Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 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. 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. 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. In Furman v. Georgia, supra, 408 U.S. 238, 92 S.Ct. . 475 U.S. 1010, 106 S.Ct. 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. 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. 450 (1892)); cf. 458 U.S., at 799, 102 S.Ct., at 3377. 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." 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." Thus the Court's findings about petitioners' mental states regarding the murders are based solely on inferences from petitioners' participation in the underlying felonies. ("These facts . Vermont limited the death penalty to defendants who commit a second unrelated murder or murder a correctional officer. 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. . Ricky Tison reported that John Lyons begged, in comments "more or less directed at everybody," "Jesus, don't kill me." 2861, 53 L.Ed.2d 982 (1977) (holding the death penalty disproportional to the crime of rape). 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." 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, 102 S.Ct. . 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. Justice WHITE stressed the importance of this distinction in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 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. This definition of intent is broader than that described by the Enmund Court. In. Tison was sent to Florence prison on a life sentence. When his wife came to visit,Tison escaped from the visiting room. The Tisons armed Greenawalt and their father, and the group, brandishing their weapons, locked the prison guards and visitors present in a storage closet. Ricky Wayne TISON and Raymond Curtis Tison, Petitionersv.ARIZONA. 2. 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. 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. 108352 (Super.Ct. Nevertheless, the judge sentenced both petitioners to death. 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. 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. 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. Ricky and Raymond Tison initially were sentenced to death. Despite its earlier holding that petitioners had not killed or intended to kill anyone, the Arizona Supreme Court again upheld the Tisons' sentences. 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. 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. The couple's niece survived long enough to crawl a quarter mile before succumbing to her injuries. Creation of a new category of culpability is not enough to distinguish this case from Enmund. . . . As explained in the Commentaries on the Model Penal Code: "At common law all felonies were punishable by death. 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." Id., at 801, 102 S.Ct., at 3378. Enmund also clearly dealt with the other polar case: the felony murderer who actually killed, attempted to kill, or intended to kill. 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. See Carlos v. Superior Court, supra, at 147-152, 197 Cal.Rptr., at 90-94, 672 P.2d, at 873-877. Brief for Petitioners 11-12, n. 16. Ibid. Ariz.Rev.Stat.Ann. 544, 551, 54 L.Ed. . They rounded up guards and visitors and locked them in a storage closet, then the five men walked slowly out of the prison. " 458 U.S., at 800, 102 S.Ct., at 3378 (citation omitted). 142 Ariz., at 462, 690 P.2d, at 763; see also App. 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. Ricky stated that they had returned with the water, but 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. denied sub nom. Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. See Ariz.Rev.Stat.Ann. Since attempts were punished as misdemeanors, . 458 U.S., at 796, 102 S.Ct., at 3376.16 Of the 64 persons on 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.17 Thus, like Enmund, the Tisons' sentence appears to be an aberration within Arizona itself as well as nationally and internationally. 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.' 1328, 79 L.Ed.2d 723 (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. 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. One felony-murder case worth noting in this regard is People v. Ganter, 56 Ill.App.3d 316, 14 Ill.Dec. 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. 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. 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. Moreover, a number of state courts have interpreted Enmund to permit the imposition of the death penalty in such aggravated felony murders. Raymond stood out in front of the Lincoln; the other four armed themselves and lay in wait by the side of the road. He stood by and watched the killing, making no effort to assist the victims before, during, or after the shooting. Vermont has further narrowed the circumstances in which it authorizes capital punishment: now only the murderers of correctional officers may be subject to death. 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,8 and the three States which simply require some additional aggravation before imposing the death penalty upon a felony murderer,9 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. 1328, 79 L.Ed.2d 723 (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. 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. Petitioners argue strenuously that they did not "intend to kill" as that concept has been generally understood in the common law. Some . 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. 458 U.S., at 794, 102 S.Ct., at 3375. . 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, 205 Cal.Rptr. Tison was doing life for killing a Phoenix jail guard in 1967. 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.6 Both, however, expressed feelings of surprise, helplessness, and regret. It found that neither the deterrent nor the retributive purposes of the death penalty were advanced by imposing the death penalty upon Enmund. Gary Tison fled into the desert. . Had it done so, it would have discovered that, even including the 65 executions since Enmund, "[t]he 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. Citation481 U.S. 137, 107 S. Ct. 1676, 95 L. Ed. 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. And when this [killing of the kidnap victims] came about we were not expecting it. Enmund is only one of a series of cases that have framed the proportionality inquiry in this way. "Give us some water just leave us here and you all go home". Id., at 91, 43 S.Ct., at 266. Gary Tison, who vowed never to be taken alive, escaped. 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. did not plot in advance that these homicides would take place, or . As Raymond showed John Lyons the flat tire on the Lincoln, the other Tisons and Greenawalt emerged. * * * * *. 6-2-101, 6-2-102(h)(iv) (1983). The Framers provided in the Eighth Amendment the limiting principles otherwise absent in the prevailing theories of punishment. thomas dowd recorded ornette coleman and his double quartet? 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." 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. Once committed, it was too late and there does not appear to be any true defense based on brainwashing, mental deficiency, mental illness or irresistible urge. The Court has since reiterated that "Enmund . That's when they came across James and Margene Judge, Texas newlyweds honeymooning in Colorado to see the Dallas Cowboys play the Denver Broncos. The group made a safe exit, but a few . denied, 474 U.S. 975, 106 S.Ct. Ibid. The Arizona Supreme Court's attempted reformulation of intent to kill amounts to little more than a restatement of the felony-murder rule itself. 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." 607, 83 L.Ed.2d 716 (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. We accept this as true. G. Fletcher, Rethinking Criminal Law 254 (1978) (footnote omitted; emphasis added). This marked the end of the manhunt for escaped killers Gary Tison and Randy Greenawalt, and Tison's sons, Donald, Raymond and Rick. 15A-2000(f)(4) (1983). 2C:11-3a(a), (c) (West Supp.1986). 834, 88 L.Ed.2d 805 (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, 106 S.Ct. App. The Lyons family was forced into the backseat of the Lincoln. 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 . 793 (1910) (quoting O'Neil v. Vermont, 144 U.S. 323, 339-340, 12 S.Ct. App. 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. Cal. The father fled. The Court then remands the case for a determination by the state court whether petitioners are culpable under this new standard. William J. Schafer, III, Phoenix, Ariz., for respondent. 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 State v. Emery, 141 Ariz. 549, 554, 688 P.2d 175, 180 (1984). ( Tison v. Arizona, supra, 481 U.S. at p. 139, 107 S.Ct.