News. He established three websites: PrisonEducation.com, PrisonerResource.com, and ChristopherZoukis.com, and was a former editor of the Education Behind Bars Newsletter. In 2011, his fiction won two PEN American Center Prison Writing Awards for a screenplay and a short story. He taught a popular course on writing and publishing to over 100 fellow prisoners. Today Christopher is successfully working on a Bachelor's Degree in Interdisciplinary Studies (Business/Law) from Adams State University. Following his 2016 graduation, he plans on attending Adams State University's MBA program. He regularly advises fellow prisoners and prison consultants about legal issues and federal regulations governing the Federal Bureau of Prisons operations. Upon release he plans to attend law school and become a federal criminal defense attorney. Christopher will not allow incarceration to waste his years or halt the progress of his life. He began his prison terms as a confused kid who made poor decisions but is today determined to create a better life. "We can't let the past define us," he says. "We have to do something today to make tomorrow what we want it to be."

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