Justice O'CONNOR delivered the opinion of the Court. The Tison gang killed them near Pagosa Springs, took their van and returned to Arizona. Ibid. A narrow focus on the question of whether or not a given defendant "intended to kill," however, is a highly unsatisfactory means of definitively distinguishing the most culpable and dangerous of murderers. The Arizona Supreme Court then held, by a vote of 3-2, that this finding was sufficient to establish that petitioners "intended" (within the meaning of Enmund ) to kill the Lyons family, and affirmed the death sentences. Member of infamous Tison gang scheduled for execution | AP News He stood by and watched the killing, making no effort to assist the victims before, during, or after the shooting. The Arizona Supreme Court, however, upheld the "pecuniary gain" and "heinousness" aggravating circumstances and the death sentences. It therefore remains open to the state courts to consider whether Arizona's aggravating factors were interpreted and applied so broadly as to violate the Constitution. On July 30, 1978, his sons Ricky, Raymond Ray, and Donald Donny smuggled shotguns into the prison and helped Gary. 3 Pa. Laws 1794, ch. The importance of distinguishing between these different choices is rooted in our belief in the "freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil." denied, 469 U.S. 1066, 105 S.Ct. Raymond recalled being at the Mazda filling the water jug "when we started hearing the shots." Petitioner did nothing to interfere. 2861, 53 L.Ed.2d 982 (1977), but instead offers two reasons in support of its view. Ibid. . The evidence does demonstrate beyond a reasonable doubt, however, that petitioner intended to kill. See Amnesty International, supra, at 192 (listing death row totals by State as of Oct. 1986). Primary Menu . 240, 243, 96 L.Ed. In other words, the Court must demonstrate that major participation in a felony with a state of mind of reckless indifference to human life deserves the same punishment as intending to commit a murder or actually committing a murder. The ancient concept of malice aforethought was an early attempt to focus on mental state in order to distinguish those who deserved death from those who through "Benefit of . 233-234. The Court does not attempt to conduct a proportionality review of the kind performed in past cases raising a proportionality question, e.g., Solem v. Helm, 463 U.S. 277, 103 S.Ct. The Court found the fact that only 3 of 739 death row inmates had been sentenced to death absent an intent to kill, physical presence, or direct participation in the fatal assault persuasive evidence that American juries considered the death sentence disproportional to felony murder simpliciter. 6-2-101, 6-2-102(h)(iv) (1983). 288 (1952). Petitioners' presence at the scene of the murders, and their participation in flagging down the vehicle, and robbing and guarding the family, indicate nothing whatsoever about their subjective appreciation that their father and his friend would suddenly decide to kill the family. . Petitioner played an active part in preparing the breakout, including obtaining a getaway car and various weapons. . It is important first to note that such a defendant has not committed an act for which he or she could be sentenced to death. that the threat that the death penalty will be imposed for murder will measurably deter one who does not kill and has no intention or purpose that life will be taken. It is important to note how attenuated was Enmund's responsibility for the deaths of the victims in that case"), cert. The dissent objects to our classification of California among the States whose statutes authorize capital punishment for felony murder simpliciter on the ground that the California Supreme Court in Carlos v. Superior Court, 35 Cal.3d 131, 197 Cal.Rptr. The State then individually tried each of the petitioners for capital murder of the four victims as well as for the associated crimes of armed robbery, kidnaping, and car theft. denied, 474 U.S. 975, 106 S.Ct. But their sentences were set aside by the Arizona Supreme Court in 1989. Instead, the Arizona Supreme Court attempted to reformulate "intent to kill" as a species of foreseeability. . . . 14, 1979, hearing). 869, 71 L.Ed.2d 1 (1982) (adopting position of Lockett plurality). "Enmund did not kill or intend to kill and thus his culpability is plainly different from that of the robbers who killed; yet the State treated them alike and attributed to Enmund the culpability of those who killed the Kerseys. While the States generally have wide discretion in deciding how much retribution to exact in a given case, the death penalty, "unique in its severity and irrevocability," Gregg v. Georgia, 428 U.S. 153, 187, 96 S.Ct. Importantly, the judge specifically found that the crime was not mitigated by the fact that each of the petitioner's "participation was relatively minor." Wanton killings are generally regarded as among the most wicked, and the feature that makes a killing wanton is precisely the absence of detached reflection before the deed. We hold that the Arizona Supreme Court applied an erroneous standard in making the findings required by Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 1182, 89 L.Ed.2d 299 (1986).2. Tison v. Arizona | Case Brief for Law Students | Casebriefs In addition, the Court's statement that Raymond did not act to assist the victims "after" the shooting, and its statement that Ricky "watched the killing after which he chose to aid those whom he had placed in the position to kill rather than their victims," ante, at 152, takes license with the facts found by the Arizona Supreme Court. 3001, 3011, 77 L.Ed.2d 637 (1983), the Court summarized the essence of the inquiry: "In sum, a court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." Id., at 608, 98 S.Ct., at 2966 (opinion of Burger, C.J. Raymond later explained that his father "was like in conflict with himself. Despite its earlier holding that petitioners had not killed or intended to kill anyone, the Arizona Supreme Court again upheld the Tisons' sentences. 2861, 53 L.Ed.2d 982 (1977). Deeply ingrained in our legal tradition is the idea that the more purposeful is the criminal conduct, the more serious is the offense, and, therefore, the more severely it ought to be punished. App. 399 So.2d [1362], at 1370 [Fla.1981]." After the Arizona Supreme Court affirmed petitioners' individual convictions for capital murder under that State's felony-murder and accomplice-liability statutes, petitioners collaterally attacked their death sentences in state postconviction proceedings, alleging that Enmund v. Florida, 458 U.S. 782, 102 S.Ct. Like the Enmund Court, we find the state legislatures' judgment as to proportionality in these circumstances relevant to this constitutional inquiry.4 The largest number of States still fall into the two intermediate categories discussed in Enmund. 136, 161, 447 N.E.2d 353, 378 (defendant present at the scene and had participated in other crimes with Holman, the triggerman, during which Holman had killed under similar circumstances), cert. The Tison brothers' cases fall into neither of these neat categories. Id., at 801, 102 S.Ct., at 3378. 180, 74 L.Ed.2d 147 (1982). 39, 108. 13-1105(A)(2), (B) (Supp.1986). Love Island's Rachel Fenton and Rykard Jenkins split after nearly 18 1328, 79 L.Ed.2d 723 (1984); Deputy v. State, 500 A.2d 581, 599 (Del.1985) ("Deputy was not solely a participant in the underlying felony, but was instead present during, and involved in, the actual murders"), cert. New Jersey has joined the ranks of the States imposing capital punishment in intentional murders but not felony murders. Idaho Code 19-2515(g) (Supp.1986); Okla.Stat., Tit. On its face, however, that decision would seem to violate the core Eighth Amendment requirement that capital punishment be based on an "individualized consideration" of the defendant's culpability, Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. Indeed, the trial court recognized the disjunction between the felonies and the murders when it found that Gary Tison's and Greenawalt's decision to murder the family was senseless and unnecessary to the escape. The accomplice liability provisions of Arizona law have been modernized and recodified also. 447-448 (1978) ("[I]n the common law, intentional killing is not the only basis for establishing the most egregious form of criminal homicide. Otherwise, the court noted, Ricky Tison's participation was substantially the same as Raymond's. In any given case, the Court said, the death penalty must "measurably contribut[e]" to one or both of the two "social purposes"deterrence and retributionwhich this Court has accepted as justifications for the death penalty. 565.001, 565.003, 565.020 (1986) (death penalty reserved for those who intentionally, knowingly, and deliberately cause death); 18 Pa. Cons. First, the Court's dictum that its new category of mens rea is applicable to these petitioners is not supported by the record. Ethical Punishment: The Tison Brothers - 1395 Words | Cram The sons conditioned their participation on their father's promise that no one would get hurt; during the breakout, their father kept his word. Tison v. Arizona, 481 U.S. 137 (1987) - Justia Law 3368, 73 L.Ed.2d 1140 (1982), the question "whether death is a valid penalty under the Eighth and Fourteenth Amendments for one who neither took life, attempted to take life, nor intended to take life." The victims could easily have been restrained sufficiently to permit the defendants to travel a long distance before the robberies, the kidnappings, and the theft were reported." Id., at 788, 102 S.Ct., at 3372. as equivalent to purposeful and knowing killing." Ricky and Raymond Tison are similarly situated with Earl Enmund in every respect that mattered to the decision in Enmund. NAACP Legal Defense and Educational Fund, Death Row U.S.A. 1 (Aug. 1986). The court did not refer to the evidence in the record of petitioners' mental states concerning the actual shootings, however, nor was such evidence relevant to its decision. We take the facts as the Arizona Supreme Court has given them to us. Raymond did so, and, while the others guarded the Lyons and Theresa Tyson, Gary fired his shotgun into the radiator, presumably to completely disable the vehicle. At one pole was Enmund himself: the minor actor in an armed robbery, not on the scene, who neither intended to kill nor was found to have had any culpable mental state. Ann., Tit. After Gary Tison rendered the Lincoln inoperable by firing into its engine compartment, petitioner assisted in escorting the victims to the Lincoln. He eluded law enforcement for days. When the Arizona Supreme Court first reviewed this case on appeal, it stated that petitioners' degree of mens rea was of little significance to the case. . One reason the Court offers for its conclusion that death is proportionate punishment for persons falling within its new category is that limiting the death penalty to those who intend to kill "is a highly unsatisfactory means of definitively distinguishing the most culpable and dangerous of murderers." In a felony-murder situation, it made little difference whether the actor was convicted of murder or of the underlying felony because the sanction was the same. The discrepancy between those aspects of the record on which the Court has chosen to focus and those aspects it has chosen to ignore underscores the point that a reliable and individualized Enmund determination can be made only by the trial court following an evidentiary hearing. Ariz.Rev.Stat.Ann. 689, 88 L.Ed.2d 704 (1986). In doing so, the court found Raymond and Ricky On the other hand, even after Enmund, only 11 States authorizing capital punishment forbid imposition of the death penalty even though the defendant's participation in the felony murder is major and the likelihood of killing is so substantial as to raise an inference of extreme recklessness.10 This substantial and recent legislative authorization of the death penalty for the crime of felony murder regardless of the absence of a finding of an intent to kill powerfully suggests that our society does not reject the death penalty as grossly excessive under these circumstances, Gregg v. Georgia, 428 U.S., at 179-181, 96 S.Ct., at 2928-2929 (opinion of Stewart, POWELL, and STEVENS, JJ. But the constitutionality of the death penalty for those individuals is no more relevant to this case than it was to Enmund, because this case, like Enmund, involves accomplices who did not kill. The accomplice, although accountable for the death by his participation in the attempt [sic] armed robbery, did not do the actual killing." 13-452 (1956) (repealed 1978), and that each participant in the kidnaping or robbery is legally responsible for the acts of his accomplices. 1676.) Randy, and the Tison brothers were put on trial, first together for running a roadblock and the shootout that followed, and each separately for the murder of the Lyons family. In 1978, Tison and Greenawaltwere awarded for their good behavior, and transferred into the trustee unit. After surveying the States' felony-murder statutes, the Enmund Court next examined the behavior of juries in cases like Enmund's in its attempt to assess American attitudes toward capital punishment in felony-murder cases. What would be relevant, and what the summary in Enmund does not tell us, is how many of the 41 who did not participate were also found not to have intended that the murder occur. We granted certiorari in order to consider the Arizona Supreme Court's application of Enmund. 53a-46a(g)(4) (1985); 49 U.S.C.App. More than 300 officers and hundreds of civilian volunteers searched for Tison in the desert near Chuichu, Arizona - about 10 miles South of Casa Grande. The Arizona Supreme Court affirmed. These facts not only indicate that the Tison brothers' participation in the crime was anything but minor; they also would clearly support a finding that they both subjectively appreciated that their acts were likely to result in the taking of innocent life. Vermont fell into none of these categories. The question arose because the Florida Supreme Court affirmed the death sentence for Earl Enmund, an accomplice in an armed robbery in which his two cofelons had killed the two individuals that the felons had intended to rob. The question presented is whether the petitioners' participation in the events leading up to and following the murder of four members of a family makes the sentences of death imposed by the Arizona courts constitutionally permissible although neither petitioner specifically intended to kill the victims and neither inflicted the fatal gunshot wounds. "I do believe that their father, Gary Tison, exerted a strong, consistent, destructive but subtle pressure upon these youngsters and I believe that these young men got committed to an act which was essentially 'over their heads.' The Court then remands the case for a determination by the state court whether petitioners are culpable under this new standard. Evidence that a penalty is imposed only infrequently suggests not only that jurisdictions are reluctant to apply it but also that, when it is applied, its imposition is arbitrary and therefore unconstitutional. As for the fifth case, People v. Davis, 95 Ill.2d 1, 52-53, 69 Ill.Dec. denied, 465 U.S. 1074, 104 S.Ct. Enmund, 458 U.S., at 798, 102 S.Ct., at 3377 ("It is fundamental that 'causing harm intentionally must be punished more severely than causing the same harm unintentionally' " (citation omitted)); United States v. United States Gypsum Co., 438 U.S. 422, 444, 98 S.Ct. .' 13-139 (1956) (repealed 1978). Ante, at 145 (citation omitted). For example, we do not doubt that there are some felonies as to which one could properly conclude that any major participant necessarily exhibits reckless indifference to the value of human life. 13-454(F)(4) (Supp.1973) (repealed 1978). . And an intuition that sons and daughters must sometimes be punished for the sins of the father may be deeply rooted in our consciousness.20 Yet punishment that conforms more closely to such retributive instincts than to the Eighth Amendment is tragicly anachronistic in a society governed by our Constitution. The state statutes discussed in Enmund v. Florida are largely unchanged. After the decision of the Arizona Supreme Court, this Court addressed, in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. Tison gang, on lam, terrorized state for 13 days 25 years ago The group made a safe exit, but a few . E.g., Clark v. Louisiana State Penitentiary, 694 F.2d 75 (CA5 1982) (under Louisiana law, jury must find specific intent to kill); People v. Garcia, 36 Cal.3d 539, 205 Cal.Rptr. Other intentional homicides, though criminal, are often felt undeserving of the death penalty those that are the result of provocation. 459 U.S. 882, 103 S.Ct. would clearly support a finding that [both sons] subjectively appreciated that their acts were likely to result in the taking of innocent life"). The occupants of the house, an elderly couple, resisted and Enmund's accomplices killed them. He did find, however, three nonstatutory mitigating factors: (1) the petitioners' youthRicky was 20 and Raymond was 19; (2) neither had prior felony records; (3) each had been convicted of the murders under the felony-murder rule. See Enmund v. Florida, 458 U.S. 782, 791, n. 11, 102 S.Ct. 142 Ariz. 446, 448, 690 P.2d 747, 749 (1984); 142 Ariz., at 456, 690 P.2d, at 757. The trial court found that the killings in the case were not an essential ingredient of the felony. See, e.g., Horace, Odes III, 6:1 (C. Bennett trans. See Cabana v. Bullock, 474 U.S. 376, 391, 106 S.Ct. Ricky stated that they had returned with the water, but were still some distance ("farther than this room") from the Lincoln when the shootings started, id., at 40-41, 111, and that the brothers then turned away from the scene and went back to the Mazda, id., at 113. Nevertheless, the Court saw no reason to depart from its conclusion that the death penalty could not be justified as a deterrent in that case, because "competent observers have concluded that there is no basis in experience for the notion that death so frequently occurs in the course of a felony for which killing is not an essential ingredient that the death penalty should be considered as a justifiable deterrent to the felony itself." This reckless indifference to the value of human life may be every bit as shocking to the moral sense as an "intent to kill." 76-5-202(1) (Supp.1986); Va.Code 18.2-31 (Supp.1986). They rounded up guards and visitors and locked them in a storage closet, then the five men walked slowly out of the prison. ." He was 76. 1, 3, 4 (1531); 1 Edw. Randy had been tried and sentences to death as the triggerman who had killed the Lyons, 18 years later he was executed in 1997. Gary. Gary Tison said he was "thinking about it." His body was found 10 days later. Tison was doing life for killing a Phoenix jail guard in 1967. The deaths would not have occurred but for their assistance. App. As a result, the court imposed the death sentence.3. After he had been in prison a number of years, Gary Tison's wife, their three sons Donald, Ricky, and Raymond, Gary's brother Joseph, and other relatives made plans to help Gary Tison escape again. In. 782.04(1)(a), 775.082(1), 921.141(5)(d) (1985); Ga.Code 16-5-1(a), 17-10-30(b)(2) (1984 and 1982); S.C.Code 16-3-10, 16-3-20(C)(a)(1) (1985 and Supp.1986); Tenn.Code Ann. 435, 78 L.Ed.2d 367 (1983); State v. McDaniel, 136 Ariz. 188, 665 P.2d 70 (1983) (defendant killed victim); State v. Gillies, 135 Ariz. 500, 662 P.2d 1007 (1983) (defendant took an active and deliberate part in the killing). 2954, 2965, 57 L.Ed.2d 973 (1978). 2C:11-3a(a), (c) (West Supp.1986) (felony murder not capital); N.M.Stat.Ann. denied, 469 U.S. 990, 105 S.Ct. Ante, at 148, see Enmund, 458 U.S., at 795, 102 S.Ct., at 3375. Both lived at home with their mother, and visited their father, whom they believed to be "a model prisoner," each week. The Framers provided in the Eighth Amendment the limiting principles otherwise absent in the prevailing theories of punishment. Smuggling in a cooler full of guns, the Tisons helped Gary and his cellmate Randy escape. ." 2d 127 (1987) Brief Fact Summary. 408 U.S., at 313, 92 S.Ct., at 2764 (WHITE, J., concurring). See ante, at 143-145. denied, 464 U.S. 986, 104 S.Ct. The court noted that Ricky Tison armed himself and hid on the side of the road with the others while Raymond flagged down the Lyons family. " Pet. With regard to deterrence, the Court was "quite unconvinced . 9 Enmund v. Florida, 458 U.S., at 786, 102 S.Ct., at 3371. Gary Tison, who vowed never to be taken alive, escaped. Cf. . Ante, at ----. Enmund, supra, 458 U.S., at 798-799, 102 S.Ct., at 3377.11. See Brief for Petitioners 3 (citing Tr. The reckless actor has not chosen to bring about the killing in the way the intentional actor has. At a minimum, however, it can be said that all these jurisdictions, as well as six States which Enmund classified along with Florida as permitting capital punishment for felony murder simpliciter,8 and the three States which simply require some additional aggravation before imposing the death penalty upon a felony murderer,9 specifically authorize the death penalty in a felony-murder case where, though the defendant's mental state fell short of intent to kill, the defendant was a major actor in a felony in which he knew death was highly likely to occur. The question this case presents is what punishment Arizona may constitutionally exact from two of Gary Tison's sons for their role in these events. Influential commentators and some States have approved the use of the death penalty for persons, like those given in the Court's examples, who kill others in circumstances manifesting an extreme indifference to the value of human life.8 Thus an exception to the requirement that only intentional murders be punished with death might be made for persons who actually commit an act of homicide; Enmund, by distinguishing from the accomplice case "those who kill," clearly reserved that question. 1417, 1421, 8 L.Ed.2d 758 (1962) ("Even one day in prison would be a cruel and unusual punishment for the 'crime' of having a common cold"); Enmund v. Florida, 458 U.S., at 801, 102 S.Ct., at 3378 (Enmund's "punishment must be tailored to his personal responsibility and moral guilt"). Moreover, even in cases where the fact that the defendant was a major participant in a felony did not suffice to establish reckless indifference, that fact would still often provide significant support for such a finding. Carlos v. Superior Court of Los Angeles Co., 35 Cal.3d 131, 197 Cal.Rptr. App. As explained in the Commentaries on the Model Penal Code: "At common law all felonies were punishable by death. Second, when evaluating such a defendant's mental state, a determination that the defendant acted with intent is qualitatively different from a determination that the defendant acted with reckless indifference to human life. The Court acknowledged, however, that "[i]t would be very different if the likelihood of a killing in the course of a robbery were so substantial that one should share the blame for the killing if he somehow participated in the felony." It will always be there." 2726, 33 L.Ed.2d 346 (1972). 3368, 73 L.Ed.2d 1140 (1982), and, therefore, vacate the judgments below and remand the case for further proceedings not inconsistent with this opinion. Enmund was, therefore, sentenced under a distinct minority regime, a regime that permitted the imposition of the death penalty for felony murder simpliciter. Thus the goal of deterrence is no more served in this case than it was in Enmund.