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.

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