Using a new drug, Florida executes a death-row inmate for the first time in a year-and-a-half – Washington Post

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The Florida State Prison in Raiford, Fla., where executions are carried out. (Matt McClain/The Washington Post)

Florida on Thursday evening carried out its first execution since the U.S. Supreme Court struck down its death penalty more than 18 months ago, ending a period of remarkable uncertainty in one of the dwindling number of states still regularly carrying out death sentences.

The lethal injection came three decades after a double-killing officials say was fueled by racial hatred, and is believed to be the first time in the modern era that Florida executed a white person convicted and sentenced to death for killing a black person.

In another milestone, Florida executed convicted killer Mark Asay with a drug never before used in a lethal injection.

Asay, who was convicted in the 1988 of killing Robert Lee Booker and Robert McDowell the previous year, was pronounced dead at 6:22 p.m. Thursday, according to the Associated Press. The AP reported that about a minute after the first drug was administered, his feet jerked and his mouth opened, and within a minute or two he was motionless.

In court documents, state officials say Asay shot and killed both men after he spent a night out drinking, using racial slurs to describe one of them. Court documents also say Asay’s cellmate testified that Asay admitted to shooting the men, used a racial slur and had white power and swastika tattoos.

Attorneys for Asay appealed to the U.S. Supreme Court, arguing that a key fact about the case has been misstated, but the justices on Thursday afternoon rejected their request for a stay.

Asay’s attorneys say that during his trial, “the prosecution’s theory of the case was that the victims were killed because of racial animus toward blacks.”

When the Florida Supreme Court in 1991 denied Asay’s appeal, the court issued an opinion incorrectly identifying McDowell, one of the victims, as a black man. However, Asay’s attorneys note, this was incorrect, which the state Supreme Court acknowledged in another opinion earlier this month, stating that McDowell — who was also known as Renee Torres — was identified as white and Hispanic. In that opinion, the Florida Supreme Court again denied Asay’s appeal.

Florida death row inmate Mark Asay. (Florida Department of Corrections/Reuters)

Asay’s attorneys say the top Florida court did not consider “the central role the victim’s race had played in the case,” and they asked the U.S. Supreme Court for a stay of execution to consider the issue.

On Thursday afternoon, a little more than two hours before Asay’s scheduled execution, the justices released an order denying the request without explanation.

Florida officials had urged the court not to stay the execution, saying that despite questions regarding McDowell’s race, “there is no dispute about the race of the first victim or Asay’s racially charged statements made during the murder of that first victim.”

According to a filing from the office of Pam Bondi, the Florida attorney general, Asay used a racial slur to refer to Booker before and after killing him. Bondi’s office also noted that “regardless of his motivation, Asay murdered two different people in separate incidents that night.”

Asay told News4Jax, a North Florida news outlet, that he shot McDowell while “having a meltdown” but denied killing Booker. He also said he is not a white supremacist and only got the tattoos to blend in while incarcerated in Texas.

The execution on Thursday marked an end to an unusually lengthy hiatus in Florida, which remains one of the country’s last, most reliable bastions of capital punishment even as other states nationwide have shifted away from the death penalty.

Since the U.S. Supreme Court reinstated the death penalty in 1976, Florida has executed 93 inmates including Asay, trailing only three states — Texas, Virginia and Oklahoma — over that span, according to the Death Penalty Information Center, a Washington-based nonprofit. In recent years, as some states have scrapped the death penalty or halted executions due to legal or logistical issues, Florida has been among the exceptions. With Asay’s execution, Florida joins Texas as the only two states to have executed a person during each of the last 10 years.

During the modern era, Florida had executed 56 white death-row inmates before Asay, and none had been executed for killing any black victims, said Robert Dunham, executive director of the Death Penalty Information Center.

Florida’s death penalty has been in limbo since January 2016, when the U.S. Supreme Court struck down its statute in the case Hurst v. Florida. The justices said Florida’s sentencing scheme gave judges, not juries, too much power.

That prompted a series of whipsawing legal and legislative actions: Florida lawmakers hurried to rewrite their death penalty statute, which was signed into law by the governor last year and then promptly struck down again by the state Supreme Court because it did not require juries to be unanimous about sentences. This led to another legislative fix, which was signed into law earlier this year.

The Hurst ruling in January 2016 also threw into doubt the status of scores of death sentences in a state with the country’s second-largest death row. In a ruling last December, the Florida Supreme Court said the Hurst case could apply retroactively to certain cases in the state, potentially clearing the way for as many as 200 death-row inmates to be able to apply for new sentences due to the Hurst decision.

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