U.S. Supreme Court Tison v. Arizona, 481
U.S. 137 (1987) Tison v. Arizona No. 84-6075 Argued November 3,
1986 Decided April 21, 1987 481
U.S. 137 ast|>* 481
U.S. 137 CERTIORARI TO THE SUPREME COURT OF
ARIZONA Syllabus Petitioner brothers, along with other members of their family,
planned and effected the escape of their father from prison, where
he was serving a life sentence for having killed a guard during a
previous escape. Petitioners entered the prison with a chest filled
with guns, armed their father and another convicted murderer, later
helped to abduct, detain, and rob a family of four, and watched
their father and the other convict murder the members of that
family with shotguns. Although they both later stated that they
were surprised by the shooting, neither petitioner made any effort
to help the victims, but drove away in the victims' car with the
rest of the escape party. 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 ,
which had been decided in the interim, required reversal. However,
the State Supreme Court determined that they should be executed,
holding that Enmund requires a finding of "intent to
kill," and interpreting that phrase to include situations in which
the defendant intended, contemplated, or anticipated that lethal
force would or might be used, or that life would or might be taken
in accomplishing the underlying felony. Despite finding that
petitioners did not specifically intend that the victims die, plan
the homicides in advance, or actually fire the shots, the court
ruled that the requisite intent was established by evidence that
petitioners played an active part in planning and executing the
breakout and in the events that lead to the murders, and that they
did nothing to interfere with the killings nor to disassociate
themselves from the killers afterward. Although only one of the
petitioners testified that he would have been willing to kill, the
court found that both of them could have anticipated the use of
lethal force. Held: Although petitioners neither intended to kill the
victims nor inflicted the fatal wounds, the record might support a
finding that they had the culpable mental state of reckless
indifference to human life. The Eighth Amendment does not prohibit
the death penalty as disproportionate in Page 481 U. S. 138 the case of a defendant whose participation in a felony that
results in murder is major and whose mental state is one of
reckless indifference. A survey of state felony murder laws and
judicial decisions after Enmund indicates a societal
consensus that that combination of factors may justify the death
penalty even without a specific "intent to kill." Reckless
disregard for human life also represents a highly culpable mental
state that may support a capital sentencing judgment in combination
with major participation in the felony resulting in death. Because
the Arizona Supreme Court affirmed these death sentences upon a
finding that the defendants "intended, contemplated, or anticipated
that lethal force would or might be used, or that life would or
might be taken," the case must be remanded. Pp. 481 U. S.
146 -168.

															142 Ariz. 446, 690 P.2d 147, and 142 Ariz. 454, 690 P.2d 766,
vacated and remanded.

															O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, POWELL, and SCALIA, JJ., joined.
BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J.,
joined, and in Parts I, II, III, and IV-A of which BLACKMUN and
STEVENS, JJ., joined, post, p. 481 U. S.
169 .

															JUSTICE O'CONNOR delivered the opinion of the Court.

															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. We hold that the Arizona
Supreme Court applied an erroneous standard in making the findings
required by Enmund v. Florida, 458 U.
S. 782 (1982), and, therefore, vacate the judgments
below and remand the case for further proceedings not inconsistent
with this opinion. Page 481 U. S. 139 I Gary Tison was sentenced to life imprisonment as the result of a
prison escape during the course of which he had killed a guard.
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. See State v. Dorothy Tison, Cr. No. 108352
(Super.Ct.Maricopa County 1981). The Tison family assembled a large
arsenal of weapons for this purpose. Plans for escape were
discussed with Gary Tison, who insisted that his cellmate, Randy
Greenawalt, also a convicted murderer, be included in the prison
break. The following facts are largely evidenced by petitioners'
detailed confessions given as part of a plea bargain according to
the terms of which the State agreed not to seek the death sentence.
The Arizona courts interpreted the plea agreement to require that
petitioners testify to the planning stages of the breakout. When
they refused to do so, the bargain was rescinded and they were
tried, convicted, and sentenced to death.

															On July 30, 1978, the three Tison brothers entered the Arizona
State Prison at Florence carrying a large ice chest filled with
guns. The Tisons armed Greenawalt and their father, and the group,
brandishing their weapons, locked the prison guards and visitors
present in a storage closet. The five men fled the prison grounds
in the Tisons' Ford Galaxy automobile. No shots were fired at the
prison.

															After leaving the prison, the men abandoned the Ford automobile
and proceeded on to an isolated house in a white Lincoln automobile
that the brothers had parked at a hospital near the prison. At the
house, the Lincoln automobile had a flat tire; the only spare tire
was pressed into service. After two nights at the house, the group
drove toward Flagstaff. As the group traveled on back roads and
secondary highways through the desert, another tire blew out. The
group decided Page 481 U. S. 140 to flag down a passing motorist and steal a car. Raymond stood
out in front of the Lincoln; the other four armed themselves and
lay in wait by the side of the road. One car passed by without
stopping, but a second car, a Mazda occupied by John Lyons, his
wife Donnelda, his 2-year-old son Christopher, and his 15-year-old
niece, Theresa Tyson, pulled over to render aid.

															As Raymond showed John Lyons the flat tire on the Lincoln, the
other Tisons and Greenawalt emerged. The Lyons family was forced
into the backseat of the Lincoln. Raymond and Donald drove the
Lincoln down a dirt road off the highway, and then down a gas line
service road farther into the desert; Gary Tison, Ricky Tison, and
Randy Greenawalt followed in the Lyons' Mazda. The two cars were
parked trunk to trunk and the Lyons family was ordered to stand in
front of the Lincoln's headlights. The Tisons transferred their
belongings from the Lincoln into the Mazda. They discovered guns
and money in the Mazda, which they kept, and they put the rest of
the Lyons' possessions in the Lincoln.

															Gary Tison then told Raymond to drive the Lincoln still farther
into the desert. 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. The Lyons and Theresa
Tyson were then escorted to the Lincoln, and again ordered to stand
in its headlights. Ricky Tison reported that John Lyons begged, in
comments "more or less directed at everybody," "Jesus, don't kill
me." Gary Tison said he was "thinking about it." App. 39, 108. John
Lyons asked the Tisons and Greenawalt to "[g]ive us some water . .
. just leave us out here, and you all go home." Gary Tison then
told his sons to go back to the Mazda and get some water. Raymond
later explained that his father "was like in conflict with himself.
. . . What it was, I think it was the baby being there and all
this, and he wasn't sure about what to do." Id. at 20-21,
74. Page 481 U. S. 141 The petitioners' statements diverge to some extent, but it
appears that both of them went back towards the Mazda, along with
Donald, while Randy Greenawalt and Gary Tison stayed at the Lincoln
guarding the victims. Raymond recalled being at the Mazda filling
the water jug "when we started hearing the shots." Id. at
21. Ricky said that the brothers gave the water jug to Gary Tison,
who then, with Randy Greenawalt, went behind the Lincoln, where
they spoke briefly, then raised the shotguns and started firing. Id. at 41, 111. In any event, petitioners agree they saw
Greenawalt and their father brutally murder their four captives
with repeated blasts from their shotguns. Neither made an effort to
help the victims, though both later stated they were surprised by
the shooting. The Tisons got into the Mazda and drove away,
continuing their flight. Physical evidence suggested that Theresa
Tyson managed to crawl away from the bloodbath, severely injured.
She died in the desert after the Tisons left.

															Several days later, the Tisons and Greenawalt were apprehended
after a shootout at a police roadblock. Donald Tison was killed.
Gary Tison escaped into the desert, where he subsequently died of
exposure. Raymond and Ricky Tison and Randy Greenawalt were
captured and tried jointly for the crimes associated with the
prison break itself and the shootout at the roadblock; each was
convicted and sentenced.

															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. The capital
murder charges were based on Arizona felony murder law providing
that a killing occurring during the perpetration of robbery or
kidnaping is capital murder, Ariz.Rev.Stat.Ann. § 13-452 (1956)
(repealed 1978), and that each participant in the kidnaping or
robbery is legally responsible for the acts of his accomplices.
Ariz.Rev.Stat.Ann. § 13-139 (1956) (repealed 1978). Each of the
petitioners was convicted Page 481 U. S. 142 of the four murders under these accomplice liability and felony
murder statutes. [ Footnote
1 ]

															Arizona law also provided for a capital sentencing proceeding,
to be conducted without a jury, to determine whether the crime was
sufficiently aggravated to warrant the death sentence.
Ariz.Rev.Stat.Ann. § 13-454(A) (Supp.1973) (repealed 1978). The
statute set out six aggravating and four mitigating factors.
Ariz.Rev.Stat.Ann. §§ 13-454(E), (F) (Supp.1973) (repealed 1978).
The judge found three statutory aggravating factors:

															"(1) the Tisons had created a grave risk of death to others (not
the victims);"

															"(2) the murders had been committed for pecuniary gain;"

															"(3) the murders were especially heinous."

															The judge found no statutory mitigating factor. Importantly, the
judge specifically found that the crime was not mitigated
by the fact that each of the petitioners' "participation was
relatively minor." Ariz.Rev.Stat.Ann. § 13-454(F)(3) (Supp.1973)
(repealed 1978). Rather, he found that the "participation of each
[petitioner] in the crimes giving rise to the application of the
felony murder rule in this case was very substantial." App.
284-285. The trial judge also specifically found, id. at
285, that each "could reasonably have foreseen that his conduct . .
. would cause or create a grave risk of . . . death."
Ariz.Rev.Stat.Ann. § 13-454(F)(4) (Supp.1973) (repealed 1978). He
did find, however, three nonstatutory mitigating factors:

															"(1) the petitioners' youth -- Ricky was 20 and Raymond was 19;
" Page 481 U. S. 143 "(2) neither had prior felony records;"

															"(3) each had been convicted of the murders under the felony
murder rule."

															Nevertheless, the judge sentenced both petitioners to death.

															On direct appeal, the Arizona Supreme Court affirmed. The Court
found:

															"The record establishes that both Ricky and Raymond Tison were
present when the homicides took place, and that they occurred as
part of and in the course of the escape and continuous attempt to
prevent recapture. The deaths would not have occurred but for their
assistance. That they did not specifically intend that the Lyonses
and Theresa Tyson die, that they did not plot in advance that these
homicides would take place, or that they did not actually pull the
triggers on the guns which inflicted the fatal wounds is of little
significance." State v. (Ricky Wayne) Tison, 129 Ariz. 526, 545, 633 P.2d 335 ,
354 (1981). In evaluating the trial court's findings of aggravating
and mitigating factors, the Arizona Supreme Court found the first
aggravating factor -- creation of grave risk to others -- not
supported by the evidence. All those killed were intended victims,
and no one else was endangered. The Arizona Supreme Court, however,
upheld the "pecuniary gain" and "heinousness" aggravating
circumstances and the death sentences. This Court denied the
Tisons' petition for certiorari. 459 U.S. 882 (1982).

															Petitioners then collaterally attacked their death sentences in
state postconviction proceedings, alleging that Enmund v.
Florida, 458 U. S. 782 (1982), which had been decided in the interim, required reversal. A
divided Arizona Supreme Court, interpreting Enmund to
require a finding of "intent to kill," declared in Raymond Tison's
case "the dictate of Enmund is satisfied," writing: Page 481 U. S. 144 "Intend [ sic ] to kill includes the situation in which
the defendant intended, contemplated, or anticipated that lethal
force would or might be used or that life would or might be taken
in accomplishing the underlying felony. Enmund, supra; State v.
Emery, [141 Ariz. 549, 554, 688 P.2d 175 , 180 (1984)]
filed June 6, 1984."

															"In the present case, the evidence does not show that petitioner
killed or attempted to kill. The evidence does demonstrate beyond a
reasonable doubt, however, that petitioner intended to kill.
Petitioner played an active part in preparing the breakout,
including obtaining a getaway car and various weapons. At the
breakout scene itself, petitioner played a crucial role by, among
other things, holding a gun on prison guards. Petitioner knew that
Gary Tison's murder conviction arose out of the killing of a guard
during an earlier prison escape attempt. Thus, petitioner could
anticipate the use of lethal force during this attempt to flee
confinement; in fact, he later said that, during the escape, he
would have been willing personally to kill in a 'very close
life-or-death situation,' and that he recognized that, after the
escape, there was a possibility of killings."

															"The use of lethal force that petitioner contemplated indeed
occurred when the gang abducted the people who stopped on the
highway to render aid. Petitioner played an active part in the
events that led to the murders. He assisted in the abduction by
flagging down the victims as they drove by, while the other members
of the gang remained hidden and armed. He assisted in escorting the
victims to the murder site. At the site, petitioner, Ricky Tison
and Greenawalt placed the gang's possessions in the victims' Mazda
and the victims' possessions in the gang's disabled Lincoln
Continental. After Gary Tison rendered the Lincoln inoperable by
firing into its engine compartment, petitioner assisted in
escorting the victims to the Lincoln. Petitioner then Page 481 U. S. 145 watched Gary Tison and Greenawalt fire in the direction of the
victims. Petitioner did nothing to interfere. After the killings,
petitioner did nothing to disassociate himself from Gary Tison and
Greenawalt, but instead used the victims' car to continue on the
joint venture, a venture that lasted several more days."

															"From these facts, we conclude that petitioner intended to kill.
Petitioner's participation up to the moment of the firing of the
fatal shots was substantially the same as that of Gary Tison and
Greenawalt. . . . Petitioner, actively participated in the events
leading to death by, inter alia, providing the murder
weapons and helping abduct the victims. Also, petitioner was
present at the murder site, did nothing to interfere with the
murders, and, after the murders, even continued on the joint
venture."

															". . . In Enmund, unlike in the present case, the
defendant did not actively participate in the events leading to
death (by, for example, as in the present case, helping abduct the
victims) and was not present at the murder site."

															142 Ariz. 454, 456-457, 690 P.2d
755 , 757-758 (1984).

															In Ricky Tison's case, the Arizona Supreme Court relied on a
similar recitation of facts to find intent. It found that, though
Ricky Tison had not said that he would have been willing to kill,
he "could anticipate the use of lethal force during this attempt to
flee confinement." 142 Ariz. 446, 448, 690
P.2d 747 , 749 (1984). 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. Ricky claimed to have a
somewhat better view than Raymond did of the actual killing.
Otherwise, the court noted, Ricky Tison's participation was
substantially the same as Raymond's. Id. at 447-448, 690
P.2d at 748-749. We granted certiorari in Page 481 U. S. 146 order to consider the Arizona Supreme Court's application of Enmund. 475 U.S. 1010 (1986). [ Footnote 2 ] II In Enmund v. Florida, this Court reversed the death
sentence of a defendant convicted under Florida's felony murder
rule. Enmund was the driver of the "getaway" car in an armed
robbery of a dwelling. The occupants of the house, an elderly
couple, resisted, and Enmund's accomplices killed them. The Florida
Supreme Court found the inference that Enmund was the person in the
car by the side of the road waiting to help his accomplices escape
sufficient to support his sentence of death:

															"'[T]he only evidence of the degree of [Enmund's] participation
is the jury's likely inference that he was the person in the car by
the side of the road near the scene of the crimes. The jury could
have concluded that he was there, a few hundred feet away, waiting
to help the robbers escape with the Kerseys' money. The evidence,
therefore, was sufficient to find that the appellant was a
principal of the second degree, constructively present aiding and
abetting the commission of the crime of robbery. This conclusion
supports the verdicts of murder in the first degree on the basis of
the felony murder portion Page 481 U. S. 147 of section 782.04(1)(a).' 399 So. 2d at 1370." Enmund v. Florida, 458 U.S. at 458 U. S.
786 .

															This Court, citing the weight of legislative and community
opinion, found a broad societal consensus, with which it agreed,
that the death penalty was disproportional to the crime of
robbery-felony murder "in these circumstances." Id. at 458 U. S. 788 .
The Court noted that although 32 American jurisdictions permitted
the imposition of the death penalty for felony murders under a
variety of circumstances, Florida was 1 of only 8 jurisdictions
that authorized the death penalty "solely for participation in a
robbery in which another robber takes life." Id. at 458 U. S. 789 . Enmund was, therefore, sentenced under a distinct minority
regime, a regime that permitted the imposition of the death penalty
for felony murder simpliciter. At the other end of the
spectrum, eight States required a finding of intent to kill before
death could be imposed in a felony murder case, and one State
required actual participation in the killing. The remaining States
authorizing capital punishment for felony murders fell into two
somewhat overlapping middle categories: three authorized the death
penalty when the defendant acted with recklessness or extreme
indifference to human life, and nine others, including Arizona,
required a finding of some aggravating factor beyond the fact that
the killing had occurred during the course of a felony before a
capital sentence might be imposed. Arizona fell into a subcategory
of six States which made "minimal participation in a capital felony
committed by another person a [statutory] mitigating circumstance." Id. at 458 U. S. 792 .
Two more jurisdictions required a finding that the defendant's
participation in the felony was not "relatively minor" before
authorizing a capital sentence. Id. at 458 U. S. 791 .
[ Footnote 3 ] Page 481 U. S. 148 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. Of 739 death-row
inmates, only 41 did not participate in the fatal assault. All but
16 of these were physically present at the scene of the murder, and
of these only 3, including Enmund, were sentenced to death in the
absence of a finding that they had collaborated in a scheme
designed to kill. 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. Against this background, the Court undertook its own
proportionality analysis. Armed robbery is a serious offense, but
one for which the penalty of death is plainly excessive; the
imposition of the death penalty for robbery, therefore, violates
the Eighth and Fourteenth Amendments' proscription " against all
punishments which, by their excessive length or severity, are
greatly disproportioned to the offenses charged.'" Weems v.
United States, 217 U. S. 349 , 217 U. S. 371 (1910) (quoting O'Neil v. Vermont, 144 U.
S. 323 , 144 U. S.
339 -340 (1892)); cf. Coker v. Georgia, 433 U. S. 584 (1977) (holding the death penalty disproportional to the crime of
rape). Furthermore, the Court found that Enmund's degree of
participation in the murders was so tangential that it
could not be said to justify a sentence of death. It found that
neither the deterrent nor the retributive purposes of the death
penalty were advanced by imposing the death penalty upon Enmund.
The Enmund Court was unconvinced "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."

															458 U.S. at 458 U. S.
798 -799. In reaching this conclusion, the Court relied
upon the fact that killing only rarely occurred during the course
of robberies, Page 481 U. S. 149 and such killing as did occur even more rarely resulted in death
sentences if the evidence did not support an inference that the
defendant intended to kill. 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." Id. at 458 U. S.
799 .

															That difference was also related to the second purpose of
capital punishment, retribution. The heart of the retribution
rationale is that a criminal sentence must be directly related to
the personal culpability of the criminal offender. 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 , 428 U. S. 187 (1976), requires the State to inquire into the relevant facets of
"the character and record of the individual offender." Woodson
v. North Carolina, 428 U. S. 280 , 428 U. S. 304 (1976). Thus, in Enmund's case,

															"the focus [had to] be on his culpability, not on that
of those who committed the robbery and shot the victims, for we
insist on 'individualized consideration as a constitutional
requirement in imposing the death sentence.'" Enmund v. Florida, supra, at 458 U. S. 798 (quoting Lockett v. Ohio, 438 U.
S. 586 , 438 U. S. 605 (1978)) (emphasis in original). Since Enmund's own participation in
the felony murder was so attenuated, and since there was no proof
that Enmund had any culpable mental state, Enmund v. Florida,
supra, at 458 U. S.
790 -791, the death penalty was excessive retribution for
his crimes. Enmund explicitly dealt with two distinct subsets of
all felony murders in assessing whether Enmund's sentence was
disproportional under the Eighth Amendment. 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. Only a small minority of States even authorized the
death penalty in such circumstances, and even within those
jurisdictions, the death Page 481 U. S. 150 penalty was almost never exacted for such a crime. The Court
held that capital punishment was disproportional in these cases. Enmund also clearly dealt with the other polar case: the
felony murderer who actually killed, attempted to kill, or intended
to kill. The Court clearly held that the equally small minority of
jurisdictions that limited the death penalty to these circumstances
could continue to exact it in accordance with local law when the
circumstances warranted. The Tison brothers' cases fall into
neither of these neat categories.

															Petitioners argue strenuously that they did not "intend to kill"
as that concept has been generally understood in the common law. We
accept this as true. Traditionally,

															"one intends certain consequences when he desires that his acts
cause those consequences or knows that those consequences are
substantially certain to result from his acts."

															W. LaFave & A. Scott, Criminal Law § 28, p.196 (1972); see Lockett v. Ohio, supra, at 438 U. S.
625 -626 (1978) (opinion of WHITE, J.) (equating intent
with purposeful conduct); see also Perkins, A Rationale of
Mens Rea, 52 Harv.L.Rev. 905, 911 (1939). As petitioners point out,
there is no evidence that either Ricky or Raymond Tison took any
act which he desired to, or was substantially certain would, cause
death.

															The Arizona Supreme Court did not attempt to argue that the
facts of this case supported an inference of "intent" in the
traditional sense. Instead, the Arizona Supreme Court attempted to
reformulate "intent to kill" as a species of foreseeability. The
Arizona Supreme Court wrote:

															"Intend [ sic ] to kill includes the situation in which
the defendant intended, contemplated, or anticipated that lethal
force would or might be used, or that life would or might be taken
in accomplishing the underlying felony."

															142 Ariz., at 456, 690 P.2d at 757. This definition of intent is
broader than that described by the Enmund Court.
Participants in violent felonies like armed robberies can
frequently "anticipat[e] that lethal force . . . Page 481 U. S. 151 might be used . . . in accomplishing the underlying felony."
Enmund himself may well have so anticipated. Indeed, the
possibility of bloodshed is inherent in the commission of any
violent felony, and this possibility is generally foreseeable and
foreseen; it is one principal reason that felons arm themselves.
The Arizona Supreme Court's attempted reformulation of intent to
kill amounts to little more than a restatement of the felony murder
rule itself. Petitioners do not fall within the "intent to kill"
category of felony murderers for which Enmund explicitly
finds the death penalty permissible under the Eighth Amendment.

															On the other hand, it is equally clear that petitioners also
fall outside the category of felony murderers for whom Enmund explicitly held the death penalty disproportional:
their degree of participation in the crimes was major, rather than
minor, and the record would support a finding of the culpable
mental state of reckless indifference to human life. We take the
facts as the Arizona Supreme Court has given them to us. Cabana
v. Bullock, 474 U. S. 376 (1986).

															Raymond Tison brought an arsenal of lethal weapons into the
Arizona State Prison which he then handed over to two convicted
murderers, one of whom he knew had killed a prison guard in the
course of a previous escape attempt. By his own admission, he was
prepared to kill in furtherance of the prison break. He performed
the crucial role of flagging down a passing car occupied by an
innocent family whose fate was then entrusted to the known killers
he had previously armed. He robbed these people at their direction,
and then guarded the victims at gunpoint while they considered what
next to do. He stood by and watched the killing, making no effort
to assist the victims before, during, or after the shooting.
Instead, he chose to assist the killers in their continuing
criminal endeavors, ending in a gun battle with the police in the
final showdown.

															Ricky Tison's behavior differs in slight details only. Like
Raymond, he intentionally brought the guns into the prison Page 481 U. S. 152 to arm the murderers. He could have foreseen that lethal force
might be used, particularly since he knew that his father's
previous escape attempt had resulted in murder. He, too,
participated fully in the kidnaping and robbery, and watched the
killing, after which he chose to aid those whom he had placed in
the position to kill, rather than their victims.

															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. The issue raised by this case is whether the Eighth Amendment
prohibits the death penalty in the intermediate case of the
defendant whose participation is major and whose mental state is
one of reckless indifference to the value of human life. Enmund does not specifically address this point. We now
take up the task of determining whether the Eighth Amendment
proportionality requirement bars the death penalty under these
circumstances.

															Like the Enmund Court, we find the state legislatures'
judgment as to proportionality in these circumstances relevant to
this constitutional inquiry. [ Footnote 4 ] The largest number of States still fall into
the two intermediate categories discussed in Enmund. Four
States authorize the death penalty in Page 481 U. S. 153 felony murder cases upon a showing of culpable mental state such
as recklessness or extreme indifference to human life. [ Footnote 5 ] Two jurisdictions require
that the defendant's participation be substantial, [ Footnote 6 ] and the statutes of at least six
more, including Arizona, take minor participation in the felony
expressly into account in mitigation of the murder. [ Footnote 7 ] These requirements significantly
overlap both in this case and in general, for the greater the
defendant's participation in the felony murder, the more likely
that he acted with reckless indifference to human life. 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, [ Footnote
8 ] and the three States which simply require some additional
aggravation before imposing the death penalty upon a felony
murderer, [ Footnote 9 ] Page 481 U. S. 154 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. 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. [ Footnote 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 428 U. S.
179 -181 (opinion of Stewart, POWELL, and STEVENS, JJ.); see also Coker v. Georgia, 433 U.S. at 433 U. S.
594 .

															Moreover, a number of state courts have interpreted Enmund to permit the imposition of the death penalty in
such aggravated felony murders. We do not approve or disapprove the
judgments as to proportionality reached on the particular facts of
these cases, but we note the apparent consensus that substantial
participation in a violent felony under circumstances likely to
result in the loss of innocent human life may justify the death
penalty even absent an "intent to kill." See, e.g., Clines v.
State, 280 Ark. 77, 84, 656 S.W.2d
684 , 687 (1983) (armed, forced entry, nighttime robbery of
private dwelling known to be occupied, plus evidence that
killing Page 481 U. S. 155 contemplated), cert. denied, 465 U.S. 1051 (1984); Deputy v. State, 500 A.2d
581 , 599-600 (Del.1985) (defendant present at scene; robbed
victims; conflicting evidence as to participation in killing), cert. pending, No. 85-6272; Ruffin v.
State, 420 So. 2d
591 , 594 (Fla.1982) (defendant present, assisted codefendant in
kidnaping, raped victim, made no effort to interfere with
codefendant's killing victim, and continued on the joint venture); People v. Davis, 95 Ill. 2d 1 ,
52, 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. denied, 464
U.S. 1001 (1983); Selvage v. State, 680
S.W.2d 17 , 22 (Tex.Cr.App.1984) (participant in jewelry store
robbery during the course of which a security guard was killed; no
evidence that defendant himself shot the guard, but he did fire a
weapon at those who gave chase); see also Allen v. State, 253 Ga. 390, 395, n. 3, 321 S.E.2d
710 , 715, n. 3 (1984) ("The result in [ Enmund v.
Florida ] does not turn on the mere fact that Enmund was
convicted of felony murder. It is important to note how attenuated
was Enmund's responsibility for the deaths of the victims in that
case"), cert. denied, 470 U.S. 1059 (1985).

															Against this backdrop, we now consider the proportionality of
the death penalty in these midrange felony murder cases for which
the majority of American jurisdictions clearly authorize capital
punishment, and for which American courts have not been nearly so
reluctant to impose death as they are in the case of felony murder simpliciter. [ Footnote
11 ] Page 481 U. S. 156 A critical facet of the individualized determination of
culpability required in capital cases is the mental state with
which the defendant commits the crime. 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. 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 . . . Clergy," would be spared. 23 Hen. 8, ch.
1, §§ 3, 4 (1531); 1 Edw. 6, ch. 12, § 10 (1547). Over time, malice
aforethought came to be inferred from the mere act of killing in a
variety of circumstances; in reaction, Pennsylvania became the
first American jurisdiction to distinguish between degrees of
murder, reserving capital punishment to "wilful, deliberate and
premeditated" killings and felony murders. 3 Pa.Laws 1794, ch.
1766, pp. 186-187 (1810). More recently, in Lockett v.
Ohio, 438 U. S. 586 (1978), the plurality opinion made clear that the defendant's
mental state was critical to weighing a defendant's culpability
under a system of guided discretion, vacating a death sentence
imposed under an Ohio statute that did not permit the sentencing
authority to take into account "[t]he absence of direct proof that
the defendant intended to cause the death of the victim." Id. at 438 U. S. 608 (opinion of Burger, C.J.); see also Eddings v. Oklahoma, 455 U. S. 104 (1982) (adopting position of Lockett plurality). In Enmund v. Florida, the Court recognized again the
importance of mental state, explicitly permitting the death penalty
in at least those cases where the felony murderer intended to kill,
and forbidding it in the case of a minor actor not shown to have
had any culpable mental state. Page 481 U. S. 157 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. Many who intend to, and do, kill are not
criminally liable at all -- those who act in self-defense or with
other justification or excuse. Other intentional homicides, though
criminal, are often felt undeserving of the death penalty -- those
that are the result of provocation. On the other hand, some
nonintentional murderers may be among the most dangerous and
inhumane of all -- the person who tortures another, not caring
whether the victim lives or dies, or the robber who shoots someone
in the course of the robbery, utterly indifferent to the fact that
the desire to rob may have the unintended consequence of killing
the victim, as well as taking the victim's property. This reckless
indifference to the value of human life may be every bit as
shocking to the moral sense as an "intent to kill." Indeed it is
for this very reason that the common law and modern criminal codes
alike have classified behavior such as occurred in this case along
with intentional murders. See, e.g., G. Fletcher,
Rethinking Criminal Law § 6.5, pp. 447-448 (1978) ("[I]n the common
law, intentional killing is not the only basis for establishing the
most egregious form of criminal homicide. . . . For example, the
Model Penal Code treats reckless killing, manifesting extreme
indifference to the value of human life,' as equivalent to
purposeful and knowing killing"). Enmund held that, when
"intent to kill" results in its logical, though not inevitable,
consequence -- the taking of human life -- the Eighth Amendment
permits the State to exact the death penalty after a careful
weighing of the aggravating and mitigating circumstances.
Similarly, we hold that the reckless disregard for human life
implicit in knowingly engaging in criminal activities known to
carry a grave risk of death represents a highly culpable mental
state, a mental state that may be taken into account in making a
capital Page 481 U. S. 158 sentencing judgment when that conduct causes its natural, though
also not inevitable, lethal result.

															The petitioners' own personal involvement in the crimes was not
minor, but rather, as specifically found by the trial court,
"substantial." Far from merely sitting in a car away from the
actual scene of the murders, acting as the getaway driver to a
robbery, each petitioner was actively involved in every element of
the kidnaping-robbery, and was physically present during the entire
sequence of criminal activity culminating in the murder of the
Lyons family and the subsequent flight. The Tisons' high level of
participation in these crimes further implicates them in the
resulting deaths. Accordingly, they fall well within the
overlapping second intermediate position which focuses on the
defendant's degree of participation in the felony.

															Only a small minority of those jurisdictions imposing capital
punishment for felony murder have rejected the possibility of a
capital sentence absent an intent to kill, and we do not find this
minority position constitutionally required. We will not attempt to
precisely delineate the particular types of conduct and states of
mind warranting imposition of the death penalty here. Rather, we
simply hold that major participation in the felony committed,
combined with reckless indifference to human life, is sufficient to
satisfy the Enmund culpability requirement. [ Footnote 12 ] The Arizona courts have
clearly found that the former exists; we now vacate the judgments
below and remand for determination of the latter in further
proceedings not inconsistent with this opinion. Cabana v.
Bullock, 474 U. S. 376 (1986). It is so ordered. Page 481 U. S. 159 * Together with Tison v. Arizona, also on certiorari to
the same court ( see this Court's Rule 19.4).

															[ Footnote 1 ]

															Arizona has recodified and broadened its felony murder statute
to include killings occurring during the course of a variety of sex
and narcotics offenses and escape. See Ariz.Rev.Stat.Ann.
§§ 13-1105(A)(2), (B) (Supp.1986). The accomplice liability
provisions of Arizona law have been modernized and recodified also. See Ariz.Rev.Stat.Ann. §§ 13-301, 13-303(A)(3), (B)(2)
(1978 and Supp.1986). Neither change would have diminished Ricky
Tison's or Raymond Tison's legal accountability for the deaths that
occurred.

															[ Footnote 2 ]

															Petitioners devote a substantial portion of their brief on the
merits to arguing that Arizona has given an unconstitutionally
broad construction to the aggravating factors in its capital
sentencing statute. See Godfrey v. Georgia, 446 U.
S. 420 (1980). This Court granted certiorari on the
following question:

															"Is the December 4, 1984, decision of the Arizona Supreme Court
to execute petitioners in conflict with the holding of Enmund
v. Florida, 458 U. S. 782 (1982), where --
in words of the Arizona Supreme Court -- petitioners"

															"did not specifically intend that the [victims] die, . . . did
not plot in advance that these homicides would take place, or . . .
did not actually pull the triggers on the guns which inflicted the
fatal wounds. . . . "

															Pet. for Cert. 2. In our view, the question presented does not
fairly encompass an attack on Arizona's construction of its
aggravating factors, and we express no view on that subject. See this Court's Rule 21.1(a).

															[ Footnote 3 ]

															Vermont fell into none of these categories. Vermont limited the
death penalty to defendants who commit a second unrelated murder or
murder a correctional officer. See Enmund v. Florida, 458 U. S. 782 , 458 U. S. 791 ,
n. 11 (1982).

															[ Footnote 4 ]

															The state statutes discussed in Enmund v. Florida are
largely unchanged. Mississippi and Nevada have modified their
statutes to require a finding that the defendant killed, attempted
to kill, or intended to kill, or that lethal force be employed,
presumably in light of Enmund. Miss.Code Ann. §
99-19-101(7) (Supp.1986); Nev.Rev.Stat. §§ 200.030(1)(b),
200.030(4), 200.033(4)(a) (b) (1985). New Jersey has joined the
ranks of the States imposing capital punishment in intentional
murders, but not felony murders. N.J.Stat.Ann. §§ 2C-11-3a(a), (c)
(West Supp.1986). Oregon now authorizes capital punishment for
felony murders when the defendant intends to kill. Ore.Rev.Stat. §§
163.095(d), 163.115(1)(b) (1985). Vermont has further narrowed the
circumstances in which it authorizes capital punishment: now only
the murderers of correctional officers may be subject to death.
Vt.Stat.Ann., Tit. 13, §§ 2303(b), (c) (Supp.1986).

															[ Footnote 5 ]

															Ark.Stat.Ann. § 41-1501(1)(a) (1977 and Supp.1985); Del. Code
Ann., Tit. 11, §§ 636(a)(2), (b) (1979); Ky.Rev.Stat. §
507.020(1)(b) (1985); Ill.Rev.Stat., ch. 38, �� 9-1(a)(3),
9-1(b)(6) (1986).

															[ Footnote 6 ]

															Conn.Gen.Stat. § 53a-46a(g)(4) (1985); 49 U.S.C.App. §
1473(c)(6)(D).

															[ Footnote 7 ]

															Ariz.Rev.Stat.Ann. § 13-703(G)(3) (1978 and Supp.1986);
Colo.Rev.Stat. § 16-11-103(5)(d) (1978 and Supp.1985); Ind.Code §
35-50-2-9(c)(4) (Supp.1986); Mont.Code Ann. § 46-18-304(6) (1985);
Neb.Rev.Stat. § 29-2523(2)(e) (1985); N.C.Gen.Stat. §
15A-2000(f)(4) (1983).

															[ Footnote 8 ]

															Cal.Penal Code Ann. §§ 189, 190.2(a)(17) (West Supp.1987);
Fla.Stat. §§ 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. §§
39-2-202(a), 39-2-203(i)(7) (1982); Wyo.Stat. §§ 6-2-101,
6-2-102(h)(iv) (1983).

															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 , 672 P.2d 862 (1983), construed its capital murder statute to require a finding
of intent to kill. Post at 481 U. S. 175 ,
n. 13. But the California Supreme Court only did so in light of
perceived federal constitutional limitations stemming from our
then-recent decision in Enmund. See Carlos v. Superior
Court, supra, at 147-152, 672 P.2d at 873-877.

															[ Footnote 9 ]

															Idaho Code § 19-2515(g) (Supp.1986); Okla.Stat., Tit. 21, §
701.12 (1981); S.D.Codified Laws § 23A-27A-1 (Supp.1986).

															[ Footnote 10 ]

															Ala.Code §§ 13A-2-23, 13A-6-40(a)(2), (b), 13A-5-51,
13A-6-2(a)(2) (1982 and Supp.1986); La.Rev.Stat.Ann. § 14:30(A)(1)
(West 1986); Miss.Code Ann. § 99-19-101(7) (Supp.1986);
Nev.Rev.Stat. §§ 200.030(1)(b), 200.030(4), 200.033(4)(a) (b)
(1986); N.J.Stat.Ann. §§ 2C:11-3a(a), (c) (West Supp.1986) (felony
murder not capital); N.M.Stat.Ann. §§ 30-2-1 (A)(2), 31-20A-5
(1984); Ohio Rev.Code Ann. §§ 2903.01(B) (D), 2929.02 (A),
2929.04(A)(7) (1982); Ore.Rev.Stat. §§ 163.095(d), 163.115(1)(b)
(1985); Tex.Penal Code Ann. §§ 19.02(a), 19.03(a)(2) (1974 and
Supp.1986); Utah Code Ann. § 76-5-202(1) (Supp.1986); Va.Code §
18.2-31 (Supp.1986).

															[ Footnote 11 ]

															The fact that the Arizona Supreme Court purported to find
"intent to kill" before affirming death sentences after Enmund provides no support for the proposition that it
ordinarily has considered major participation in a violent felony
resulting in death, combined with a reckless indifference towards
human life, insufficient to support a capital sentence. Cf.
post at 481 U. S.
178 -179, and n. 17. The Arizona Supreme Court has made
formal findings of "intent to kill" to comply with the perceived
"dictate of Enmund. " 142 Ariz. 464, 456, 690 P.2d
755 , 758 (1984). In fact, the standard applied by the Arizona
Supreme Court was not a classic intent one, but rather was whether
"a defendant contemplated, anticipated, or intended that lethal
force would or might be used." State v. Emery, 141 Ariz.
549, 554, 688 P.2d 175 , 180 (1984). As
we have shown, supra at 481 U. S. 150 ,
this standard amounted to little more than a requirement that
killing be foreseeable.

															[ Footnote 12 ]

															Although we state these two requirements separately, they often
overlap. 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. 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.

															JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, and with whom
JUSTICE BLACKMUN and JUSTICE STEVENS join as to Parts I through
IV-A, dissenting.

															The murders that Gary Tison and Randy Greenawalt committed
revolt and grieve all who learn of them. When the deaths of the
Lyons family and Theresa Tyson were first reported, many in Arizona
erupted "in a towering yell" for retribution and justice. [ Footnote 2/1 ] Yet Gary Tison, the central
figure in this tragedy, the man who had his family arrange his and
Greenawalt's escape from prison, and the man who chose, with
Greenawalt, to murder this family while his sons stood by, died of
exposure in the desert before society could arrest him and bring
him to trial. 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. Because our precedents and our
Constitution compel a different answer than the one the Court
reaches today, I dissent. I Under the felony murder doctrine, a person who commits a felony
is liable for any murder that occurs during the commission
of that felony, regardless of whether he or she commits, attempts
to commit, or intended to commit that murder. The doctrine thus
imposes liability on felons for killings committed by cofelons
during a felony. This curious doctrine is a living fossil from a
legal era in which all felonies were punishable by death; in those
circumstances, the state of mind of the felon with respect to the
murder was understandably superfluous, because he or she could be
executed simply for intentionally committing the felony. [ Footnote 2/2 ] Today, in Page 481 U. S. 160 most American jurisdictions and in virtually all European and
Commonwealth countries, a felon cannot be executed for a murder
that he or she did not commit or specifically intend or attempt to
commit. In some American jurisdictions, however, the authority to
impose death in such circumstances still persists. Arizona is such
a jurisdiction.

															The proceedings below illustrate how, under the felony murder
doctrine, a defendant may be held liable and sentenced to death for
a murder that he or she neither committed nor intended to commit.
The prosecutor argued to the jury that it did not matter that Gary
Tison and Randy Greenawalt had caused the killings, because, under
the felony murder rule, the Tisons could nonetheless be found
legally responsible for those killings. App. 173-174, 185, 191. The
trial judge's instructions were consistent with the prosecutor's
argument. Id. at 179, 218-219. In sentencing petitioners,
the trial court did not find that they had killed, attempted to
kill, or intended to kill anyone. Id. at 280-289.
Nevertheless, the court upheld the jury's verdict that Ricky and
Raymond Tison were liable under the felony murder doctrine for the
murders that their father and Randy Greenawalt had committed.
Furthermore, the court found as an aggravating factor against
petitioners, the "heinous, cruel and depraved manner" in which
Gary Tison and Randy Greenawalt carried out the murders. Id. at 282-283. As a result, the court imposed the death
sentence. [ Footnote 2/3 ] Page 481 U. S. 161 The Arizona Supreme Court affirmed. It held that the Tisons

															"did not specifically intend that the Lyons and Theresa Tyson
die, that they did not plot in advance that these homicides would
take place, [and] that they did not actually pull the triggers on
the guns which inflicted the fatal wounds. . . ." State v. Tison, 129 Ariz. 526, 545, 633 P.2d 335 ,
354 (1981). The court found these facts to be "of little
significance," however, because

															"the nonparticipation in the shooting was not controlling, since
both [brothers] took part in the robbery, the kidnapping, and were
present assisting in the detention of the Lyonses and Theresa Tyson
while the homicides were committed." State v. Tison, 129 Ariz. 546, 556, 633 P.2d 355 ,
365 (1981). Thus, while the Arizona courts acknowledged that
petitioners had neither participated in the shootings nor intended
that they occur, those courts nonetheless imposed the death
sentence under the theory of felony murder.

															After the decision of the Arizona Supreme Court, this Court
addressed, in Enmund v. Florida, 458 U.
S. 782 (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." Id. at 458 U. S. 787 .
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. Enmund did not shoot anyone, and there
was nothing in the record concerning Enmund's mental state with
regard to the killings, but the Florida Supreme Court had held him
strictly liable for the killings under the felony murder doctrine. Enmund v. State, 399 So. 2d
1362 , 1369 (1981). Page 481 U. S. 162 In reversing the Florida Supreme Court, this Court took note of
the "overwhelming evidence" of "[s]ociety's rejection of the death
penalty for accomplice liability in felony murders." 458 U.S. at 458 U. S. 794 .
The Court observed that, in imposing the death penalty upon Enmund,
the Florida Supreme Court had failed to focus on "Enmund's own
conduct . . . [and] on his culpability." Id. at 458 U. S. 798 (emphasis in original). The Court then explained, and rejected, the
felony murder doctrine as a theory of capital culpability.

															"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. This was
impermissible under the Eighth Amendment." Ibid. (emphasis added). Enmund obviously cast considerable doubt on the
constitutionality of the death sentences imposed on petitioners in
this case. Following the Enmund decision, petitioners
applied to the Arizona Supreme Court for postconviction review.
They argued that Enmund prevented the State from imposing
the death sentence because they, like Enmund, were accomplices to a
felony in which killings occurred that they neither committed nor
intended to commit. Despite its earlier holding that petitioners
had not killed or intended to kill anyone, the Arizona Supreme
Court again upheld the Tisons' sentences. First, the court defined
intent broadly, adopting a definition that equates "intent to kill"
with the foreseeability of harm:

															"Intend [ sic ] to kill includes the situation in which
the defendant intended, contemplated, or anticipated that lethal
force would or might be used or that life would or might be taken
in accomplishing the underlying felony."

															142 Ariz. 454, 456, 690 P.2d
755 , 757 (1984). The court then reviewed, in a passage this
Court quotes at length, ante at 481 U. S.
144 -145, petitioners' conduct during the Page 481 U. S. 163 escape and subsequent flight. The court did not attempt to link
any of petitioners' statements or actions to the decision to kill
the family, nor did it make any findings concerning petitioners'
mental states at the time of the shootings. Instead, the court
found that each petitioner "could [have] anticipate[d] the use of
lethal force during this attempt to flee confinement." 142 Ariz.
446, 448, 690 P.2d
747 , 749 (1984); 142 Ariz., at 456, 690 P.2d at 757. 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.

															The Arizona Supreme Court thus attempted to comply with Enmund by making a finding as to petitioners' mental
state. The foreseeability standard that the court applied was
erroneous, however, because

															"the possibility of bloodshed is inherent in the commission of
any violent felony, and this possibility is generally foreseeable
and foreseen." Ante at 481 U. S. 151 .
Under the lower court's standard, any participant in a violent
felony during which a killing occurred, including Enmund, would be
liable for the death penalty. This Court therefore properly rejects
today the lower court's misguided attempt to preserve its earlier
judgment by equating intent with foreseeable harm. Ante at 481 U. S.
150 -151. In my view, this rejection completes the
analytic work necessary to decide this case, and, on this basis,
petitioners' sentences should have been vacated, and the judgment
reversed.

															The Court has chosen instead to announce a new substantive
standard for capital liability: a defendant's

															"major participation in the felony committed, combined with
reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement." Ante at 481 U. S. 158 .
The Court then remands the case for a determination by the state
court whether petitioners are culpable under this new standard.
Nevertheless, the Court observes, in dictum, that "the record would
support a finding of the culpable mental state of Page 481 U. S. 164 reckless indifference to human life." Ante at 481 U. S. 151 ; see also ante at 481 U. S. 152 .
("These facts . . . would clearly support a finding that [both
sons] subjectively appreciated that their acts were likely to
result in the taking of innocent life").

															I join no part of this. First, the Court's dictum that its new
category of mens rea is applicable to these petitioners is
not supported by the record. Second, even assuming petitioners may
be so categorized, objective evidence and this Court's Eighth
Amendment jurisprudence demonstrate that the death penalty is
disproportionate punishment for this category of defendants.
Finally, the fact that the Court reaches a different conclusion is
illustrative of the profound problems that continue to plague
capital sentencing. II The facts on which the Court relies are not sufficient, in my
view, to support the Court's conclusion that petitioners acted with
reckless disregard for human life. [ Footnote 2/4 ] But even if they Page 481 U. S. 165 were, the Court's decision to restrict its vision to the limited
set of facts that "the Arizona Supreme Court has given . . . to
us," ante at 481 U. S. 151 ,
is improper. [ Footnote 2/5 ] By
limiting itself to the facts the lower court found relevant to the
foreseeability standard, this Court insulates itself from other
evidence in the record directly relevant to the new standard
articulated today. This evidence suggests that the question of
petitioners' mental states with respect to the shootings is very
much an open one, to be decided only after a thorough evidentiary
hearing. I therefore stress that nothing in the Court's opinion
abrogates the State's responsibility independently and fairly to
consider all the relevant evidence before applying the Court's new
standard. See Cabana v. Bullock, 474 U.
S. 376 , 474 U. S. 391 (1986) ("Considerations of federalism and comity counsel respect
for the ability of state courts to carry out their role as the
primary protectors of the rights of criminal defendants").

															The evidence in the record overlooked today regarding
petitioners' mental states with respect to the shootings is not
trivial. For example, while the Court has found that petitioners
made no effort prior to the shooting to assist the victims, the
uncontradicted statements of both petitioners are Page 481 U. S. 166 that, just prior to the shootings, they were attempting to find
a jug of water to give to the family. App. 20-21, 39-41, 74-75,
109. While the Court states that petitioners were on the scene
during the shooting, and that they watched it occur, Raymond stated
that he and Ricky were still engaged in repacking the Mazda after
finding the water jug when the shootings occurred. Id. at
21, 75. 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. Neither stated that they
anticipated that the shootings would occur, or that they could have
done anything to prevent them or to help the victims afterward.
[ Footnote 2/6 ] Both, however,
expressed feelings of surprise, helplessness, and regret. This
statement of Raymond's is illustrative:

															"Well, I just think you should know, when we first came into
this, we had an agreement with my dad that nobody would get hurt,
because we [the brothers] wanted no one hurt. And when this
[killing of the kidnap victims] came about, we were not expecting
it. And it took us by surprise as much as it took the family [the
victims] by surprise, because we were not expecting this to happen.
And I feel bad about it happening. I wish we could [have done]
something to stop it, but by the time it happened, it was too late
to stop it. And it's just something Page 481 U. S. 167 we are going to live with the rest of our lives. It will always
be there."

															142 Ariz., at 462, 690 P.2d at 763; see also App. 242.
[ Footnote 2/7 ] Page 481 U. S. 168 In light of this evidence, it is not surprising that the Arizona
Supreme Court rested its judgment on the narrow ground that
petitioners could have anticipated that lethal force might be used
during the escape, or that the state probation officer -- who
reviewed at length all the facts concerning the sons' mental states
-- did not recommend that the death sentence be imposed. 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. See Cabana v. Bullock, 474 U.S. at 474 U. S.
397 -407 (BLACKMUN, J., dissenting); id. at 474 U. S.
407 -408 (STEVENS, J., dissenting). III Notwithstanding the Court's unwarranted observations on the
applicability of its new standard to this case, the basic flaw in
today's decision is the Court's failure to conduct the sort of
proportionality analysis that the Constitution and past cases
require. Creation of a new category of culpability is not enough to
distinguish this case from Enmund. The Court must also
establish that death is a proportionate punishment for individuals
in this category. 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
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 (1983); Enmund v. Florida, 458 U.
S. 782 (1982); Coker v. Georgia, 433 U.
S. 584 (1977), but instead offers two reasons in support
of its view. A One reason the Court offers for its conclusion that death is
proportionate punishment for persons falling within its new Page 481 U. S. 169 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." Ante at 481 U. S. 157 .
To illustrate that intention cannot be dispositive, the Court
offers as examples

															"the person who tortures another not caring whether the
victim lives or dies, or the robber who shoots someone in
the course of the robbery, utterly indifferent to the fact that the
desire to rob may have the unintended consequence of killing the
victim as well as taking the victim's property." Ibid. (emphasis added). 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. [ Footnote 2/8 ] 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.
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. Thus, although some of the
"most culpable and dangerous of murderers" may be those who killed
without specifically intending to kill, it is considerably more
difficult to apply that rubric convincingly Page 481 U. S. 170 to those who not only did not intend to kill, but who also have
not killed [ Footnote 2/9 ]

															It is precisely in this context -- where the defendant has not
killed -- that a finding that he or she nevertheless intended to
kill seems indispensable to establishing capital culpability. 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. The
applicability of the death penalty therefore turns entirely on the
defendant's mental state with regard to an act committed by
another. Factors such as the defendant's major participation in the
events surrounding the killing or the defendant's presence at the
scene are relevant insofar as they illuminate the defendant's
mental state with regard to the killings. They cannot serve,
however, as independent grounds for imposing the death penalty.

															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 difference lies in the
nature of the choice each has made. The reckless actor has not chosen to bring about the killing in the way the
intentional actor has. The person who chooses to Page 481 U. S. 171 act recklessly and is indifferent to the possibility of fatal
consequences often deserves serious punishment. But because that
person has not chosen to kill, his or her moral and criminal
culpability is of a different degree than that of one who killed or
intended to kill.

															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." Morissette v. United States, 342 U. S. 246 , 342 U. S. 250 (1952). To be faithful to this belief, which is "universal and
persistent in mature systems of law," ibid., the criminal
law must ensure that the punishment an individual receives conforms
to the choices that individual has made. [ Footnote 2/10 ] Differential punishment of reckless and
intentional actions is therefore essential if we are to retain "the
relation between criminal liability and moral culpability" on which
criminal justice depends. People v.
Washington, 62 Cal. 2d
777 , 783, 402 P.2d 130, 134 (1965) (opinion of Traynor, C.J.).
The State's ultimate sanction -- if it is ever to be used -- must
be reserved for those whose culpability is greatest. Cf.
Enmund, 458 U.S. at 458 U. S. 798 ("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 , 438 U. S. 444 (1978). Distinguishing intentional from reckless action in assessing
culpability is particularly important in felony murder cases.
JUSTICE WHITE stressed the importance of this distinction in Lockett v. Ohio, 438 U. S. 586 (1978), a felony murder case in Page 481 U. S. 172 which the petitioner's death sentence was vacated on other
grounds.

															"[S]ociety has made a judgment, which has deep roots in the
history of the criminal law . . . distinguishing at least for
purpose of the imposition of the death penalty between the
culpability of those who acted with and those who acted without a
purpose to destroy life."

															" * * * *" "[T]he type of conduct which Ohio would punish by death requires
at most the degree of mens rea defined by the ALI Model
Penal Code (1962) as recklessness: conduct undertaken with
knowledge that death is likely to follow. Since I would hold that
death may not be inflicted for killings consistent with the Eighth
Amendment without a finding that the defendant engaged in conduct
with the conscious purpose of producing death, these
sentences must be set aside." Id. at 438 U. S.
626 -628 (emphasis added; footnotes omitted).

															In Enmund, the Court explained at length the reasons a
finding of intent is a necessary prerequisite to the imposition of
the death penalty. 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 retribution -- which this Court
has accepted as justifications for the death penalty. Enmund,
supra, at 458 U. S. 798 ,
citing Gregg v. Georgia, 428 U. S. 153 , 428 U. S. 183 (1976). If it does not so contribute, it

															"'is nothing more than the purposeless and needless imposition
of pain and suffering' and hence an unconstitutional
punishment." Enmund, supra, at 458 U. S. 798 ,
quoting Coker v. Georgia, 433 U.S. at 433 U. S. 592 .
Enmund's lack of intent to commit the murder -- rather than the
lack of evidence as to his mental state -- was the decisive factor
in the Court's decision that the death penalty served neither of
the two purposes. With regard to deterrence, the Court was Page 481 U. S. 173 "quite unconvinced . . . 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.
Instead, it seems likely that 'capital punishment can serve as a
deterrent only when murder is the result of premeditation and
deliberation.' . . ." Enmund, supra, at 458 U. S.
798 -799. [ Footnote
2/11 ] As for retribution, the Court again found that Enmund's
lack of intent, together with the fact that he did not kill the
victims, was decisive.

															"American criminal law has long considered a defendant's
intention -- and therefore his moral guilt -- to be critical to the
'degree of [his] criminal culpability.'"

															458 U.S. at 458 U. S. 800 (citation omitted). The Court concluded that

															"[p]utting Enmund to death to avenge two killings that he did
not commit and had no intention of committing or causing does not
measurably contribute to the retributive end of ensuring that the
criminal gets his just deserts." Id. at 458 U. S. 801 .
Thus, in Enmund, the Court established that a finding of
an intent to kill was a constitutional prerequisite for the
imposition of the death penalty on an accomplice who did not kill.
The Court has since reiterated that

															" Enmund . . . imposes a categorical rule: a person who
has not in fact killed, attempted to kill, or intended that a
killing take place or that lethal force be used may not be
sentenced to death." Cabana Page 481 U. S. 174 v. Bullock, 474 U.S. at 474 U. S. 386 .
The Court's decision today to approve the death penalty for
accomplices who lack this mental state is inconsistent with Enmund and with the only justifications this Court has put
forth for imposing the death penalty in any case. B The Court's second reason for abandoning the intent requirement
is based on its survey of state statutes authorizing the death
penalty for felony murder, and on a handful of state cases.
[ Footnote 2/12 ] On this basis,
the Court concludes that

															"[o]nly Page 481 U. S. 175 a small minority of those jurisdictions imposing capital
punishment for felony murder have rejected the possibility of
a capital sentence absent an intent to kill, and we do not find
this minority position constitutionally required." Ante at 481 U. S. 158 (emphasis added). The Court would thus have us believe that "the
majority of American jurisdictions clearly authorize capital
punishment" in cases such as this. Ante at 481 U. S. 155 .
This is not the case. First, the Court excludes from its survey
those jurisdictions that have abolished the death penalty and those
that have authorized it only in circumstances different from those
presented here. When these jurisdictions are included, and are
considered with those jurisdictions that require a finding of
intent to kill in order to impose the death sentence for felony
murder, one discovers that approximately three-fifths of American
jurisdictions do not authorize the death penalty for a
nontriggerman absent a finding that he intended to kill. Thus,
contrary to the Court's implication that its view is consonant with
that of "the majority of American jurisdictions," ibid., the Court's view is itself distinctly the minority position.
[ Footnote 2/13 ] Page 481 U. S. 176 Second, it is critical to examine not simply those jurisdictions
that authorize the death penalty in a given circumstance, but those
that actually impose it. 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. Furman
v. Georgia, 408 U. S. 238 (1972). Thus, the Court in Enmund examined the relevant
statistics on the imposition of the death penalty for accomplices
in a felony murder. The Court found that, of all executions between
1954 and 1982, there were " only 6 cases out of 362 where a
nontriggerman felony murderer was executed. All six executions took
place in 1955. " 458 U.S. at 458 U. S. 794 (emphasis added). This evidence obviously militates against
imposing the death penalty on petitioners as powerfully as it did
against imposing it on Enmund. [ Footnote 2/14 ] Page 481 U. S. 177 The Court in Enmund also looked at the imposition of
the death penalty for felony murder within Florida, the State that
had sentenced Enmund. Of the 45 murderers then on death row, 36 had
been found to have "intended" to take life, and 8 of the 9 for
which there was no finding of intent had been the triggerman. Thus,
in only one case -- Enmund -- had someone (such as the
Tisons) who had neither killed nor intended to kill received the
death sentence. Finally, the Court noted that in no Commonwealth or
European country could Enmund have been executed, since all have
either abolished or never employed a felony murder doctrine. Id. at 458 U. S.
796 -797, n. 22. [ Footnote
2/15 ]

															The Court today neither reviews nor updates this evidence. Had
it done so, it would have discovered that, even Page 481 U. S. 178 including the 65 executions since Enmund, "[t]he fact remains that we are not aware of a single person
convicted of felony murder over the past quarter century who did
not kill or attempt to kill, and did not intend the death of the
victim, who has been executed. . . ."

															458 U.S. at 458 U. S. 796 .
[ Footnote 2/16 ] Of the 64 persons
on death row in Arizona, all of those who have raised and lost an Enmund challenge in the Arizona Supreme Court have been
found either to have killed or to have specifically intended to
kill. [ Footnote 2/17 ] Thus, like Enmund, the Tisons' sentence Page 481 U. S. 179 appears to be an aberration within Arizona itself, as well as
nationally and internationally. The Court's objective evidence that
the statutes of roughly 20 States appear to authorize the death
penalty for defendants in the Court's new category is therefore an
inadequate substitute for a proper proportionality analysis, and is
not persuasive evidence that the punishment that was
unconstitutional for Enmund is constitutional for the
Tisons. C The Court's failure to examine the full range of relevant
evidence is troubling, not simply because of what that examination
would have revealed, but because, until today, such an examination
has been treated as constitutionally required whenever the Court
undertakes to determine whether a given punishment is
disproportionate to the severity of a given crime. Enmund is only one of a series of cases that have framed the
proportionality inquiry in this way. See, e.g., Coker v.
Georgia, 433 U. S. 584 (1977). In the most recent such case, Solem v. Helm, 463 U. S. 277 , 463 U. S. 292 (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 Page 481 U. S. 180 imposed for commission of the same crime in other
jurisdictions."

															(Emphasis added.) By addressing, at best, only the first of
these criteria, the Court has ignored most of the guidance this
Court has developed for evaluating the proportionality of
punishment.

															Such guidance is essential in determining the constitutional
limits on the State's power to punish. These limits must be defined
with care, not simply because the death penalty is involved, but
because the social purposes that the Court has said justify the
death penalty -- retribution and deterrence -- are justifications
that possess inadequate self-limiting principles. As Professor
Packer observed, under a theory of deterrence, the state may
justify such punishments as "boiling people in oil; a slow and
painful death may be thought more of a deterrent to crime than a
quick and painless one." Packer, Making the Punishment Fit the
Crime, 77 Harv.L.Rev. 1071, 1076 (1964). [ Footnote 2/18 ] Retribution, which has as its core
logic Page 481 U. S. 181 the crude proportionality of "an eye for an eye," has been
regarded as a constitutionally valid basis for punishment only when
the punishment is consistent with an "individualized consideration"
of the defendant's culpability, Lockett v. Ohio, 438 U.S.
at 438 U. S. 605 ,
and when "the administration of criminal justice" works to
"channe[l]" society's "instinct for retribution." Furman v.
Georgia, 408 U.S. at 408 U. S. 308 (Stewart, J., concurring). Without such channeling, a State could
impose a judgment of execution by torture as appropriate
retribution for murder by torture. [ Footnote 2/19 ] Thus, under a simple theory either of
deterrence or retribution, unfettered by the Constitution, results
disturbing to civil sensibilities and inconsistent with "the
evolving standards of decency" in our society become rationally
defensible. Cf. Trop v. Dulles, 356 U. S.
86 , 356 U. S. 101 (1958).

															The Framers provided in the Eighth Amendment the limiting
principles otherwise absent in the prevailing theories of
punishment. One such principle is that the States may not impose
punishment that is disproportionate to the severity of Page 481 U. S. 182 the offense or to the individual's own conduct and culpability.
Because the proportionality inquiry in this case overlooked
evidence and considerations essential to such an inquiry, it is not
surprising that the result appears incongruous. Ricky and Raymond
Tison are similarly situated with Earl Enmund in every respect that
mattered to the decision in Enmund. Like Enmund, the
Tisons neither killed nor attempted or intended to kill anyone.
Like Enmund, the Tisons have been sentenced to death for the
intentional acts of others which the Tisons did not expect, which
were not essential to the felony, and over which they had no
control. Unlike Enmund, however, the Tisons will be the first
individuals in over 30 years to be executed for such behavior.

															I conclude that the proportionality analysis and result in this
case cannot be reconciled with the analyses and results of previous
cases. On this ground alone, I would dissent. But the fact that
this Court's death penalty jurisprudence can validate different
results in analytically indistinguishable cases suggests that
something more profoundly disturbing than faithlessness to
precedent is at work in capital sentencing. IV In 1922, "five negroes who were convicted of murder in the first
degree and sentenced to death by the Court of the State of
Arkansas" appealed to this Court from an order of the District
Court dismissing their writ of habeas corpus. Moore v.
Dempsey, 261 U. S. 86 , 261 U. S. 87 (1923). The crux of their appeal was that they

															"were hurried to conviction under the pressure of a mob, without
any regard for their rights and without according to them due
process of law." Ibid. In reversing the order, Justice Holmes stated the
following for the Court:

															"It certainly is true that mere mistakes of law in the course of
a trial are not to be corrected [by habeas corpus]. But if the case
is that the whole proceeding is a mask -- that counsel, jury, and
judge were swept to the fatal end by an irresistible wave of public
passion, and Page 481 U. S. 183 that the State Courts failed to correct the wrong, neither
perfection in the machinery for correction nor the possibility that
the trial court and counsel saw no other way of avoiding an
immediate outbreak of the mob can prevent this Court from securing
to the petitioners their constitutional rights." Id. at 261 U. S.
91 . A In Furman v. Georgia, supra, this Court concluded that
the State's procedural machinery was so imperfect that imposition
of the death penalty had become arbitrary, and therefore
unconstitutional. A scant four years later, however, the Court
validated Georgia's new machinery, and, in 1977, executions
resumed. In this case, the State appears to have afforded
petitioners all of the procedures that this Court has deemed
sufficient to produce constitutional sentencing decisions. Yet in
this case, as in Moore, "perfection in the [State's]
machinery for correction" has not secured to petitioners their
constitutional rights. So rarely does any State (let alone any
Western country other than our own) ever execute a person who
neither killed nor intended to kill that "these death sentences are
cruel and unusual in the same way that being struck by lightning is
cruel and unusual." Furman v. Georgia, supra, at 408 U. S. 309 (Stewart, J., concurring). This case thus demonstrates, as Furman also did, that we have yet to achieve a system
capable of "distinguishing the few cases in which the [death
penalty] is imposed from the many cases in which it is not." 408
U.S. at 408 U. S. 313 (WHITE, J., concurring).

															What makes this a difficult case is the challenge of giving
substantive content to the concept of criminal culpability. Our
Constitution demands that the sentencing decision itself, and not
merely the procedures that produce it, respond to the reasonable
goals of punishment. But the decision to execute these petitioners,
like the state courts' decisions in Moore, and like other
decisions to kill, appears responsive Page 481 U. S. 184 less to reason than to other, more visceral, demands. The urge
to employ the felony murder doctrine against accomplices is
undoubtedly strong when the killings stir public passion and the
actual murderer is beyond human grasp. And an intuition that sons
and daughters must sometimes be punished for the sins of the father
may be deeply rooted in our consciousness. [ Footnote 2/20 ] Yet punishment that conforms more
closely to such retributive instincts than to the Eighth Amendment
is tragically anachronistic in a society governed by our
Constitution. B This case thus illustrates the enduring truth of Justice
Harlan's observation that the tasks of identifying

															"those characteristics of criminal homicides and their
perpetrators which call for the death penalty, and [of]
express[ing] these characteristics in language which can be fairly understood and applied by the sentencing authority
appear to be . . . beyond present human ability." McGautha v. California, 402 U.
S. 183 , 402 U. S. 204 (1971) (emphasis added). The persistence of doctrines (such as
felony murder) that allow excessive discretion in apportioning
criminal culpability and of decisions (such as today's) that do not
even attempt "precisely [to] delineate the particular types of
conduct and states of mind warranting imposition of the death
penalty," ante at 481 U. S. 158 , demonstrates that this Court has still
not articulated rules that will ensure that capital sentencing
decisions conform to the substantive principles of the Eighth
Amendment. Arbitrariness continues so to infect both the procedure
and substance of capital sentencing that any decision to impose
the Page 481 U. S. 185 death penalty remains cruel and unusual. For this reason, as
well as for the reasons expressed in Gregg v. Georgia, 428
U.S. at 428 U. S. 227 ,
I adhere to my view that the death penalty is in all circumstances
cruel and unusual punishment prohibited by the Eighth and
Fourteenth Amendments, and dissent.

															[ Footnote 2/1 ]

															App. 297 (quoting Paul Dean in the Arizona Republic, Aug. 16,
1978).

															[ Footnote 2/2 ]

															As explained in the Commentaries on the Model Penal Code:

															"At common law, all felonies were punishable by death. 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 primary use of the felony murder
rule at common law therefore was to deal with a homicide that
occurred in furtherance of an attempted felony that failed. Since
attempts were punished as misdemeanors, . . . the use of the felony
murder rule allowed the courts to punish the actor in the same
manner as if his attempt had succeeded. Thus, a conviction for
attempted robbery was a misdemeanor, but a homicide committed in
the attempt was murder and punishable by death."

															ALI, Model Penal Code Commentaries § 210.2, p. 31, n. 74
(Off.Draft 1980).

															[ Footnote 2/3 ]

															As the Court notes, ante at 481 U. S. 146 ,
n. 2, it has expressed no view on the constitutionality of
Arizona's decision to attribute to petitioners as an aggravating
factor the manner in which other individuals carried out the
killings. 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 , 438 U. S. 605 (1978). 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. Godfrey v.
Georgia, 446 U. S. 420 (1980).

															[ Footnote 2/4 ]

															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. Each of petitioners' actions
was perfectly consistent with, and indeed necessary to, the felony
of stealing a car in order to continue the flight from prison.
Nothing in the record suggests that any of their actions were
inconsistent with that aim. 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 court based its
finding of aggravating circumstances in part "on the senselessness
of the murders," and stated that:

															"It was not essential to the defendants' continuing evasion of
arrest that these persons were murdered. 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."

															App. 283. Thus the Court's findings about petitioners' mental
states regarding the murders are based solely on inferences from
petitioners' participation in the underlying felonies. Their
decision to provide arms for and participate in a prison breakout
and escape may support the lower court's finding that they should
have anticipated that lethal force might be used during the
breakout and subsequent flight, but it does not support the Court's
conclusions about petitioners' mental states concerning the
shootings that actually occurred.

															[ Footnote 2/5 ]

															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. On rehearing, the Arizona
Supreme Court did make a finding that petitioners could have
anticipated that lethal force would be used during the breakout or
subsequent flight. In that regard, it referred to facts concerning
the breakout and escape. See ante at 481 U. S.
143 -145. 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. Given the question it had chosen to address, evidence
regarding petitioners' actual mental states with regard to the
shooting was superfluous.

															[ Footnote 2/6 ]

															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 481 U. S. 152 ,
takes license with the facts found by the Arizona Supreme Court.
That court did not say whether petitioners did anything to help the
victims following the shooting, nor did it make any findings that
would lead one to believe that something could have been done to
assist them. The lower court merely stated that petitioners did not
"disassociate" themselves from their father and Greenawalt after
the shooting. Ante at 481 U. S. 145 (citation omitted).

															[ Footnote 2/7 ]

															These expressions are consistent with other evidence about the
sons' mental states that this Court, like the lower courts, has
neglected. Neither son had a prior felony record. App. 233-234.
Both lived at home with their mother, and visited their father,
whom they believed to be "a model prisoner," each week. See Brief for Petitioners 3 (citing Tr. of Mar. 14, 1979,
hearing). They did not plan the breakout or escape; rather their
father, after thinking about it himself for a year, mentioned the
idea to Raymond for the first time one week before the breakout,
and discussed with his sons the possibility of having them
participate only the day before the breakout. App. 50-51, 91. The
sons conditioned their participation on their father's promise that
no one would get hurt; during the breakout, their father kept his
word. The trial court found that the murders their father later
committed were senseless and unnecessary to the felony of stealing
a car in which the sons participated; and just prior to the
shootings the sons were retrieving a water jug for the family.
Given these circumstances, the sons' own testimony that they were
surprised by the killings, and did not expect them to occur,
appears more plausible than the Court's speculation that they
"subjectively appreciated that their activities were likely to
result in the taking of innocent life." Ante at 481 U. S. 152 .
The report of the psychologist, who examined both sons, also
suggests that they may not have appreciated the consequences of
their participation:

															"These most unfortunate youngsters were born into an extremely
pathological family, and were exposed to one of the premier
sociopaths of recent Arizona history. In my opinion, this very fact
had a severe influence upon the personality structure of these
youngsters. . . . "

															" * * * *" "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.' Once committed, it was too
late, and there does not appear to be any true defense based on
brainwashing, mental deficiency, mental illness or irresistible
urge. There was a family obsession, the boys were 'trained' to
think of their father as an innocent person being victimized in the
state prison, but both youngsters have made perfectly clear that
they were functioning of their own volition. At a deeper
psychological level, it may have been less of their own volition
than as a result of Mr. Tison's 'conditioning' and the rather
amoral attitudes within the family home."

															Brief for Petitioners 11-12, n. 16.

															[ Footnote 2/8 ]

															For example, the Court quotes Professor Fletcher's observation
that "the Model Penal Code treats reckless killing . . .
as equivalent to purposeful and knowing killing." Ante at 481 U. S. 157 (emphasis added). The Model Penal Code advocates replacing the
felony murder rule with a rule that allows a conviction for murder
only when the killer acted with intent, purpose, or "reckless[ness]
under circumstances manifesting extreme indifference to the value
of human life." See ALI, Model Penal Code Commentaries §
210.2, p. 13 (Off. Draft 1980). The Code offers as examples
shooting into a crowd or an automobile, or shooting a person in the
course of playing Russian roulette. Id. at 22-23.

															[ Footnote 2/9 ]

															A second problem with the Court's examples is that they
illustrate wanton, but nevertheless intentional, killings, rather
than unintentional killings. The element that these wanton killings
lack is not intent, but rather premeditation and deliberation.
Professor Fletcher explains the point:

															"[W]hile planning and calculation represent one form of heinous
or cold-blooded murder, premeditation is not the only feature that
makes intentional killings wicked. 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. Fitzjames Stephen put the case of a man
who 'sees a boy sitting on a bridge over a deep river and, out of
mere wanton barbarity, pushes him into it, and so drowns him.'
Killing without a motive can usually be just as wicked as killing
after detached reflection about one's goals."

															G. Fletcher, Rethinking Criminal Law 264 (1978) (footnote
omitted; emphasis added).

															[ Footnote 2/10 ]

															We show this fidelity, for example, when we decline to hold a
young child as morally and criminally responsible for an illegal
act as we would hold an adult who committed the same act. Although
the child has committed the illegal act and caused the harmful
result, the child's actions are presumed not to reflect a mature
capacity for choice, and the child's culpability for the act is
accordingly reduced.

															[ Footnote 2/11 ]

															The Court acknowledged 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."

															458 U.S. 458 U. S. 799 .
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." Ibid. The trial court found that the killings in the
case were not an essential ingredient of the felony. App. 283,
quoted infra at 481 U. S. 164 ,
n. 4. Thus, the goal of deterrence is no more served in this case
than it was in Enmund. [ Footnote 2/12 ]

															We should be reluctant to conclude too much from the Court's
survey of state decisions, because most jurisdictions would not
approve the death penalty in the circumstances here, see 481
U.S. 137 fn2/13|>n. 13, infra, and the Court
neglects decisions applying the law of those States. 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 , 684 P.2d 826 (1984) (death penalty for felony murder may not be imposed without
finding of specific intent to kill), cert. denied, 469
U.S. 1229 (1985).

															Moreover, the cases the Court does cite are distinguishable from
this case. In four of the five cases cited as evidence of an
"apparent consensus" that intent to kill is not a prerequisite for
imposing the death penalty, the court did not specifically find an
absence of any act or intent to kill. Moreover, in each of these
cases, the court at least suggested that the defendants intended to
kill, attempted to kill, or participated in the actual killing.
Clines v. State, 280 Ark. 77, 84, 656 S.W.2d
684 , 687 (1983) ("There was direct evidence from more than one
source that appellants had discussed among themselves the necessity
of murder if they met resistance" and evidence that victim "was
immediately attacked by appellants, sustaining blows to his head
and face from the metal chain and a mortal wound to the chest"), cert. denied, 465 U.S. 1051 (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. pending, No. 85-6272; Ruffin v. State, 420 So. 2d
591 , 594 (Fla.1982) ("Evidence is abundantly clear and
sufficient to demonstrate Ruffin's joint participation in the
premeditated murder of Karol Hurst"); Selvage v.
State, 680
S.W.2d 17 , 22 (Tex.Cr.App.1984) ("Unlike Enmund, appellant used
lethal force to effectuate a safe escape, and attempted to kill
Ventura and Roberts as they pursued him and his companion from the
jewelry store"). As for the fifth case, People v.
Davis, 95 Ill. 2d 1 ,
52-53, 447 N.E.2d
353 , 378-379 (1983) (defendant received death sentence for his
role in successive burglaries during each of which codefendant
killed resident), the court appears to have held that the defendant
"knew" that his codefendant would commit the murder, a mental state
significantly different than that attributed to the Tisons.

															[ Footnote 2/13 ]

															Thirteen States and the District of Columbia have abolished the
death penalty. NAACP Legal Defense and Educational Fund, Death Row
U.S.A. 1 (Aug.1986). According to the Court, ante at 481 U. S.
154 -156, n. 10, 11 States would not authorize the death
penalty in the circumstances presented here. At least four other
States not cataloged by the Court also restrict the imposition of
capital punishment to those who actually commit and intend to
commit murder, and two more States reject the death penalty for
most felony murders, see this note infra, at 481 U. S. 176 .
In addition, the Supreme Court of at least one of the States cited
by the majority as a State authorizing the death penalty absent a
finding of intent has explicitly ruled that juries must find that a
felony murder defendant had a specific intent to kill before
imposing the death sentence. Carlos v. Superior Court of Los
Angeles Co., 35 Cal. 3d
131 , 672 P.2d 862 (1983). Thus, it appears that about three-fifths of the States and
the District of Columbia have rejected the position the Court
adopts today.

															For States that restrict the imposition of capital punishment to
those who actually and intentionally kill, see Mo.Rev.Stat. §§ 565.001, 565.003, 565.020 (1986) (death penalty
reserved for those who intentionally, knowingly, and deliberately
cause death); 18 Pa.Cons.Stat. §§ 2502(a), (b), (d), 1102 (1982)
(death penalty reserved for those who commit an intentional
killing); Vt.Stat.Ann., Tit. 13, §§ 2303(b), (c) (Supp.1986) (only
murderers of correctional officers subject to death penalty);
Wash.Rev.Code §§ 9 A. 32.030, 10.95.020 (1985) (death penalty
reserved for those who commit premeditated killing with at least
one aggravating circumstance). Two other States also forbid
imposition of the death penalty under the general standards
announced today, although other aspects of their statutes might
render them applicable to these defendants on the facts of this
case. See Md.Ann.Code, Art. 27, §§ 410, 412(b),
413(d)(10), 413(e)(1), 413(d)(5) (1957 and Supp.1986) (death
penalty may be imposed only on person who committed the killing,
but possible exception if victim is a child); N.H.Rev.Stat.Ann. §§
630:1, 630:1(III), 630:1-a(1)(b)(2) (1986) (death penalty reserved
for killing a law enforcement officer, murder for hire, and killing
during a kidnaping).

															[ Footnote 2/14 ]

															Although the Court ignores the statistics on actual executions,
it does refer earlier in its opinion to the evidence discussed in Enmund that, of the 739 inmates on death row for whom
sufficient data were available, only 41 did not participate in the
fatal assault on the victim and only 16 were not present. Ante at 481 U. S. 148 ; see Enmund, 458 U.S. at 458 U. S. 795 .
While in Enmund the Court focused on a breakdown of these
statistics into those physically present at the scene and those
not, that information is not relevant here. 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.

															Although statistics on the average sentences given for
nontriggermen in felony murders were not presented to the Court, it
is possible that such statistics would reveal a wide range of
results. One felony murder case worth noting in this regard is People v. Ganter, 56 Ill.App.3d 316, 371 N.E.2d 1072
(1977). Ganter and a codefendant committed an armed robbery of a
store, during which Ganter killed one of the store's owners.

															"The evidence at trial showed defendant was the actual murderer.
He shot Thomas at close range, without provocation, and as Thomas
stood in a helpless position. The accomplice, although accountable
for the death by his participation in the attempt [ sic ]
armed robbery, did not do the actual killing." Id. at 328, 371 N.E.2d at 1080-1081. Ganter was
sentenced to 20-30 years; his accomplice was sentenced to 3-6
years. Id. at 321, 327, 371 N.E.2d at 1076, 1080.

															[ Footnote 2/15 ]

															Since Enmund was decided, the Netherlands and Australia
have abolished the death penalty for all offenses, and Cyprus, El
Salvador, and Argentina have abolished it for all crimes except
those committed in wartime or in violation of military law. Amnesty
International, United States of America, The Death Penalty 228-231
(1987).

															[ Footnote 2/16 ]

															Lists of those executed and those on death row are published in
NAACP Legal Defense Fund, Death Row U.S.A. (Mar.1987). Review of
those executed since 1982 reveals that each person executed was
found to have committed a killing and/or to have intended to kill.
In only two cases does there remain some doubt whether the person
executed actually killed the victim; in each case, however, the
defendant was found at a minimum to have intended to kill. Green v. Zant, 738 F.2d 1529, 1533-1534 (CA11) (case was
presented to jury on malice-murder, rather than felony murder,
theory, and evidence supported verdict on that theory), cert.
denied, 469 U.S. 1098 (1984); Skillern v. Estelle, 720 F.2d 839, 844 (CA5 1983) (evidence supports finding that
Skillern agreed and "plotted in advance" to kill the eventual
victim), cert. denied sub nom. Skillern v. Procunier, 469
U.S. 1067 (1984).

															[ Footnote 2/17 ] See Amnesty International, supra, at 192
(listing death row totals by State as of Oct., 1986). The cases
since Enmund in which the Arizona Supreme Court has
rejected the defendant's Enmund challenge and affirmed the
death sentence are: State v. Correll, 148 Ariz. 468, 478, 715 P.2d 721 ,
731 (1986) (defendant intended to kill victims and "verbally
encouraged" codefendant to proceed with killing); State v.
Martinez-Villareal, 145 Ariz. 441, 702 P.2d
670 (defendant actively took part in the murder, and intended
to kill), cert. denied, 474 U.S. 975 (1985); State v.
Hooper, 145 Ariz. 538, 703 P.2d 482 (1985) (defendant killed for hire), cert. denied, 474 U. S. 1073 (1986); State v. Bishop, 144 Ariz. 521, 698 P.2d
1240 (1985) (defendant planned and intended to kill, assaulted
victim, and abandoned victim in mine shaft); State v.
Poland, 144 Ariz. 388, 698 P.2d 183 (1985) (defendants killed victims), aff'd, 476 U.
S. 147 (1986); State v. Villafuerte, 142 Ariz.
323, 690 P.2d 42 (1984) (defendant killed victim), cert. denied, 469 U.S.
1230 (1985); State v. Fisher, 141 Ariz. 227, 686 P.2d 750 (defendant killed victim), cert. denied, 469 U.S. 1066
(1984); State v. James, 141 Ariz. 141, 685 P.2d 1293 (defendant killed and intended to kill), cert. denied, 469 U. S. 990 (1984); State v. Harding, 141 Ariz. 492, 687 P.2d 1247 (1984) (defendant killed victim); State v. Libberton, 141
Ariz. 132, 685 P.2d 1284 (1984) (defendant killed victim); State v. Jordan, 137
Ariz. 504, 672 P.2d
169 (1983) (defendant killed and intended to kill); State
v. Smith, 138 Ariz. 79, 673 P.2d 17 (1983) (defendant killed and intended to kill), cert.
denied, 465 U.S. 1074 (1984); State v. Richmond, 136
Ariz. 312, 666 P.2d 57 (defendant intended to kill, participated in assault that led to
death), cert. denied, 464 U.S. 986 (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). Although the Court suggests otherwise, ante at 481 U. S.
155 -156, n. 11, in none of these cases does the Arizona
Supreme Court's finding of intent appear to rest, as it did here,
on a finding that a killing was merely foreseeable.

															[ Footnote 2/18 ]

															The utilitarian logic of deterrence can also justify unjust
punishments that are more commonly dispensed. See Fletcher, Rethinking Criminal Law, at 415 ("Judges in traffic
courts are readily tempted by the philosophy that, regardless of
whether the particular suspect has committed the violation, a
punitive fine will make him drive more carefully in the
future").

															A sophisticated utilitarian theory of deterrence might propose
some limiting principles, e.g., "no punishment must cause
more misery than the offense unchecked." H. Hart, Punishment and
Responsibility 76 (1968). But as Hart points out, this and other
principles

															"do not seem to account for the character of the normal
unwillingness to 'punish' those who have not broken the law at all,
nor for the moral objection to strict liability which permits the
punishment of those who act without mens rea. " Ibid. In Hart's view, "civilized moral thought" would
limit the utilitarian theories of punishment "by the demand that
punishment should not be applied to the innocent," and by
limiting

															"punishments in order to maintain a scale for different offenses
which reflects, albeit very roughly, the distinction felt between
the moral gravity of these offenses. Thus, we make some
approximation to the ideal of justice of treating morally like
cases alike, and morally different ones differently." Id. at 80. It is worth noting that both of the limits
Hart identifies have been given vitality in the Court's
proportionality jurisprudence. E.g., Robinson v.
California, 370 U. S. 660 , 370 U. S. 667 (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 458 U. S. 801 (Enmund's "punishment must be tailored to his personal
responsibility and moral guilt"). [ Footnote 2/19 ]

															Such punishment might also be defended on the utilitarian ground
that it was necessary to satisfy the community's thirst for
retribution, and thereby keep the peace. Such grounds can be used
to justify the punishment even of innocent people when the guilty
have not been found and the mob threatens new violence. It is thus
clear that "channeling" retributive instincts requires the State to
do more than simply replicate the punishment that private vengeance
would exact. To do less is simply to socialize vigilantism. As
JUSTICE MARSHALL has stated:

															"[T]he Eighth Amendment is our insulation from our baser selves.
The 'cruel and unusual' language limits the avenues through which
vengeance can be channeled. Were this not so, the language would be
empty, and a return to the rack and other tortures would be
possible in a given case." Furman v. Georgia, 408 U. S. 238 , 408 U. S. 345 (1972) (concurring opinion). See also Gregg v. Georgia, 428 U. S. 153 , 428 U. S.
237 -241 (1976) (MARSHALL, J., dissenting) (death penalty
unnecessary to further legitimate retributive goals).

															[ Footnote 2/20 ]

															The prophets warned Israel that theirs was "a jealous God,
visiting the iniquity of the fathers upon the children unto the
third and fourth generation of them that hate [Him]." Exodus, 20:5
(King James version). See, e.g., Horace, Odes III, 6:1 (C.
Bennett trans.1939) ("Thy fathers' sins, O Roman, thou, though
guiltless, shall expiate"); W. Shakespeare, The Merchant of Venice,
Act III, scene 5, line 1 ("Yes, truly, for look you, the sins of
the father are to be laid upon the children"); H. Ibsen, Ghosts
(1881).

Summary:
The U.S. Supreme Court case Tison v. Arizona (1987) dealt with the death penalty sentencing of two brothers who participated in a prison escape and subsequent murders. The Court considered whether the death penalty was proportional to their crimes, even though they neither intended to kill nor directly caused the deaths.

The Court held that the death penalty may be applied when a defendant's participation in a felony resulting in murder is significant, and they exhibit a reckless indifference to human life. This decision expanded on the previous ruling in Enmund v. Florida, which required a finding of "intent to kill" for death penalty cases.

The Court's opinion discussed the societal consensus and the moral justification for punishment, including the need to channel retributive instincts and satisfy community vengeance while maintaining proportionality and justice.

The Court ultimately upheld the death sentences for the brothers, as their active roles in the prison escape and subsequent events, along with their indifference to the killings, demonstrated a culpable mental state warranting capital punishment.