Arizona is such a jurisdiction. 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. Furman v. Georgia, 408 U.S. 238, 345, 92 S.Ct. In sentencing petitioners, the trial court did not find that they had killed, attempted to kill, or intended to kill anyone. . 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. imposes a categorical rule: a person who has not in fact killed, attempted to kill, or intended that a killing take place or that lethal force be used may not be sentenced to death." The father fled. 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. Nevertheless, the Court observes, in dictum, that "the record would support a finding of the culpable mental state of reckless indifference to human life." . Ante, at 157. We take the facts as the Arizona Supreme Court has given them to us. 408 U.S., at 313, 92 S.Ct., at 2764 (WHITE, J., concurring). Draft 1980). 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. 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 to those who not only did not intend to kill, but who also have not killed.9. Code, Art. A second problem with the Court's examples is that they illustrate wanton, but nevertheless intentional, killings, rather than unintentional killings. The sons conditioned their participation on their father's promise that no one would get hurt; during the breakout, their father kept his word. . 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. denied, 469 U.S. 1098, 105 S.Ct. 142 Ariz. 446, 448, 690 P.2d 747, 749 (1984). 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. . 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. Ante, at 157 (emphasis added). During the shootout, Donald Tison died and Randy Greenawalt, Ricky Tison and Raymond Tison were captured. Penal Code Ann. It is worth noting that both of the limits Hart identifies have been given vitality in the Court's proportionality jurisprudence. 265, 67 L.Ed. Id., at 91, 43 S.Ct., at 266. 180, 74 L.Ed.2d 147 (1982). At the breakout scene itself, petitioner played a crucial role by, among other things, holding a gun on prison guards. Against this background, the Court undertook its own proportionality analysis. Captured fugitives Rick Tison (second from left), Raymond Tison and Randy Greenawalt are led to court after their arrest on Aug. 11, 1978. 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. 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.10 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. 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. for Cert. 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. We will not attempt to precisely delineate the particular types of conduct and states of mind warranting imposition of the death penalty here. The Arizona Supreme Court thus attempted to comply with Enmund by making a finding as to petitioners' mental state. He robbed these people at their direction and then guarded the victims at gunpoint while they considered what next to do. The difference lies in the nature of the choice each has made. Ganter and a codefendant committed an armed robbery of a store, during which Ganter killed one of the store's owners. Thomas Brawley, a retired lieutenant of the Coconino County Sheriff's Office, died Wednesday after battling lung cancer. . Influential commentators and some States have approved the use of the death penalty for persons, like those given in the Court's examples, who kill others in circumstances manifesting an extreme indifference to the value of human life.8 Thus an exception to the requirement that only intentional murders be punished with death might be made for persons who actually commit an act of homicide; Enmund, by distinguishing from the accomplice case "those who kill," clearly reserved that question. 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. 79, 672 P.2d 862 (1983). The accomplice, although accountable for the death by his participation in the attempt [sic] armed robbery, did not do the actual killing." Many who intend to, and do, kill are not criminally liable at allthose who act in self-defense or with other justification or excuse. Appeal is automatic in Arizona capital cases. . . 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. 142 Ariz. 454, 456, 690 P.2d 755, 757 (1984). 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. 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. 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. Being sought were killers Randy Greenawalt, 28, and Gary G. Tison, 42, and Tison's three sons, Ricky, 18, Donald, 22, and Raymond, 19, authorities said. It is important to note how attenuated was Enmund's responsibility for the deaths of the victims in that case"), cert. Amnesty International, United States of America, The Death Penalty 228-231 (1987). 50-51, 91. (equating intent with purposeful conduct); see also Perkins, A Rationale of Mens Rea, 52 Harv.L.Rev. denied, 469 U.S. 990, 105 S.Ct. 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. Gainesville, Florida, United States Education Kansas State University . A sophisticated utilitarian theory of deterrence might propose some limiting principles, e.g., "no punishment must cause more misery than the offense unchecked." Vermont fell into none of these categories. 39, 108. 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 that just prior to the shootings they were attempting to find a jug of water to give to the family. Id., at 626-628, 98 S.Ct., at 2984-2985 (emphasis added; footnotes omitted). (3) each had been convicted of the murders under the felony-murder rule. The state statutes discussed in Enmund v. Florida are largely unchanged. As petitioners point out, there is no evidence that either Ricky or Raymond Tison took any act which he desired to, or was substantially certain would, cause death. 1749, 90 L.Ed.2d 123 (1986); State v. Villafuerte, 142 Ariz. 323, 690 P.2d 42 (1984) (defendant killed victim), cert. W. LaFave & A. Scott, Criminal Law 28, p. 196 (1972); see Lockett v. Ohio, supra, 438 U.S., at 625-626, 98 S.Ct., at 2983-2984 (opinion of WHITE, J.) The Court observed that, in imposing the death penalty upon Enmund, the Florida Supreme Court had failed to focus on "Enmund's own conduct . The Arizona Supreme Court did not attempt to argue that the facts of this case supported an inference of "intent" in the traditional sense. As explained in the Commentaries on the Model Penal Code: "At common law all felonies were punishable by death. did not plot in advance that these homicides would take place, or . In reversing the Florida Supreme Court, this Court took note of the "overwhelming evidence" of "[s]ociety's rejection of the death penalty for accomplice liability in felony murders." 13-454(F)(4) (Supp.1973) (repealed 1978). In Furman v. Georgia, supra, 408 U.S. 238, 92 S.Ct. Enmund v. Florida, 458 U.S., at 786, 102 S.Ct., at 3371. Thus it appears that about three-fifths of the States and the District of Columbia have rejected the position the Court adopts today. " Enmund v. Florida, supra, 458 U.S., at 798, 102 S.Ct., at 3377 (quoting Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. The heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender. Ann. In 1978, Tison and Greenawaltwere awarded for their good behavior, and transferred into the trustee unit. Thus the Court's findings about petitioners' mental states regarding the murders are based solely on inferences from petitioners' participation in the underlying felonies. 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. 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. 13-1105(A)(2), (B) (Supp.1986). 551, 83 L.Ed.2d 438 (1984). 23 Hen. 2. 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. Today we affirm Ricky and Raymond Tison's convictions and sentences for these crimes in this opinion and in the companion opinion of State v. Raymond Curtis Tison, 129 Ariz. 546, 633 P.2d 355 (1981). App. He was 76. 1759, 64 L.Ed.2d 398 (1980). 339, 88 L.Ed.2d 324 (1985); State v. Hooper, 145 Ariz. 538, 703 P.2d 482 (1985) (defendant killed for hire), cert. 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. The reckless actor has not chosen to bring about the killing in the way the intentional actor has. Stat. Together with Tison v. Arizona, also on certiorari to the same court (see this Court's Rule 19.4). 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." Enmund does not specifically address this point. 3368, 3373, n. 11, 73 L.Ed.2d 1140 (1982). Ante, at 148, see Enmund, 458 U.S., at 795, 102 S.Ct., at 3375. Like the Enmund Court, we find the state legislatures' judgment as to proportionality in these circumstances relevant to this constitutional inquiry.4 The largest number of States still fall into the two intermediate categories discussed in Enmund. Types of conduct and States of mind warranting imposition of the Coconino County Sheriff & x27! Other things, holding a gun on prison guards a second problem with the Court its! 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