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Florida Supreme Court Approves Use of Hypnotic Drug for Executions

On August 14, 2017, the Florida Supreme Court approved a new lethal injection drug protocol that includes the hypnotic drug etomidate. The introduction of etomidate into the state’s execution protocol is the latest move to preserve the death penalty despite drug manufacturers’ efforts to prohibit the use of their products in capital punishment.

Following the denial of his third motion for post-conviction relief, death-sentenced prisoner Mark James Asay appealed to the Florida Supreme Court. His motion alleged four claims related to the denial of access to public records, unconstitutionality of a statute concerning the signing of a death warrant, denial of due process in how his execution date was reset and a challenge to the lethal injection drug protocol.

Asay argued the adoption of etomidate as the first drug in the protocol “places him at substantial risk of serious harm in violation of the Eighth Amendment.” A circuit court, after an evidentiary hearing, found Asay had failed to establish a certain or very likely risk of sufficiently imminent danger, or a proposed alternative that was readily available. The state Supreme Court held the evidence supported that finding.

In reaching its conclusion, the Court noted that when intravenously injected, “etomidate produces hypnosis characterized by a rapid onset of action, usually within one minute.” The drug has a “relatively brief” duration, “usually three to five minutes.” Its most frequent adverse reactions are “transient venous pain on injection and transient skeletal movements, including myoclonus [seizure-like movements].”

A defense expert, Dr. Mark Heath, testified that most patients do not experience pain. The Supreme Court found Asay was “at a small risk of mild to moderate pain.” It cited precedent that held “some risk of pain is inherent in any method of execution,” and “the constitution does not require the avoidance of all risk of pain.”

As to Asay’s public records claim, the Court found he had failed to show that the requested records would entitle him to relief on claims related to those records. His other claims similarly were found to be without merit. Accordingly, the circuit court’s order was affirmed.

Supreme Court Justice Barbara Pariente dissented, “because the jury’s 9-3 recommendations for death render Asay’s sentences of death constitutionally unreliable pursuant to Florida’s independent right to trial by jury under article I, section 22, of the Florida Constitution, as well as the right to trial by jury under the Sixth Amendment to the United States Constitution, and the right against cruel and unusual punishment under the Eighth Amendment to the United States Constitution.” See: Asay v. State, 224 So.3d 695 (Fla. 2017). 


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Related legal case

Asay v. State of Florida