2978, 2991, 49 L.Ed.2d 944 (1976). 284-285. 2909, 2929, 49 L.Ed.2d 859 (1976). In evaluating the trial court's findings of aggravating and mitigating factors, the Arizona Supreme Court found the first aggravating factorcreation of grave risk to othersnot supported by the evidence. Against this background, the Court undertook its own proportionality analysis. 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. The evidence in the record overlooked today regarding petitioners' mental states with respect to the shootings is not trivial. 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. See, e.g., Clines v. State, 280 Ark. After Gary Tison rendered the Lincoln inoperable by firing into its engine compartment, petitioner assisted in escorting the victims to the Lincoln. Enmund held that when "intent to kill" results in its logical though not inevitable consequence the taking of human lifethe Eighth Amendment permits the State to exact the death penalty after a careful weighing of the aggravating and mitigating circumstances. 16-11-103(5)(d) (1978 and Supp.1985); Ind.Code 35-50-2-9(c)(4) (Supp.1986); Mont.Code Ann. 2861, 53 L.Ed.2d 982 (1977), but instead offers two reasons in support of its view. denied, 469 U.S. 1066, 105 S.Ct. * * * * *. 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." pending, No. 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. 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. The Eighth Amendment does not prohibit the death penalty as disproportionate in 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. Rick and Raymond and Greenawalt were captured. 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. Raymond recalled being at the Mazda filling the water jug "when we started hearing the shots." Ariz.Rev.Stat.Ann. 142 Ariz. 454, 456-457, 690 P.2d 755, 757-758 (1984). First, the Court's dictum that its new category of mens rea is applicable to these petitioners is not supported by the record. . 173-174, 185, 191. Arizona fell into a subcategory of six States which made "minimal participation in a capital felony committed by another person a [statutory] mitigating circumstance." death." Ricky Tison's behavior differs in slight details only. 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. All those killed were intended victims, and no one else was endangered. 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. Id., at 788, 102 S.Ct., at 3372. 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. 13-703(G)(3) (1978 and Supp.1986); Colo.Rev.Stat. 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. . . . 1749, 90 L.Ed.2d 123 (1986); State v. Villafuerte, 142 Ariz. 323, 690 P.2d 42 (1984) (defendant killed victim), cert. The Arizona Supreme Court thus attempted to comply with Enmund by making a finding as to petitioners' mental state. The deaths would not have occurred but for their assistance. Thus it appears that about three-fifths of the States and the District of Columbia have rejected the position the Court adopts today. 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. The youngest son, Raymond, stayed by the car to flag down a passing motorist, while the others laid in wait. denied, 470 U.S. 1059, 105 S.Ct. 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. 79, 672 P.2d 862 (1983), construed its capital murder statute to require a finding of intent to kill. 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." Penal Code Ann. The Tison family assembled a large arsenal of weapons for this purpose. 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. During the shootout, Donald Tison died and Randy Greenawalt, Ricky Tison and Raymond Tison were captured. . Gary Tison, originally from Casa Grande, and Randy Greenawalt broke out of a . 1229, 84 L.Ed.2d 366 (1985). Greenawalt drew an X on the door near the head of the sleeping trucker, then fired a shot through the door. 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. Enmund, supra, 458 U.S., at 798, 102 S.Ct., at 3377, quoting Coker v. Georgia, 433 U.S., at 592, 97 S.Ct., at 2866. fenwick high school football roster ricky and raymond tison 2020 . 435, 78 L.Ed.2d 367 (1983); State v. McDaniel, 136 Ariz. 188, 665 P.2d 70 (1983) (defendant killed victim); State v. Gillies, 135 Ariz. 500, 662 P.2d 1007 (1983) (defendant took an active and deliberate part in the killing). . Ante, at 157. Miss.Code Ann. Id., at 796-797, n. 22, 102 S.Ct., at 3376-3377, n. 22.15. 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. 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." 2 * Gary Tison was sentenced to life imprisonment as the result of a prison escape during the course of which he had killed a guard. Justice O'CONNOR delivered the opinion of the Court. 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. Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 565.001, 565.003, 565.020 (1986) (death penalty reserved for those who intentionally, knowingly, and deliberately cause death); 18 Pa. Cons. 14, 1979, hearing). 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. The jury could have concluded that he was there, a few hundred feet away, waiting to help the robbers escape with the Kerseys' money. 2 * Gary Tison was sentenced to life imprisonment as the result of a prison escape during the course of which he had killed a guard. 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." The Framers provided in the Eighth Amendment the limiting principles otherwise absent in the prevailing theories of punishment. 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. From there, theTison gang managed to get to Colorado, and needed to switch cars. 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. 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. 200.030(1)(b), 200.030(4), 200.033(4)(a)-(b) (1985). 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. Oregon now authorizes capital punishment for felony murders when the defendant intends to kill. 200.030(1)(b), 200.030(4), 200.033(4)(a)-(b) (1986); N.J.Stat.Ann. three sons, Donald age 20, Ricky, 19, and Raymond 18 came to visit. 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.' 38, &Par; 9-1(a)(3), 9-1(b)(6) (1986). 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. Accordingly, they fall well within the overlapping second intermediate position which focuses on the defendant's degree of participation in the felony. Enmund is only one of a series of cases that have framed the proportionality inquiry in this way. Although the Court suggests otherwise, ante, at 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. Ariz.Rev.Stat.Ann. Instead, the court found that each petitioner "could [have] anticipate[d] the use of lethal force during this attempt to flee confinement." 265, 67 L.Ed. 13, 2303(b), (c) (Supp.1986) (only murderers of correctional officers subject to death penalty); Wash. Rev.Code 9A.32.030, 10.95.020 (1985) (death penalty reserved for those who commit premeditated killing with at least one aggravating circumstance). Because our precedents and our Constitution compel a different answer than the one the Court reaches today, I dissent. denied, 465 U.S. 1051, 104 S.Ct. 2d 127 (1987) Brief Fact Summary. . They searched for days with temperatures nearing 120 degrees. It is thus clear that "channeling" retributive instincts requires the State to do more than simply replicate the punishment that private vengeance would exact. At a minimum, however, it can be said that all these jurisdictions, as well as six States which Enmund classified along with Florida as permitting capital punishment for felony murder simpliciter,8 and the three States which simply require some additional aggravation before imposing the death penalty upon a felony murderer,9 specifically authorize the death penalty in a felony-murder case where, though the defendant's mental state fell short of intent to kill, the defendant was a major actor in a felony in which he knew death was highly likely to occur. denied, 464 U.S. 1001, 104 S.Ct. State v. (Ricky Wayne) Tison, 129 Ariz. 526, 545, 633 P.2d 335, 354 (1981). 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. App. Ricky and Raymond Tison, brothers, conspired with several other family members to help their father, Gary, escape from prison. While Ricky was talking with his father, his brothers pulled a sawed-off shotgun out of an ice chest they were carrying. Enmund's lack of intent to commit the murder rather than the lack of evidence as to his mental statewas the decisive factor in the Court's decision that the death penalty served neither of the two purposes. 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. marcus foligno injury update. Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 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 infra, at 176. 142 Ariz. 454, 456, 690 P.2d 755, 757 (1984). 339, 88 L.Ed.2d 324 (1985); State v. Hooper, 145 Ariz. 538, 703 P.2d 482 (1985) (defendant killed for hire), cert. 136, 161, 447 N.E.2d 353, 378 (defendant present at the scene and had participated in other crimes with Holman, the triggerman, during which Holman had killed under similar circumstances), cert. 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. As the group traveled on back roads and secondary highways through the desert, another tire blew out. In any given case, the Court said, the death penalty must "measurably contribut[e]" to one or both of the two "social purposes"deterrence and retributionwhich this Court has accepted as justifications for the death penalty. denied, 465 U.S. 1051, 104 S.Ct. Draft 1980). 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 contemplated), cert. She died in the desert after the Tisons left. Id., at 792, 102 S.Ct., at 3374. The Tison brothers' cases fall into neither of these neat categories. Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. Thomas Brawley, a retired lieutenant of the Coconino County Sheriff's Office, died Wednesday after battling lung cancer. 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. . 108352 (Super.Ct. He was soon recaptured, finished his sentence and was paroled. Id., at 791, 102 S.Ct., at 3373.3. 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. Moreover, the cases the Court does cite are distinguishable from this case. Together with Tison v. Arizona, also on certiorari to the same court (see this Court's Rule 19.4). He stood by and watched the killing, making no effort to assist the victims before, during, or after the shooting. 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. 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. The statute set out six aggravating and four mitigating factors. Petitioner played an active part in preparing the breakout, including obtaining a getaway car and various weapons.