A February 4, 2019 article in the criminal justice newsletter, The Appeal, features the case of Demetrius Howard, a California prisoner sentenced to death for a crime in which he didn’t kill anyone. Howard was sentenced to death in 1995 for his participation in a robbery in which another man, Mitchell Funches, shot and killed Sherry Collins. Howard was never accused of firing a shot and he has consistently maintained that he neither expected nor intended that anyone would be killed. But under California’s felony murder law, he was eligible for the death penalty because he participated in the robbery. In a letter to The Appeal, Howard wrote, “I am no saint or some angel. I’ve made my share of wrongs, but I haven’t killed no one [or] told anyone to kill someone.”

California is one of twenty states that allow the execution of defendants who neither killed nor intended that a killing take place. The controversial practice has attracted the most attention in the state of Texas, where at least six prisoners have been executed despite undisputed evidence that they were not involved in the killing itself. In Howard’s case, the man who actually shot Collins, Mitchell Funches, received a sentence of life without parole when the jury in his trial could not reach a unanimous decision on whether to sentence him to life or death. In 2018, California passed a law that narrowed the scope of the felony murder law, making defendants liable for murder only if they were the killer, solicited the killer, or acted with reckless indifference to human life. The change is retroactive, but does not apply to Howard because the jury found that he had “acted with reckless indifference to human life” before it sentenced him to death.

Howard’s death sentence is also a by-product of outlier death-penalty practices in San Bernardino County. San Bernardino is one of five Southern California counties that imposed more death sentences between 2010 and 2015 than 99.5% of U.S. counties, earning the region the nickname “the new death belt.” In 1993, shortly before Howard was sentenced to death, there were 10 active capital trials in the county, and then-District Attorney Dennis Kottmeier said he was considering seeking it in two other cases. At the time, Kottmeier told the San Bernardino County Sun, “That’s higher than I’ve ever seen it. At any given time in the past the number pending seemed to be about six.” He attributed the high number of capital cases to a high rate of violent crime, as well as state laws passed in 1990 and 1993 that expanded the list of death-eligible crimes. The California Attorney General’s 2017 report, Homicide in California, shows that despite its disproportionate pursuit of capital punishment, San Bernardino’s higher-than-average murder rate has remained the same from 1997 to 2017, while murder rates have declined statewide and in many of California counties during that period.

(Maura Ewing, ‘I’VE MADE MY SHARE OF WRONGS, BUT I HAVEN’T KILLED NO ONE’, The Appeal, February 4, 2019.) See Those Executed Who Did Not Directly Kill the Victim and Arbitrariness.

As execution drugs have become more difficult for states to lawfully obtain and problematic executions have become more frequent, states have expanded their efforts to shield their execution-related activities from public scrutiny. In the latest episode of Discussions with DPIC, Robin Konrad, former DPIC Director of Research and Special Projects, joins Executive Director Robert Dunham and current Director of Research and Special Projects Ngozi Ndulue to discuss DPIC’s November 2018 report, Behind the Curtain: Secrecy and the Death Penalty in the United States. Konrad, the lead author of the report, is now an Assistant Professor of Lawyering Skills at Howard University School of Law. The discussion covers the recent expansion of secrecy in the use of the death penalty, the reasons for the unavailability of lethal-injection drugs, and the problems that have resulted from execution secrecy.

Secrecy policies are ubiquitous in the states that are currently attempting to carry out executions, Konrad explains. “Everybody has some type of secrecy provision” related to the sources of execution drugs or the way executions are carried out, Konrad says. Secrecy provisions conceal the sources of the drugs states obtain and the identities and qualifications of the execution team, and restrict the portions of the execution witnesses are permitted to see and hear. The podcast discusses these issues and questionable measures states have taken to hide potential problems, including Florida and Oklahoma taping down prisoners’ hands so witness cannot see them clench their fists in reaction to the drugs, and Virginia and Nebraska closing curtains to conceal how long the IV insertion process takes or the moments just before and after the prisoners’ death.

The episode also includes a discussion of the consequences of secrecy, including illegal actions that have been discovered only by accident or through investigative journalism. “We’ve seen states acting in a way that is often illegal, where we’ve seen states purchasing drugs overseas in an illegal manner from companies or individuals that are less than reputable. We've seen the prison officials driving money in the middle of the night across state lines to exchange money for drugs and drugs for money. We have seen the states using pharmacies that have had numerous violations. One pharmacy that was used by Missouri had … 1800 violations of state and federal law,” Konrad says. The podcast concludes with a discussion of the ways in which secrecy undermines democratic principles of open government and hides problematic state practices. “When we’re looking at [a] government ... for the people, by the people, the people should know what is going on and states shouldn't be hiding information about the most serious punishment that they carry out against their citizens,” Konrad says. “I don’t see how in any principled system of justice, you can sustain a system that basically is grounded in secrecy, grounded in hiding what’s going on from the public. You have to be open, you have to be honest, you have to be transparent, you have to be trustworthy,” adds Dunham.

(Discussions with DPIC, Behind the Curtain: Secrecy and the Death Penalty in the United States, February 8, 2019.) Read the report, Behind the Curtain: Secrecy and the Death Penalty in the United States. See Podcasts and Secrecy.