death." On its face, however, that decision would seem to violate the core Eighth Amendment requirement that capital punishment be based on an "individualized consideration" of the defendant's culpability, Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 1417, 1421, 8 L.Ed.2d 758 (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, 102 S.Ct., at 3378 (Enmund's "punishment must be tailored to his personal responsibility and moral guilt"). 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. 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 Ante, at 151. 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. According to the Court, ante, at 154156, n. 10, 11 States would not authorize the death penalty in the circumstances presented here. 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. In reaching this conclusion, the Court relied upon the fact that killing only rarely occurred during the course of robberies, and such killing as did occur even more rarely resulted in death sentences if the evidence did not support an inference that the defendant intended to kill. . In Furman v. Georgia, supra, 408 U.S. 238, 92 S.Ct. 13-454(F)(4) (Supp.1973) (repealed 1978). John Lyons asked the Tisons and Greenawalt to "[g]ive us some water . 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. Id., at 788, 102 S.Ct., at 3372. See, e.g., Clines v. State, 280 Ark. Instead, it seems likely that 'capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation'. three sons, Donald age 20, Ricky, 19, and Raymond 18 came to visit. 2861, 53 L.Ed.2d 982 (1977) (holding the death penalty disproportional to the crime of rape). In doing so, the court found Raymond and Ricky Tison was under a mesquite tree, about a mile and half from the where the van crashed. The accomplice liability provisions of Arizona law have been modernized and recodified also. Amnesty International, United States of America, The Death Penalty 228-231 (1987). 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. Maricopa County 1981). 544, 551, 54 L.Ed. 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. 435, 78 L.Ed.2d 367 (1983); State v. McDaniel, 136 Ariz. 188, 665 P.2d 70 (1983) (defendant killed victim); State v. Gillies, 135 Ariz. 500, 662 P.2d 1007 (1983) (defendant took an active and deliberate part in the killing). 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. Thus it appears that about three-fifths of the States and the District of Columbia have rejected the position the Court adopts today. Greenawalt and sons Ricky and Raymond Tison were arrested. 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. 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. Together with Tison v. Arizona, also on certiorari to the same court (see this Court's Rule 19.4). Clines v. State, 280 Ark. 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. 142 Ariz., at 462, 690 P.2d, at 763; see also App. 142 Ariz. 446, 448, 690 P.2d 747, 749 (1984); 142 Ariz., at 456, 690 P.2d, at 757. Another Love Island couple have sadly gone their separate ways after nearly 18 months together. for Cert. Post, at ----. 3001, 77 L.Ed.2d 637 (1983); Enmund v. Florida, 458 U.S. 782, 102 S.Ct. No. denied, 474 U.S. 975, 106 S.Ct. In. Nevertheless, the judge sentenced both petitioners to death. Thus we make some approximation to the ideal of justice of treating morally like cases alike and morally different ones differently." denied, 469 U.S. 1066, 105 S.Ct. The couple's niece survived long enough to crawl a quarter mile before succumbing to her injuries. 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. Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 283. 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). Unlike Enmund, however, the Tisons will be the first individuals in over 30 years to be executed for such behavior. 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. Petitioner did nothing to interfere. . 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. . 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. But their sentences were set aside by the Arizona Supreme Court in 1989. Id., at 801, 102 S.Ct., at 3378. 2 * Gary Tison was sentenced to life imprisonment as the result of a prison escape during the course of which he had killed a guard. Clergy" would be spared. The Tisons got into the Mazda and drove away, continuing their flight. 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. To illustrate that intention cannot be dispositive, the Court offers as examples "the person who tortures another not caring whether the victim lives or dies, or the robber who shoots someone in the course of the robbery, utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim's property." The Court held that capital punishment was disproportional in these cases. The Tison family assembled a large arsenal of weapons for this purpose. Raymond recalled being at the Mazda filling the water jug "when we started hearing the shots." 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. . thomas dowd recorded ornette coleman and his double quartet? beyond present human ability." The Court then explained, and rejected, the felony-murder doctrine as a theory of capital culpability. 163.095(d), 163.115(1)(b) (1985); Tex. . . He assisted in escorting the victims to the murder site. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. denied, 464 U.S. 986, 104 S.Ct. 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." (equating intent with purposeful conduct); see also Perkins, A Rationale of Mens Rea, 52 Harv.L.Rev. Oregon now authorizes capital punishment for felony murders when the defendant intends to kill. The gang leader Gary Tison died in the Arizona desert, but his escape partner, Randy Greenawalt, spent 18 years on Arizonas death row. 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. Thus, a conviction for attempted robbery was a misdemeanor, but a homicide committed in the attempt was murder and punishable by death." . The Court's second reason for abandoning the intent requirement is based on its survey of state statutes authorizing the death penalty for felony murder, and on a handful of state cases.12 On this basis, the Court concludes that "[o]nly a small minority of those jurisdictions imposing capital punishment for felony murder have rejected the possibility of a capital sentence absent an intent to kill, and we do not find this minority position constitutionally required." The Court then remands the case for a determination by the state court whether petitioners are culpable under this new standard. 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. 1986); Utah Code Ann. 2726, 33 L.Ed.2d 346 (1972). App. Enmund held that when "intent to kill" results in its logical though not inevitable consequence the taking of human lifethe Eighth Amendment permits the State to exact the death penalty after a careful weighing of the aggravating and mitigating circumstances. Participants in violent felonies like armed robberies can frequently "anticipat[e] that lethal force . 1, 3, 4 (1531); 1 Edw. Ibid. The court then reviewed, in a passage this Court quotes at length, ante, at 144-145, petitioners' conduct during the escape and subsequent flight. 1454, 1466, 28 L.Ed.2d 711 (1971) (emphasis added). He stood by and watched the killing, making no effort to assist the victims before, during, or after the shooting. "[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. 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. John Lyons and his family stopped to help, and were taken by gunpoint into the desert. Ariz.Rev.Stat.Ann. Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. The sons conditioned their participation on their father's promise that no one would get hurt; during the breakout, their father kept his word. In my opinion this very fact had a severe influence upon the personality structure of these youngsters. The Tison family assembled a large arsenal of weapons for this purpose. 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. See Ariz.Rev.Stat.Ann. Killing without a motive can usually be just as wicked as killing after detached reflection about one's goals." 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. Only 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. 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. 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." In the most recent such case, Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. Thus the Court's findings about petitioners' mental states regarding the murders are based solely on inferences from petitioners' participation in the underlying felonies. . For example, the Court quotes Professor Fletcher's observation that "the Model Penal Code treats reckless killing . And it's just something we are going to live with the rest of our lives. 283, quoted infra, at ----. 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. 14, 1979, hearing). The jury could have concluded that he was there, a few hundred feet away, waiting to help the robbers escape with the Kerseys' money. "American criminal law has long considered a defendant's intentionand therefore his moral guiltto be critical to the 'degree of [his] criminal culpability.' 2903.01(B)-(D), 2929.02(A), 2929.04(A)(7) (1982); Ore.Rev.Stat. Ariz.Rev.Stat.Ann. 1473(c)(6)(D). 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. They cannot serve, however, as independent grounds for imposing the death penalty. Tison was under a mesquite tree, about a mile and half from the where the van crashed. 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. Ganter and a codefendant committed an armed robbery of a store, during which Ganter killed one of the store's owners. " 458 U.S., at 800, 102 S.Ct., at 3378 (citation omitted). . 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 murderers. Alan M. Dershowitz, Cambridge, Mass., for petitioners. With regard to deterrence, the Court was "quite unconvinced . This Court denied the Tisons' petition for certiorari. In Enmund v. Florida, this Court reversed the death sentence of a defendant convicted under Florida's felony-murder rule. Other intentional homicides, though criminal, are often felt undeserving of the death penalty those that are the result of provocation. The story of Gary Tison's fateful final escape from those who were there Nearly 40 years later, the violent tale of the sons who broke their father and another killer out of prison has lost. 1429, 79 L.Ed.2d 753 (1984); State v. Richmond, 136 Ariz. 312, 666 P.2d 57 (defendant intended to kill, participated in assault that led to death), cert. Like Enmund, the Tisons neither killed nor attempted or intended to kill anyone. Penal Code Ann. 3368, 73 L.Ed.2d 1140] (1982), wherein words of the Arizona Supreme Courtpetitioners 'did not specifically intend that the [victims] die, . 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 . App. 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. 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. fenwick high school football roster ricky and raymond tison 2020 "[S]ociety has made a judgment, which has deep roots in the history of the criminal law . ." 108352 (Super.Ct.Maricopa County 1981). 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"). She was unable to identify any one other than RICKY and RAYMOND TISON." During the third interview, Stott agreed to be hypnotized and apparently was hypnotized later that day. Of 739 death row inmates, only 41 did not participate in the fatal assault. 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. 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. Gary Tisonwas first jailed in 1960, after robbing a grocery store when he was just 25 years old. 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.1 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.
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