Tison v. Arizona
481 U.S. 137 (1987)

Annotate this Case

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

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,

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