Just when we thought that executions in Florida would remain on hold for a while, Governor Scott unexpectedly rescheduled Mark Asay's execution, and he is now scheduled to be executed on August 24, 2017.
Those who regularly read my blog know that Governor Scott signed my death warrant on November 30, 2015 and I was scheduled to be executed on February 11, 2016. While I was on death watch in the segregated housing area immediately next to the execution chamber, they killed Oscar Bolin on January 6, 2016 (please read: "Execution Day - Involuntary Witness to State Sanctioned Murder") and the very next morning Governor Scott signed a death warrant on Mark Asay, commonly known as "Catfish".
But the following week the United States Supreme Court issued it's decision in Hurst v Florida which by almost unanimous vote the court recognized that the way people were being sentenced to death in Florida (since 1974) was illegal, effectively rendering these death sentences unconstitutional.
A week before my scheduled execution the Florida Supreme Court granted a "stay of execution" until they could decide whether that USSC "Hurst" decision required my death sentences to be thrown out. Subsequently, the following month the Florida Supreme Court also granted Mark Asay a full stay of execution and since early 2016 there have been no further scheduled executions.
But just a few days before Christmas (2016) the Florida Supreme Court issued a decision in Asay's case that unanimously recognized that in light of the US Supreme Court ruling in Hurst v Florida, there is no question that (like me) Asay was illegally condemned to death by a non-unanimous jury (his jury vote was 9-3).
However, once again reflecting how the politics of death override principles of moral restraint, by narrow majority the Fl Supreme Court ruled in Asay v State that they would only throw out the illegally imposed death sentences (retroactive application) of those whose sentences were filed after June 2002 as to retroactively apply Hurst to all death sentences would be too much of a burden on the state.
So, despite the unequivocal recognition that Asay (and about 190 others) were illegally sentenced to death, the Florida Supreme Court said to go ahead and kill them anyway.
This absurd "partial retro activity" rule is now being challenged in my own case and many others as no court has ever before recognized a substantial change of constitutional law as only partially retroactive - it is either fully retroactive to all cases, or none.
But like a relatively few others, Mark Asay decided not to let his lawyers challenge this "partial retro activity" rule as he doesn't want his death sentence reduced to "life" in prison. The truth is that there are a number on Florida's death row who prefer to be under a sentence of death than to "life" in prison with no realistic hope to ever being set free again. The way they see it, they're going to die in prison anyway so why delay the inevitable? Growing old in prison is not an easy way to go...as you grow older, you become less able to defend yourself from the younger predatory prisoners and your existence often becomes a living hell. So, if you're going to die anyway, why not force the state to kill you instead of slowly rotting away?
Myself, despite spending way over three decades on death row and facing execution several times, somehow I do still hold on to the hope that the courts will one day do the right thing and exonerate and release me. I must admit that at 57 years old, it's becoming harder to see that rainbow in the distant horizon.
And so yesterday afternoon (July 3, 2017) when the lieutenant came on the floor and took Asay away to death watch, for a while there I wondered whether they'd come back and get me to. They always pull only one at a time when you're execution date is scheduled, so it was very possible that Governor Scott, who is running for the United States Senate now, said to hell with the courts and went ahead and rescheduled both me and Asay.
But they didn't come back and get me. That doesn't mean that they won't as the governor certainly could, as the Florida Supreme Court formally lifted my stay of execution - but unlike Asay, I'm allowing my lawyers to pursue legal challenges to that "partial retro activity" rule, so it would seem that the governor should not attempt to reschedule my own execution until that legal issue is resolved.
Even though Asay has made that choice not to allow his lawyers to pursue a similar challenge in his own case, it is still very troubling that Governor Scott made the choice of wanting to carry out his execution.
If Florida proceeds with Asay's execution, he will be the first person to be put to death despite the Supreme Court's recognition that he was illegally condemned by a non-unanimous jury vote. It's one thing to carry out a legally imposed death sentence, but another thing altogether to put a person to death who you know was illegally sentenced to death - who under current law absolutely cannot be put to death. But for no other reason but that the court decided to create a time limitation to retro active application, Florida will go ahead and try to kill him anyway.
Even more troubling is that those who would allow Asay's execution to be carried out next month knew that the pending challenges to this politically motivated "partial retro activity" rule will most likely be successful, recognizing that all of those sentenced to death by a less than unanimous jury vote are entitled to have that death sentence thrown out.
Is this really who we are as a society? Already the United States is the only Western country in the world that continues to allow for the death penalty and we stand in the company of North Korea, Iran and China when it comes to this thirst for putting people to death under the pretense of administering justice.
But Florida is now crossing another line altogether - now Florida is proceeding to carry out executions that they know are illegal. There is absolutely no question that in light of recent Supreme Court decisions the death sentence imposed on Mark Asay by non-unanimous jury vote is illegal.
Does the ends justify the means? many have long argued that it's a slippery slope from administering justice to state sanctioned murder. As Florida crosses this line they cannot come back from, I'd venture to say that as a society Florida has now slid down that slippery slope and the scheduled execution of Mark Asay is nothing less than a cold-blooded act of state sanctioned murder.