Just before he died, Michael Lee Wilson said he could feel his whole body burning as the drug meant to kill him coursed through his veins. He was sentenced to death by the state of Oklahoma for a murder he committed 20 years earlier, in which he and three other men bludgeoned his co-worker with a metal baseball bat. Death penalty opponents point to his final words when they argue that lethal injection drugs are inhumane and can cause gruesome, unimaginable suffering. But a conflicting, little-known reality is that the same drug they often criticize – pentobarbital – is the same one the so-called Death with Dignity movement is trying desperately to access so terminally ill patients can hasten their deaths in what they have characterized as a peaceful and dignified experience. In both situations, pentobarbital has been acquired through compounding pharmacies that aren’t heavily regulated by the Food and Drug Administration. And both situations have resulted in drug-related complications, demonstrating that a clean death is no guarantee even when people are put in charge of their own end. “I don’t think many people who are casual supporters of the Death with Dignity movement are aware that there are these sorts of risks,” says Tamara Tabo, head of the Center for Legal Pedagogy at Thurgood Marshall School of Law at Texas Southern University. The issue is taking on a renewed relevance, with the usage of medically assisted suicide and capital punishment seemingly headed in opposite directions. California recently became the fifth state to allow medically assisted death – behind Oregon, Washington, Vermont and Montana – while 19 states have abolished the death penalty and two Supreme Court justices have suggested it is time to end the practice. Still, while the use of capital punishment in the U.S. has declined, it remains in practice with 24 executions so far this year.

Death with Dignity National Center

Death penalty opponents have shifted their focus from the constitutionality of capital punishment to whether drugs used in executions violate the Constitution's Eighth Amendment ban on “cruel and unusual punishment.” Pentobarbital's manufacturers have made it nearly impossible to access because of their opposition to the death penalty and their unwillingness to have their products associated with it. As a result, attorneys have managed to temporarily suspend executions for many inmates, arguing that the substitute drugs are ineffective or come from questionable sources.

“People of goodwill – whether they support or oppose the death penalty – think that if you’re going to have capital punishment then you need to execute people in the quickest, most painless way possible,” says Robert Dunham, executive director of the Death Penalty Information Center.

Some states have continued to carry out lethal injections using different drugs that have resulted in botched executions, and people who want to die on their own terms where it is legal have had difficulty accessing pentobarbital. Some have used other drug combinations, but advocacy groups aiming to push more states to adopt aid-in-dying laws have avoided drawing attention to both the shortage of pentobarbital and its link to executions.

And while pentobarbital isn’t the only drug used in assisted dying, it has a major advantage: It’s about 10 times cheaper than another drug prescribed often for aid in dying, called secobarbital, which can run into the thousands of dollars for a legal, lethal dose.

When Things Go Wrong

When pentobarbital or secobarbital work as intended, people drink a solution in which the drug has been dissolved and then fall into a coma within five to 10 minutes. Soon the drug depresses the part of the brain that controls respiration, which causes them to stop breathing, generally within 20 to 30 minutes, according to Compassion & Choices, a nonprofit that works to expand aid-in-dying laws.

Barbara Coombs Lee, the organization's president, says any complications are minimal and include "spitting up a little." She acknowledges several people have awakened after trying to kill themselves using medications doctors prescribed.

“It does not mean failure, suffering or torture of any kind,” she says.

But data from annual reports in Washington and Oregon show other complications, while rare, sometimes occur. Those complications include regurgitation and remaining in a coma for days – complications similar to those seen when the drugs are used for lethal injection.

“Everyone has a picture that it’s simple, clean, easy, and you fall asleep,” Tabo says. “That’s unfortunately not always so.”

The most recent report from Oregon shows that, since that state's aid-in-dying law’s enactment in 1997 to the end of 2014, at least 859 people have died a legal medically induced death. At least six people regained consciousness after ingesting medications, and at least 22 regurgitated it. The time between unconsciousness and death ranged from one minute to just over four days.

Courtesy Oregon Public Health Division

In Washington, at least 485 people have legally used medication to hasten their death since the state’s Death with Dignity Act took effect in 2009. At least seven people regurgitated the medication and at least one had a seizure. The longest recorded amount of time between ingesting the medication and death was 41 hours. In 2009, at least two people regained consciousness after ingesting the medication, though there were no reports of this in other years.

State records do not specify which drugs led to complications. Nausea and vomiting are side effects of both secobarbital and pentobarbital, which have also been used in combinations with other drugs, and of phenobarbital, another central nervous system depressant that has been used.

One issue with optimizing the medications is that drugs used for the purpose of killing are difficult to test for effectiveness.

“We don’t know how people metabolize these drugs because you don’t have the scientific research,” Tabo says. “You can’t do clinical trials with drugs you’re trying to end people’s lives with.”

Available data from states suggest that complications during aid-in-dying procedures are far from the norm, just as they are in lethal injections using pentobarbital.

States first turned to lethal injection in the 1980s as a more humane alternative to the electric chair. Today, 1,243 people have been executed using this method.

Pentobarbital has been used since 2010 in 14 states by itself or as the second step in a three-drug execution cocktail, according to the Death Penalty Information Center. Until 2009, most states used a three-drug combination for lethal injections: the anesthetic sodium thiopental; a paralytic agent called pancuronium bromide; and potassium chloride, which stops the heart and causes death. Sodium thiopental has been used on its own, and an anti-anxiety medication called midazolam has been used in conjunction with one or two other drugs, as supplies of pentobarbital dried up when manufacturers more carefully monitored its distribution.

Midazolam was responsible for botched executions that culminated in a Supreme Court case which ultimately upheld its use in capital punishment. In Ohio and Arizona, which used midazolam in a two-drug protocol in 2014, the executions were prolonged, accompanied by the inmates’ gasping.

Pentobarbital hasn’t been without its own controversy, however. In March, officials halted the execution of a Georgia woman because the drug was “cloudy,” which could indicate that it was contaminated or didn’t fully dissolve. In Oklahoma last year, Kenneth Eugene Hogan said he had a metallic taste in his mouth as he was executed with pentobarbital.

Advocates of medically assisted death shun any comparison between capital punishment and what they are trying to achieve. They point out that one is chosen and acted on by an individual, while the other is forced on someone.

“It’s like comparing apples and kumquats,” Lee says. “The voluntary self-administration of aid-in-dying medication changes everything. Injections are not allowed.”

Aid-in-dying laws mandate that people voluntarily drink the solution that includes the drug to show that they were not forced into the act. This differentiates aid in dying from euthanasia, which typically uses an IV and is practiced in parts of Europe.

But aid-in-dying laws don’t specify which drugs to use.

“We specifically didn't put a medication in the laws because we wanted it to be left to the medical professionals to determine what is best,” George Eighmey, vice president for the Death with Dignity National Center, says of states where lawmakers have passed aid-in-dying laws.

Eighmey, who is also a former Oregon lawmaker and someone who facilitated terminally ill patients in using the state's aid-in-dying law, says very few patients regurgitated and that it occurred mainly because they had a blockage and couldn’t swallow. He knows of six who woke up. Some decided to carry out the lethal procedure later.

Others made different choices. One decided to live a bit longer, another wrote poems and another took the extra time he was given to resolve family differences, he says.

“All of them in fact were not in any way harmed by the medication,” Eighmey says. “For those that I talked to, their response to the complications were, ‘Maybe I wasn’t meant to do this now.’”



Courtesy of Gallup

The Consequences of Limiting Execution Drugs

Execution and aid in dying share one inextricable link: Efforts to limit pentobarbital's use in capital punishment have restricted choices for medically assisted death, an act upheld by its supporters as the ultimate expression of autonomy and free will.

It first started when opponents to the death penalty tried to do away with the practice through limiting the overall availability of pentobarbital. They revealed in 2011 that Lundbeck, a Danish pharmaceutical company, was selling pentobarbital to the U.S. and that it was being used used in executions – a practice banned in Europe. Lundbeck had developed pentobarbital for the treatment of seizures caused by epilepsy and did not want it used in capital punishment. The company sold the drug to Illinois-based Akorn Pharmaceuticals later that year. Also in 2011, the European Union placed an export ban on pentobarbital and on sodium thiopental, which had been widely used in capital punishment. Other international drugmakers refuse to send any drugs used for capital punishment to the U.S.

Courtesy of Pew Research Center

Now, Akorn carefully monitors the distribution of pentobarbital, which in lower doses can be used to treat insomnia and is sometimes employed by hospitals as a sedative before surgery. Its customers, typically hospitals, sign an affidavit saying they will not redistribute it, and Akorn handles all distribution directly or through drop-shipments to specific customers via known wholesalers, according to a company spokesperson. Akorn also has announced it will not ship midazolam or hydromorphone directly to prisons, and that it would only work with wholesalers who vow to do the same.

Pentobarbital's limited supply has affected its price. Death with Dignity reports that pentobarbital initially was used for aid in dying in its liquid form and cost about $500 until about 2012, when it rose to between $15,000 and $25,000. Users switched to the powdered form, which costs between $400 and $500, Eighmey reports, though Compassion & Choices says it has sold for $350.

Patients have used a new cocktail or paid $3,000 to $5,000 for a legal dose of secobarbital, according to Death with Dignity. “The fact that there is capital punishment has made aid in dying more expensive,” Lee says.

Proponents of aid in dying haven’t drawn attention to the drug’s inaccessibility and its ties to the death penalty, but they have been quietly speaking with manufacturers behind the scenes to try to make it more widely available for their purposes.

“The manufacturer is not open to considering it,” Lee says. “We tell them it’s a compassionate use, that we think the distribution could be made safe.” Compassion & Choices would not specify which manufacturer it was speaking about, but Akorn is the only company that makes and markets pentobarbital that is FDA-approved for use in humans. Death with Dignity says it is reaching out to Akorn but has not met with anyone from the company and declined to share the names of other manufacturers so as not to breach confidentiality. Asked about whether the pharmaceutical company supports the use of pentobarbital in medically assisted deaths, an Akorn representative said in an email, “We only support the use of our products for their labeled indications.”

Pentobarbital’s limited availability led to variations in how executions are carried out and secrecy about how drugs are obtained. As a result of the shortage, some states have reverted to older methods of execution. Tennessee allows the electric chair, Utah allows a firing squad to be used when drugs can’t be obtained and Oklahoma allows for nitrogen gas asphyxiation, according to the Death Penalty Information Center.

Drugs used for lethal injection and for assisted death are typically accessed from compounding pharmacies, where professionals make their own copies of drugs but mostly combine, mix or alter existing drugs, typically to meet individual patients' needs.

“This was normal pharmacy practice 60 years ago,” Lee says. “It isn’t done that much anymore. Usually drugs come pre-prepared, pre-encapsulated.”

But while compounding pharmacies are endorsed by advocates of assisted death, death penalty opponents’ attitude toward them is more hesitant, particularly because some states secretly obtain the drug without publicly releasing where it came from. Sources other than compounding pharmacies are possible. Virginia’s correctional agency received pentobarbital from Texas recently, and lawyers who were defending the man it was meant for, Alfredo Prieto, accused Texas of compounding or producing the drug within its own department. Prieto was executed Oct. 1.

“You have these extraordinary efforts of secrecy that states with capital punishment are engaging in,” Dunham says. “They can’t get it from reputable sources who routinely make pharmaceuticals.”

Eighmey says Death with Dignity hasn’t been as aggressive about accessing pentobarbital as it was nine months ago, largely because some people have instead used a drug cocktail for aid in dying that was developed in the Netherlands: phenobarbital mixed with morphine sulfate, chloral hydrate and 200-proof ethanol. The entire beverage, which Eighmey says has been used 45 times this year, is about 4 ounces in total volume and costs between $400 and $500. Eighmey confirmed that pentobarbital’s shortage spurred the mixture, and said a report would follow detailing the cocktail’s results.



Despite isolated reports of complications, advocates for medically assisted dying tend to advance a narrative of a peaceful death, saying the families of many Americans who have been able to access drugs take comfort in the option to choose a legal, medically induced death.

The documentary "How to Die in Oregon" contains some of these deaths. Roger Sagner, who appears at the beginning of the documentary, thanks voters for passing the law before he kills himself.

In the film, he is sitting in bed, waiting to drink the drug cocktail that he knows will kill him. A woman asks him if he wants to change his mind, but he is resolved.

“What will this drug do?” a woman asks him.

“It will kill me and make me happy,” he says.

He is told a couple of times that the drink tastes terrible. The people around him don’t specify whether the drug is secobarbital or pentobarbital, but they hand him a soda to act as a chaser.