This reckless indifference to the value of human life may be every bit as shocking to the moral sense as an "intent to kill." Enmund was, therefore, sentenced under a distinct minority regime, a regime that permitted the imposition of the death penalty for felony murder simpliciter. . The Lyons and Theresa Tyson were then escorted to the Lincoln and again ordered to stand in its headlights. The issue raised by this case is whether the Eighth Amendment prohibits the death penalty in the intermediate case of the defendant whose participation is major and whose mental state is one of reckless indifference to the value of human life. The trial judge's instructions were consistent with the prosecutor's argument. 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. . Penal Code Ann. 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. Petitioners argue strenuously that they did not "intend to kill" as that concept has been generally understood in the common law. In 1978, Tison and Greenawaltwere awarded for their good behavior, and transferred into the trustee unit. 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. death." The Tison family assembled a large arsenal of weapons for this purpose. 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. These expressions are consistent with other evidence about the sons' mental states that this Court, like the lower courts, has neglected. Gary Tison fled into the desert. The State then individually tried each of the petitioners for capital murder of the four victims as well as for the associated crimes of armed robbery, kidnaping, and car theft. Login / Register Although we state these two requirements separately, they often overlap. The accomplice liability provisions of Arizona law have been modernized and recodified also. Ante, at 151. Moore v. Dempsey, 261 U.S. 86, 87, 43 S.Ct. When these jurisdictions are included, and are considered with those jurisdictions that require a finding of intent to kill in order to impose the death sentence for felony murder, one discovers that approximately three-fifths of American jurisdictions do not authorize the death penalty for a nontriggerman absent a finding that he intended to kill. The 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." . . Ann., Tit. In evaluating the trial court's findings of aggravating and mitigating factors, the Arizona Supreme Court found the first aggravating factorcreation of grave risk to othersnot supported by the evidence. 30-2-1(A)(2), 31-20A-5 (1984); Ohio Rev.Code Ann. . 398, 83 L.Ed.2d 332 (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. App. 689, 699, 88 L.Ed.2d 704 (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"). . " 458 U.S., at 800, 102 S.Ct., at 3378 (citation omitted). "[T]he type of conduct which Ohio would punish by death requires at most the degree of mens rea defined by the ALI Model Penal Code (1962) as recklessness: conduct undertaken with knowledge that death is likely to follow. 459 U.S. 882, 103 S.Ct. He eluded law enforcement for days. In the end, Greenawalt's sentence was not overturned, and after 18 years of appeals Greenawalt was executed by lethal injection on January 23, 1997. 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." 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. Lists of those executed and those on death row are published in NAACP Legal Defense Fund, Death Row U.S.A. (Mar. . Roy's personality depends on whoever is playing the game. G. Fletcher, Rethinking Criminal Law 254 (1978) (footnote omitted; emphasis added). 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. pending, No. 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. denied, 469 U.S. 1229, 105 S.Ct. The five men fled the prison grounds in the Tisons' Ford Galaxy automobile. The Arizona Supreme Court's attempted reformulation of intent to kill amounts to little more than a restatement of the felony-murder rule itself. As they ran the second roadblock, police fired killing Donny, the van off the road. 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. Gary Tison then told his sons to go back to the Mazda and get some water. NAACP Legal Defense and Educational Fund, Death Row U.S.A. 1 (Aug. 1986). 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. Ricky Wayne TISON and Raymond Curtis Tison, Petitionersv.ARIZONA. 79, 672 P.2d 862 (1983), construed its capital murder statute to require a finding of intent to kill. While the States generally have wide discretion in deciding how much retribution to exact in a given case, the death penalty, "unique in its severity and irrevocability," Gregg v. Georgia, 428 U.S. 153, 187, 96 S.Ct. denied, 465 U.S. 1074, 104 S.Ct. Without such channeling, a State could impose a judgment of execution by torture as appropriate retribution for murder by torture.19 Thus, under a simple theory either of deterrence or retribution, unfettered by the Constitution, results disturbing to civil sensibilities and inconsistent with "the evolving standards of decency" in our society become rationally defensible. He was located in the low-security Trusty Unit. While the water jug was being filled, Gary Tison and Greenawaltused shotguns to kill the family of four, including a 2-year-old boy. 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. This was impermissible under the Eighth Amendment." 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." "[S]ociety has made a judgment, which has deep roots in the history of the criminal law . Oregon now authorizes capital punishment for felony murders when the defendant intends to kill. Donald Tison was killed. 869, 71 L.Ed.2d 1 (1982) (adopting position of Lockett plurality). 458 U.S., at 794, 102 S.Ct., at 3375 (emphasis added). Ricky Wayne TISON and Raymond Curtis Tison, Petitioners WebRaymond 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 Brothers finally free from death sentence after 13 years Four States authorize the death penalty in felony-murder cases upon a showing of culpable mental state such as recklessness or extreme indifference to human life.5 Two jurisdictions require that the defendant's participation be substantial6 and the statutes of at least six more, including Arizona, take minor participation in the felony expressly into account in mitigation of the murder.7 These requirements significantly overlap both in this case and in general, for the greater the defendant's participation in the felony murder, the more likely that he acted with reckless indifference to human life. 2861, 53 L.Ed.2d 982 (1977), but instead offers two reasons in support of its view. App. The Arizona Supreme Court, however, upheld the "pecuniary gain" and "heinousness" aggravating circumstances and the death sentences. "From these facts we conclude that petitioner intended to kill. In. By the time their flight ended The 'cruel and unusual' language limits the avenues through which vengeance can be channeled. 1987). 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.12 The Arizona courts have clearly found that the former exists; we now vacate the judgments below and remand for determination of the latter in further proceedings not inconsistent with this opinion. See State v. Dorothy Tison, Cr. Gary Tison escaped into the desert where he subsequently died of exposure. 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.'
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