The Tisons got into the Mazda and drove away, continuing their flight. Two brothers, Rick and Raymond Tison, coordinated a plan to help their father escape from prison. They carried a supply of guns into the prison and then escaped. 1676 Ricky W Tison of Arizona, arrests, mugshots, charges and Id., at 787, 102 S.Ct., at 3371. 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." They begged for their lives, Give us some waterjust leave us here and you all go home. But the fugitives were not willing to make a deal. Stat. The Code offers as examples shooting into a crowd or an automobile, or shooting a person in the course of playing Russian roulette. Supreme Court of Arizona, In Banc. Enmund also clearly dealt with the other polar case: the felony murderer who actually killed, attempted to kill, or intended to kill. ." Influential commentators and some States have approved the use of the death penalty for persons, like those given in the Court's examples, who kill others in circumstances manifesting an extreme indifference to the value of human life.8 Thus an exception to the requirement that only intentional murders be punished with death might be made for persons who actually commit an act of homicide; Enmund, by distinguishing from the accomplice case "those who kill," clearly reserved that question. The Tison Prison Break Arizona Gary, Donald, Ricky, and Ray Tison; Randy Greenawalt 1978 On Sunday, July 30, 1978, brothers Ray, Ricky, and Donny Tison (ages 18, 19, and 20) helped their father, Gary, and fellow inmate Randy Greenawalt escape from Arizona State Prison in Florence, Arizona. Enmund was the driver of the "getaway" car in an armed robbery of a dwelling. death." 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." would clearly support a finding that [both sons] subjectively appreciated that their acts were likely to result in the taking of innocent life"). A massive manhunt in Arizona ended on Aug. 11, 1978, when the gang ran a police road block near Casa Grande. Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 548, 83 L.Ed.2d 436 (1984); State v. James, 141 Ariz. 141, 685 P.2d 1293 (defendant killed and intended to kill), cert. Study Resources. A critical facet of the individualized determination of culpability required in capital cases is the mental state with which the defendant commits the crime. 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. But for Ricky and Raymond being that they did not pull the trigger but participated in the felony that led to the murder, were tried under the Felony-Murder law, It was under this law they were found guilty and sentenced to death. But Gary Tison got away. 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. denied, 469 U.S. 1066, 105 S.Ct. Furman v. Georgia, 408 U.S. 238, 308, 92 S.Ct. 2726, 2761, 33 L.Ed.2d 346 (1972) (Stewart, J., concurring). Ibid. John Lyons and his family stopped to help, and were taken by gunpoint into the desert. 1759, 64 L.Ed.2d 398 (1980). But their sentences were set aside by the Arizona Supreme Court in 1989. Enmund does not specifically address this point. 2954, 2965, 57 L.Ed.2d 973 (1978)) (emphasis in original). did not plot in advance that these homicides would take place, or . App. 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 officerwho reviewed at length all the facts concerning the sons' mental statesdid not recommend that the death sentence be imposed. 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." On direct appeal, the Arizona Supreme Court affirmed. 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'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.12 On this basis, the Court concludes that "[o]nly 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." " 458 U.S., at 800, 102 S.Ct., at 3378 (citation omitted). 339, 88 L.Ed.2d 324 (1985); State v. Hooper, 145 Ariz. 538, 703 P.2d 482 (1985) (defendant killed for hire), cert. 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." 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. 30-2-1(A)(2), 31-20A-5 (1984); Ohio Rev.Code Ann. Vermont fell into none of these categories. As a result, the court imposed the death sentence.3. In my opinion this very fact had a severe influence upon the personality structure of these youngsters. They were convicted of. Brawley was perhaps best known for leading an investigation that has since been called the "largest manhunt in Arizona history.". I join no part of this. But if the case is that the whole proceeding is a maskthat counsel, jury, and judge were swept to the fatal end by an irresistible wave of public passion, and 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." A chemical worker named Ray Thomas was throwing out trash and smelled a foul odor when he found Gary Tison, dead of exposure. 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. Arbitrariness continues so to infect both the procedure and substance of capital sentencing that any decision to impose the death penalty remains cruel and unusual. On August 11, 1978, twelve days after their escape, the Tison gang was back in Arizona. A massive manhunt in Arizona ended on Aug. 11, 1978, when the gang ran a police road block near Casa Grande. Draft 1980). Otherwise, the court noted, Ricky Tison's participation was substantially the same as Raymond's. 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. On the other hand, even after Enmund, only 11 States authorizing capital punishment forbid imposition of the death penalty even though the defendant's participation in the felony murder is major and the likelihood of killing is so substantial as to raise an inference of extreme recklessness.10 This substantial and recent legislative authorization of the death penalty for the crime of felony murder regardless of the absence of a finding of an intent to kill powerfully suggests that our society does not reject the death penalty as grossly excessive under these circumstances, Gregg v. Georgia, 428 U.S., at 179-181, 96 S.Ct., at 2928-2929 (opinion of Stewart, POWELL, and STEVENS, JJ. Gainesville, Florida, United States Education Kansas State University . 3001, 3011, 77 L.Ed.2d 637 (1983), the Court summarized the essence of the inquiry: "In sum, a court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." Ante, at 151; see also ibid. 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. Cf. The occupants of the house, an elderly couple, resisted and Enmund's accomplices killed them. . The search for the Tison gang was the largest manhunt in Arizona history. * Gary Tison was sentenced to life imprisonment as the result of a prison escape during the course of which he had killed a guard. Four States authorize the death penalty in felony-murder cases upon a showing of culpable mental state such as recklessness or extreme indifference to human life.5 Two jurisdictions require that the defendant's participation be substantial6 and the statutes of at least six more, including Arizona, take minor participation in the felony expressly into account in mitigation of the murder.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. 408 U.S., at 313, 92 S.Ct., at 2764 (WHITE, J., concurring). 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. 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. 459 U.S. 882, 103 S.Ct. In those more easygoing times, Arizona's medium security facilities apparently offered little trouble to Gary Tison's three sons -- Donald, 20, Ricky, 19, and Raymond, 18 -- when they decided to sneak in an ice chest containing revolvers and sawed-off shotguns on visitors' day. Raymond and Donald Tison, assisted in the escape of their father, Gary Tison, and Randy Greenawalt from the Arizona State Prison in Florence. 3368, 73 L.Ed.2d 1140 (1982), the question "whether death is a valid penalty under the Eighth and Fourteenth Amendments for one who neither took life, attempted to take life, nor intended to take life." 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. It is worth noting that both of the limits Hart identifies have been given vitality in the Court's proportionality jurisprudence. 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. 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. In that regard, it referred to facts concerning the breakout and escape. Killing without a motive can usually be just as wicked as killing after detached reflection about one's goals." Oct. 18, 1984. 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. 458 U.S., at 798-799, 102 S.Ct., at 3377. 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. . I conclude that the proportionality analysis and result in this case cannot be reconciled with the analyses and results of previous cases. . 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.' The court then reviewed, in a passage this Court quotes at length, ante, at 144-145, petitioners' conduct during the escape and subsequent flight. 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. 544, 551, 54 L.Ed. Following the Enmund decision, petitioners applied to the Arizona Supreme Court for postconviction review. pending, No. 1429, 79 L.Ed.2d 753 (1984); State v. Richmond, 136 Ariz. 312, 666 P.2d 57 (defendant intended to kill, participated in assault that led to death), cert. pending, No. 297 (quoting Paul Dean in the Arizona Republic, Aug. 16, 1978). 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." Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. While the States generally have wide discretion in deciding how much retribution to exact in a given case, the death penalty, "unique in its severity and irrevocability," Gregg v. Georgia, 428 U.S. 153, 187, 96 S.Ct. the use of the felony-murder rule allowed the courts to punish the actor in the same manner as if his attempt had succeeded. 173-174, 185, 191. The petitioners' own personal involvement in the crimes was not minor, but rather, as specifically found by the trial court, "substantial." 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. Creation of a new category of culpability is not enough to distinguish this case from Enmund. 2726, 33 L.Ed.2d 346 (1972), this Court concluded that the State's procedural machinery was so imperfect that imposition of the death penalty had become arbitrary and therefore unconstitutional. 458 U.S., at 794, 102 S.Ct., at 3375. Exodus, 20:5 (King James version). 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. 2978, 2991, 49 L.Ed.2d 944 (1976). Id., at 792, 102 S.Ct., at 3374. 689, 88 L.Ed.2d 704 (1986). A sophisticated utilitarian theory of deterrence might propose some limiting principles, e.g., "no punishment must cause more misery than the offense unchecked." 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 addition, the Court's statement that Raymond did not act to assist the victims "after" the shooting, and its statement that Ricky "watched the killing after which he chose to aid those whom he had placed in the position to kill rather than their victims," ante, at 152, takes license with the facts found by the Arizona Supreme Court. 1328, 79 L.Ed.2d 723 (1984); Deputy v. State, 500 A.2d 581, 599 (Del.1985) ("Deputy was not solely a participant in the underlying felony, but was instead present during, and involved in, the actual murders"), cert. Without such channeling, a State could impose a judgment of execution by torture as appropriate retribution for murder by torture.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. No shots were fired at the prison. 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 sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result. (Raymond) Tison, 129 Ariz. 546, 633 P.2d 355 (1981). Instead, the court found that each petitioner "could [have] anticipate[d] the use of lethal force during this attempt to flee confinement." In the end, Greenawalt's sentence was not overturned, and after 18 years of appeals Greenawalt was executed by lethal injection on January 23, 1997. 142 Ariz. 446, 690 P.2d 747, and 142 Ariz. 454, 690 P.2d 755, vacated and remanded. 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. Table of Contents Introduction I. The evidence in the record overlooked today regarding petitioners' mental states with respect to the shootings is not trivial. He assisted in escorting the victims to the murder site. The Lyons family was forced into the backseat of the Lincoln. App. 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. . Because our precedents and our Constitution compel a different answer than the one the Court reaches today, I dissent. ALI, Model Penal Code Commentaries 210.2, p. 31, n. 74 (Off. Enmund obviously cast considerable doubt on the constitutionality of the death sentences imposed on petitioners in this case. When their car broke down on a highway, they stopped a passing car. As we have shown, supra, at ----, this standard amounted to little more than a requirement that killing be foreseeable. 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. Arizonas most notorious death row inmates past and present have incredible stories, including this one that launched the state's largest manhunt. See Carlos v. Superior Court, supra, at 147-152, 197 Cal.Rptr., at 90-94, 672 P.2d, at 873-877. Enmund, supra, 458 U.S., at 798-799, 102 S.Ct., at 3377.11. * 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. Thus, the Court in Enmund examined the relevant statistics on the imposition of the death penalty for accomplices in a felony murder. 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." Justice O'CONNOR delivered the opinion of the Court. 1473(c)(6)(D). 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.' Randy Greenawalt was also tried and convicted for the escape and following murders. The Court held that capital punishment was disproportional in these cases. On its face, however, that decision would seem to violate the core Eighth Amendment requirement that capital punishment be based on an "individualized consideration" of the defendant's culpability, Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 142 Ariz., at 456, 690 P.2d, at 757. The two remaining Tison sons remain in the Arizona State prison at Florence. Expert Help. 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." The Arizona Supreme Court thus attempted to comply with Enmund by making a finding as to petitioners' mental state. The tower guards assumed they were all departing visitors. to us," ante, at 151, is improper.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. 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. Both lived at home with their mother, and visited their father, whom they believed to be "a model prisoner," each week. would cause or create a grave risk of . Either party in each case may offer such additional evidence bearing on Enmund/Tison issues as they wish, to be received and considered according . The five men fled the prison grounds in the Tisons' Ford Galaxy automobile. 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 this ground alone, I would dissent. The Arizona courts interpreted the plea agreement to require that petitioners testify to the planning stages of the breakout. Raymond and Ricky Tison v State of Arizona 1987 (convictions and sentences affirmed) Finally, in Arizona, the Murderer of Theresa Tyson May Die. Despite its earlier holding that petitioners had not killed or intended to kill anyone, the Arizona Supreme Court again upheld the Tisons' sentences. Physical evidence suggested that Theresa Tyson managed to crawl away from the bloodbath, severely injured. 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. 3368, 3373, n. 11, 73 L.Ed.2d 1140 (1982). 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