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TISON v. ARIZONA (1986)
TISON v.
ARIZONA
No. 84-6075
SUPREME COURT OF THE UNITED STATES
481 U.S. 137;
107 S. Ct. 1676;
95 L. Ed. 2d 127;
1987 U.S. \
November 3, 1986, Argued
April 21, 1987, Decided *
* Together with Tison v. Arizona, also on certiorari to the same court (see
this Court's Rule 19.4).
PRIOR HISTORY:
CERTIORARI TO THE SUPREME COURT OF ARIZONA.
DISPOSITION:
142 Ariz. 446, 690 P. 2d 747, and
142 Ariz. 454, 690 P. 2d 755, vacated and remanded.
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DECISION: Felony-murder death penalty for persons who do not kill or intend to kill
victims, but who have major personal involvement in felony and show reckless
indifference to human life, held not to violate Eighth Amendment.
SUMMARY: A prisoner who had been convicted of murdering a guard during a previous
escape attempt was aided in a second attempt by members of his family,
including two of his sons, who smuggled guns into the prison and helped the
prisoner and his cellmate, also a convicted murderer, to overpower their
guards. After the getaway car developed a flat tire, the group decided to stop
and steal a passing car, and one of the sons flagged down some passing
motorists, who were then held by the group at gunpoint, robbed of their
valuables, and taken out into the desert with both cars. While the sons fetched
some water for their captives from the second car, the prisoner and his
cellmate, who were holding the captives by the adjacent first car, fatally shot
the captives. Neither of the sons made any effort to aid the victims, though
they later claimed to have been surprised by the shootings; and they continued
to participate in the escape effort, which later ended in a shootout with
police. In Arizona state court proceedings based on Arizona's felony-murder and
accomplice-liability laws, the two sons were convicted of murder and sentenced
to death for the killing of the motorists. The Supreme Court of Arizona
affirmed the death sentences, holding that the fact that the sons had not
specifically intended that the motorists be killed nor actually done the
killing was of little significance in view of the fact that they had associated
themselves with known killers and were palpably indifferent to the consequences
of their actions
(129 Ariz 526, 633 P2d 335;
129 Ariz 546, 633 P2d 355). Denying the sons' petitions for postconviction relief, the Supreme Court of
Arizona (1) described the intervening decision in
Enmund v Florida (1982) 458 US 782, 73 L Ed 2d 1140, 102 S Ct 3368, as holding that the Eighth Amendment prohibits imposition of the death penalty
absent a showing that the defendant killed, attempted to kill, or intended to
kill, but (2) ruled that
"intent" to kill was shown in this case because the sons had anticipated that lethal
force might be used in accomplishing the underlying felony
(142 Ariz 446, 690 P2d 747;
142 Ariz 454, 690 P2d 755).
On certiorari, the United States Supreme Court vacated the judgments below and
remanded for a determination as to whether the sons had acted with reckless
indifference to human life. In an opinion by O'Connor, J., joined by Rehnquist,
Ch. J., and White, Powell, and Scalia, JJ., it was held (1) that the sons did
not fall within the
"intent to kill" category of felony-murderers for whom imposition of the death penalty does not
constitute cruel and unusual punishment, even though they anticipated the
possibility of bloodshed; but (2) that major participation in the felony
committed, combined with reckless indifference to human life, is sufficient to
satisfy the culpability requirement for capital punishment in such a case, even
though the sons had neither intended to kill nor personally inflicted the fatal
wounds.
Brennan, J., joined by Marshall, J., and joined in part (except as to point 5
below) by Blackmun and Stevens, JJ., dissented, expressing the view (1) that
foreseeability of harm is not equivalent to intent for purposes of assessing
the propriety of capital punishment; (2) that the facts of the case did not
show that the sons had acted with reckless disregard for human life with
respect to the shootings; (3) that it has not been shown, in accordance with
established rules of proportionality analysis, 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; (4) that this case demonstrates the failure to develop procedural
machinery that is capable of distinguishing the few cases in which the death
penalty is imposed from the many in which it is not; and (5) that, in view of
the arbitrariness which continues to infect capital sentencing, the death
penalty should be regarded, in all circumstances, as cruel and unusual
punishment prohibited by the Eighth and Fourteenth Amendments.
Classified to U.S. Digest Lawyers' Edition:
[***HN1]
APPEAL
§1699
CRIMINAL LAW
§82
cruel and unusual punishment -- death penalty -- felony-murder -- remand for
further findings --
Headnote:
[1A]
[1B]
[1C]
[1D]
The showing of culpability which is required, under the Eighth Amendment's
prohibition against cruel and unusual punishment, before the death penalty may
be imposed against persons convicted of felony-murder, is satisfied where the
defendants' participation in the underlying felony is major and their mental
state is one of reckless indifference to the value of human life, even though
they neither specifically intend to kill the victims nor personally inflict the
fatal wounds; major participation in the felony has properly been found in the
case of the sons of a convicted murderer--who were convicted of felony-murder
on the basis of evidence that they (1) participated in a plan to smuggle guns
to their father in prison, (2) helped the father and his cellmate to overpower
their guards with the guns and to escape from the prison, (3) flagged down
passing motorists and participated in kidnapping the motorists at gunpoint and
robbing them of their vehicle and other valuables, (4) were present nearby when
the father and his cellmate fatally shot the motorists, (5) made no attempt to
aid the victims although they were allegedly surprised by the shootings, and
(6) continued to participate in the escape attempt thereafter--as the sons were
actively involved in every element of the kidnapping-robbery and were
physically present during the entire sequence of criminal activity; thus, state
court decisions which uphold the imposition of the death penalty against these
defendants on other, erroneous grounds will be vacated and remanded for a
determination as to reckless indifference. (Brennan, Marshall, Blackmun, and
Stevens, JJ., dissented from this holding.)
[***HN2]
APPEAL
§1087.5(2)
questions raised on certiorari -- death penalty -- aggravating factors --
Headnote:
[2A]
[2B]
The question on which the United States Supreme Court has granted certiorari in
a death penalty case, as to whether the use of the death penalty against
defendants who have been convicted of felony-murder violates the Eighth
Amendment prohibition against cruel and unusual punishment where the defendants
(1) did not specifically intend that the victims die, (2) did not plot in
advance that the homicides would take place, and (3) did not actually pull the
trigger which inflicted the fatal wounds, does not fairly encompass an attack
on the state's construction of the aggravating factors in its capital
sentencing statute, and the Supreme Court will not express any view on the
latter subject.
[***HN3]
CRIMINAL LAW
§82
cruel and unusual punishment -- death penalty -- robbery --
Headnote:
[3]
The imposition of the death penalty for armed robbery is excessive, and
therefore violates the Eighth and Fourteenth Amendments' proscription against
all punishments which by their excessive length or severity are greatly
disproportioned to the offense.
[***HN4]
CRIMINAL LAW
§69
retribution -- death penalty --
Headnote:
[4]
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, requires the state to inquire into the relevant facets of
the character and record of the individual offender.
[***HN5]
CRIMINAL LAW
§82
cruel and unusual punishment -- death penalty -- intent to kill --
Headnote:
[5]
Even though sons who helped their father to escape from prison and who
subsequently aided him in kidnapping and robbing some passing motorists, whom
the father and another escapee then shot to death, had anticipated that lethal
force might be used in accomplishing the underlying felony, they do not fall
within the category of felony-murderers having an
"intent to kill," against whom the death penalty may be imposed without violating the Eighth
Amendment's ban on cruel and unusual punishment, where there is no evidence
that either of the sons took any act which he desired to, or was substantially
certain would, cause death.
[***HN6]
CRIMINAL LAW
§82
cruel and unusual punishment -- death penalty -- relevance of state legislative
judgments --
Headnote:
[6]
The judgment of state legislatures is relevant to the inquiry as to whether the
Eighth Amendment proportionality requirement bars the use of the death penalty
in the case of a convicted felony-murderer whose participation in the felony is
major and whose mental state is one of reckless indifference to the value of
human life.
[***HN7]
CRIMINAL LAW
§82
cruel and unusual punishment -- death penalty -- reckless disregard for life --
Headnote:
[7]
The reckless disregard for human life which is implicit in knowingly engaging
in criminal activities that are known to carry a grave risk of death represents
a highly culpable mental state which, consistently with the Eighth Amendment's
ban on cruel and unusual punishment, may be taken into account in making a
capital sentencing judgment when that conduct causes its natural, though not
inevitable, lethal result.
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 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. 146-158.
COUNSEL: Alan M. Dershowitz, by appointment of the
Court, 475 U.S. 1079, argued the cause for petitioners. With him on the briefs were Stephen H.
Oleskey, Cynthia O. Hamilton, Susan Estrich, and Nathan Dershowitz.
William J. Schafer III argued the cause for respondent. With him on the brief was Robert K.
Corbin, Attorney General of Arizona.
JUDGES: 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. 159.
OPINIONBY:
O'CONNOR
OPINION:
[*138]
[***132]
[**1678] JUSTICE O'CONNOR delivered the opinion of the Court.
[***HR1A]
[1A]
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.
[*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
[***133] 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.
[**1679] 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
[*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
"give 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.
[*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
[***134] 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
[**1680] 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
[*142]
of the four
murders under these
accomplice liability and
felony-murder statutes. n1
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 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.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
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
[***135]
"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;
[*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
[**1681] 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:
[*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
[***136] 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
[*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).
[***HR2A]
[2A]
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
[**1682] 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
[***137] certiorari in
[*146] order to consider the Arizona Supreme Court's application of
Enmund.
475 U.S. 1010 (1986). n2
[***HR2B]
[2B]
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 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).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
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:
"'The 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
[*147] of section 782.04(1)(a).'
399 So. 2d, at 1370."
Enmund v. Florida, 458 U.S., at 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 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 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
[***138] 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
[**1683] person a [statutory] mitigating circumstance."
Id., at 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 791. n3
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 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, 791, n. 11 (1982).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[*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.
[***HR3]
[3]
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, 371 (1910) (quoting
O'Neil v. Vermont, 144 U.S. 323, 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 798-799. In reaching this conclusion, the Court relied upon the fact that
killing only rarely occurred during the course of
robberies,
[*149] and such
killing as did occur even more rarely resulted in death
sentences if the evidence did not support an inference
[***139] that the defendant intended to
kill. The Court acknowledged, however, that
"it 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 799.
[***HR1B]
[1B]
[***HR4]
[4]
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, 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, 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 798
[**1684] (quoting
Lockett v. Ohio, 438 U.S. 586, 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 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
[*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.
[***HR5]
[5]
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 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
[***140] 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 . . .
[*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
[**1685] 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
[*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
[***141] 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.
[***HR1C]
[1C]
[***HR6]
[6]
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. n4 The largest
number of States still fall into the two intermediate categories discussed in
Enmund. Four States authorize the
death penalty in
[*153]
felony-murder cases upon a showing of
culpable
mental state such as recklessness or extreme indifference to
human life. n5 Two jurisdictions require that the defendant's participation be substantial
n6 and the statutes of at least six more, including Arizona, take minor
participation in the
felony expressly into account in mitigation of the
murder. n7 These requirements significantly overlap both in this
[**1686] 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, n8
[***142] and the three States which simply require some additional aggravation before imposing the
death penalty upon a
felony
murderer, n9
[*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. n10 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 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.); see also
Coker v. Georgia, 433 U.S., at 594.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 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).
n5 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, paras. 9-1(a)(3), 9-1(b)(6)
(1986).
n6 Conn. Gen. Stat.
§ 53a-46a(g)(4) (1985);
49 U. S. C. App. § 1473(c)(6)(D).
n7 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).
n8 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 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.
n9 Idaho Code
§ 19-2515(g) (Supp. 1986); Okla. Stat., Tit. 21,
§ 701.12 (1981); S. D. Codified Laws
§ 23A-27A-1 (Supp. 1986).
n10 Ala. Code
§§ 13A-2-23, 13A-5-40(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).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
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
[*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
[**1687] (defendant present at the
scene and had participated in other crimes with Holman, the triggerman, during which
Holman had
killed under similar
[***143] 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. n11
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n11 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 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. 454, 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 150, this standard amounted to little more than a requirement that
killing be foreseeable.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[*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
"the absence of direct proof that the defendant intended to cause the death of
the victim."
Id., at 608 (opinion of Burger, C. J.); see also
Eddings v. Oklahoma, 455 U.S. 104 (1982)
[***144] (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.
[*157]
[***HR7]
[7]
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
[**1688]
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) ("In 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
[*158] sentencing judgment when that conduct causes its natural, though also not
inevitable,
lethal result.
[***HR1D]
[1D]
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
[***145] 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. n12 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).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n12 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.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
It is so ordered.
DISSENTBY:
BRENNAN
DISSENT:
[*159]
[**1689] 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. n1 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.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 App. 297 (quoting Paul Dean in the Arizona Republic, Aug. 16, 1978).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
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. n2
[***146] Today, in
[*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.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 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).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
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. n3
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n3 As the Court notes,
ante, at 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, 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).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[*161]
[**1690] 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 non-participation 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,
[***147] 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 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).
[*162] In reversing the Florida Supreme Court, this Court took note of the
"overwhelming evidence" of
"society's rejection of the
death penalty for
accomplice liability in
felony
murders."
458 U.S., at 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 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:
[**1691]
"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 144-145, petitioners' conduct
[***148] during the
[*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 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 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 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
[*164]
reckless indifference to
human life."
Ante, at 151; see also
ante, at 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. n4
[**1692] But even if
[***149] they
[*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 151, is improper. n5 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, 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").
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 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.
n5 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 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.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
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
[*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
[***150] 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. n6 Both, however, expressed feelings of surprise,
[**1693] 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
[*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. n7
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n6 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.
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 145 (citation omitted).
n7 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 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
irresistable 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.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[*168] In
[***151] 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 397-407 (BLACKMUN, J., dissenting);
id., at 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
[**1694] 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
[*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 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
[***152] of
human life. n8 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
[*170] to those who not only did not intend to
kill, but who also have not
killed. n9
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n8 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 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.
n9 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:
"While planning and calculation represent one form of heinous or coldblooded
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 254 (1978) (footnote omitted; emphasis
added).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
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
[**1695]
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
[*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
[***153] 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, 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. n10 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 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, 444 (1978).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n10 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.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
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
[*172] which the petitioner's
death sentence was vacated on other grounds.
"Society 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.
. . . .
"The 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 626-628 (emphasis added; footnotes omitted).
[**1696] 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
[***154] penalty.
Enmund, supra, at 798, citing
Gregg v. Georgia, 428 U.S. 153, 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 798, quoting
Coker v. Georgia, 433 U.S., at 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
[*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 798-799. n11
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 800 (citation omitted). The Court concluded that
"putting 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 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
[*174] v. Bullock, 474 U.S., at 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.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n11 The Court acknowledged that
"it 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., at 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 164, n. 4. Thus the goal of deterrence is no more served in this case
than it was in
Enmund.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
B
The Court's second reason for abandoning the intent requirement
[***155] is based on its survey of state statutes authorizing the
death penalty for
felony murder, and on a handful of state cases. n12 On this basis, the
[**1697] Court concludes that
"only
[*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 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 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. n13
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n12 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 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.
n13 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 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 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
§§ 9A.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(I)(b)(2) (1986) (death penalty reserved for
killing a law enforcement officer,
murder for hire, and
killing during a kidnapping).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[*176]
[**1698] Second,
[***156] 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 794 (emphasis added). This evidence obviously militates against imposing the
death penalty on petitioners as powerfully as it did against imposing it on Enmund. n14
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n14 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 148; see
Enmund, 458 U.S., at 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.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[*177] The Court in
Enmund also looked at the imposition of the
death penalty
[***157] 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 796-797, n. 22. n15
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n15 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).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The Court today neither reviews nor updates this evidence. Had it done so, it
would have discovered that, even
[*178] including the 65 executions since
Enmund,
"the 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 796. n16 Of the 64 persons on
[**1699] 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. n17 Thus, like
[***158] Enmund, the Tisons'
sentence
[*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.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n16 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).
n17 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 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.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
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, 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
[*180]
[**1700]
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). n18
Retribution,
[***159] which has as its core logic
[*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 605, and when
"the administration of criminal justice" works to
"channe[l]" society's
"instinct for
retribution."
Furman v. Georgia, 408 U.S., at 308 (Stewart, J., concurring). Without such channeling, a State could impose a
judgment of execution by torture as appropriate
retribution for
murder by torture. n19 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.
[**1701] Cf.
Trop v. Dulles, 356 U.S. 86, 101 (1958).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n18 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, 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 801 (Enmund's
"punishment must be tailored to his personal responsibility and moral guilt").
n19 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:
"The
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, 345 (1972) (concurring opinion). See also
Gregg v. Georgia, 428 U.S. 153, 237-241 (1976) (MARSHALL, J., dissenting) (death penalty unnecessary to further legitimate retributive goals).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
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
[*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
[***160] 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, 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
[*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 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 309
[***161] (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]
[**1702] is imposed from the many cases in which it is not."
408 U.S., at 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
[*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. n20 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.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n20 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).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
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, 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 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
[*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 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.