Ricky Wayne TISON and Raymond Curtis Tison, Petitioners
Justice O'CONNOR delivered the opinion of the Court.
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, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and, therefore, vacate the judgments below and remand the case for further proceedings not inconsistent with this opinion.
[p. 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 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 When they refused to do so, the bargain was rescinded and they were tried, convicted, and sentenced to death.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.
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 [p. 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 "[g]ive 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.
[p. 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 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 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 [p. 142] of the four murders under these
accomplice liability and felony-murder statutes.[n. 1]
1. 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.
* * *
Petitioners then collaterally attacked their death sentences in state postconviction proceedings alleging that Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (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 . . . "the dictate of Enmund is satisfied" . . . .
* * *
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:
" '[T]he 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 [p. 147] of section 782.04(1)(a).' 399 So.2d , at 1370 [Fla.1981]." Enmund v. Florida, 458 U.S., at 786, 102 S.Ct., at 3371.
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, 102 S.Ct., at 3372. 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, 102 S.Ct., at 3372. 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 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 person a [statutory] mitigating circumstance." Id., at 792, 102 S.Ct., at 3374. 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, 102 S.Ct., at 3373.
[p. 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.
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, 30 S.Ct. 544, 551, 54 L.Ed. 793 (1910) (quoting O'Neil v. Vermont, 144 U.S. 323, 339-340, 12 S.Ct. 693, 699, 36 L.Ed. 450 (1892)); cf. Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (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, 102 S.Ct., at 3377. In reaching this conclusion, the Court relied upon the fact that killing only rarely occurred during the course of robberies, [p. 149] 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. The Court acknowledged, however, that "[i]t 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, 102 S.Ct., at 3377.
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, 96 S.Ct. 2909, 2931, 49 L.Ed.2d 859 (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, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (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, 458 U.S., at 798, 102 S.Ct., at 3377 (quoting Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (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, 458 U.S., at 790-791, 102 S.Ct., at 3373- 74, 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 [p. 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.
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, 438 U.S., at 625- 626, 98 S.Ct., at 2983-2984 (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 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 ... [p. 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 to us. Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (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 [p. 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 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.
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. [n. 4] The largest number of States still fall into the
two intermediate categories discussed in Enmund. Four States authorize
the death penalty in [p. 153] felony-murder cases upon a showing of culpable
mental state such as recklessness or extreme indifference to human life.
[n. 5] Two jurisdictions require that the defendant's participation
be substantial [n. 6] and the statutes of at least six more, including
Arizona, take minor participation in the felony expressly into account
in mitigation of the murder. [n. 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. 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, [n. 8] and the three States which simply require some
additional aggravation before imposing the death penalty upon a felony
murderer, [n. 9] [p. 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. [n. 10] This substantial and
recent legislative authorization of the death penalty for the crime of
felony murder regardless of the absence of a finding of an intent to kill
powerfully suggests that our society does not reject the death penalty
as grossly excessive under these circumstances, Gregg v. Georgia, 428 U.S.,
at 179-181, 96 S.Ct., at 2928-2929 (opinion of Stewart, POWELL, and STEVENS,
JJ.); see also Coker v. Georgia, 433 U.S., at 594, 97 S.Ct., at 2867.
4. 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).
5. 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, 9-1(a)(3), 9- 1(b)(6) (1986).
6. Conn.Gen.Stat. § 53a-46a(g)(4) (1985); 49 U.S.C.App. § 1473(c)(6)(D).
7. 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).
8. 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).
. . . .
9. Idaho Code § 19-2515(g) (Supp.1986); Okla.Stat., Tit. 21, § 701.12 (1981); S.D. Codified Laws § 23A-27A-1 (Supp.1986).
10. 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).
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." . . . .
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.
[p. 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, 98 S.Ct. 2954, 57 L.Ed.2d 973 (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 "[t]he absence of direct proof that the defendant intended to cause the death of the victim." Id., at 608, 98 S.Ct., at 2966 (opinion of Burger, C.J.); see also Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (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.
[p. 157] 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. 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) ("[I]n 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 [p. 158] sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result.
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 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. [n. 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. Cabana
v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986).
12. 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.
It is so ordered.