tison arizona argued november decided april petitioner brothers along members family planned effected escape father prison serving life sentence killed guard previous escape petitioners entered prison chest filled guns armed father another convicted murderer later helped abduct detain rob family four watched father convict murder members family shotguns although later stated surprised shooting neither petitioner made effort help victims drove away victims car rest escape party arizona affirmed petitioners individual convictions capital murder state statutes petitioners collaterally attacked death sentences state postconviction proceedings alleging enmund florida decided interim required reversal however state determined executed holding enmund requires finding intent kill interpreting phrase include situations defendant intended contemplated anticipated lethal force might used life might taken accomplishing underlying felony despite finding petitioners specifically intend victims die plan homicides advance actually fire shots ruled requisite intent established evidence petitioners played active part planning executing breakout events lead murders nothing interfere killings disassociate killers afterward although one petitioners testified willing kill found anticipated use lethal force held although petitioners neither intended kill victims inflicted fatal wounds record might support finding culpable mental state reckless indifference human life eighth amendment prohibit death penalty disproportionate case defendant whose participation felony results murder major whose mental state one reckless indifference survey state laws judicial decisions enmund indicates societal consensus combination factors may justify death penalty even without specific intent kill reckless disregard human life also represents highly culpable mental state may support capital sentencing judgment combination major participation felony resulting death arizona affirmed death sentences upon finding defendants intended contemplated anticipated lethal force might used life might taken case must remanded pp vacated remanded delivered opinion rehnquist white powell scalia joined brennan filed dissenting opinion marshall joined parts ii iii blackmun stevens joined post together tison arizona also certiorari see rule alan dershowitz appointment argued cause petitioners briefs stephen oleskey cynthia hamilton susan estrich nathan dershowitz william schafer iii argued cause respondent brief robert corbin attorney general arizona justice delivered opinion question presented whether petitioners participation events leading following murder four members family makes sentences death imposed arizona courts constitutionally permissible although neither petitioner specifically intended kill victims neither inflicted fatal gunshot wounds hold arizona applied erroneous standard making findings required enmund florida therefore vacate judgments remand case proceedings inconsistent opinion gary tison sentenced life imprisonment result prison escape course killed guard prison number years gary tison wife three sons donald ricky raymond gary brother joseph relatives made plans help gary tison escape see state dorothy tison cr super maricopa county tison family assembled large arsenal weapons purpose plans escape discussed gary tison insisted cellmate randy greenawalt also convicted murderer included prison break following facts largely evidenced petitioners detailed confessions given part plea bargain according terms state agreed seek death sentence arizona courts interpreted plea agreement require petitioners testify planning stages breakout refused bargain rescinded tried convicted sentenced death july three tison brothers entered arizona state prison florence carrying large ice chest filled guns tisons armed greenawalt father group brandishing weapons locked prison guards visitors present storage closet five men fled prison grounds tisons ford galaxy automobile shots fired prison leaving prison men abandoned ford automobile proceeded isolated house white lincoln automobile brothers parked hospital near prison house lincoln automobile flat tire spare tire pressed service two nights house group drove toward flagstaff group traveled back roads secondary highways desert another tire blew group decided flag passing motorist steal car raymond stood front lincoln four armed lay wait side road one car passed without stopping second car mazda occupied john lyons wife donnelda son christopher niece theresa tyson pulled render aid raymond showed john lyons flat tire lincoln tisons greenawalt emerged lyons family forced backseat lincoln raymond donald drove lincoln dirt road highway gas line service road farther desert gary tison ricky tison randy greenawalt followed lyons mazda two cars parked trunk trunk lyons family ordered stand front lincoln headlights tisons transferred belongings lincoln mazda discovered guns money mazda kept put rest lyons possessions lincoln gary tison told raymond drive lincoln still farther desert raymond others guarded lyons theresa tyson gary fired shotgun radiator presumably completely disable vehicle lyons theresa tyson escorted lincoln ordered stand headlights ricky tison reported john lyons begged comments less directed everybody jesus kill gary tison said thinking app john lyons asked tisons greenawalt ive us water leave us go home gary tison told sons go back mazda get water raymond later explained father like conflict think baby sure petitioners statements diverge extent appears went back towards mazda along donald randy greenawalt gary tison stayed lincoln guarding victims raymond recalled mazda filling water jug started hearing shots ricky said brothers gave water jug gary tison randy greenawalt went behind lincoln spoke briefly raised shotguns started firing event petitioners agree saw greenawalt father brutally murder four captives repeated blasts shotguns neither made effort help victims though later stated surprised shooting tisons got mazda drove away continuing flight physical evidence suggested theresa tyson managed crawl away bloodbath severely injured died desert tisons left several days later tisons greenawalt apprehended shootout police roadblock donald tison killed gary tison escaped desert subsequently died exposure raymond ricky tison randy greenawalt captured tried jointly crimes associated prison break shootout roadblock convicted sentenced state individually tried petitioners capital murder four victims well associated crimes armed robbery kidnaping car theft capital murder charges based arizona law providing killing occurring perpetration robbery kidnaping capital murder rev stat ann repealed participant kidnaping robbery legally responsible acts accomplices rev stat ann repealed petitioners convicted four murders accomplice liability statutes arizona law also provided capital sentencing proceeding conducted without jury determine whether crime sufficiently aggravated warrant death sentence rev stat ann supp repealed statute set six aggravating four mitigating factors rev stat ann supp repealed judge found three statutory aggravating factors tisons created grave risk death others victims murders committed pecuniary gain murders especially heinous judge found statutory mitigating factor importantly judge specifically found crime mitigated fact petitioners participation relatively minor rev stat ann supp repealed rather found participation petitioner crimes giving rise application felony murder rule case substantial app trial judge also specifically found reasonably foreseen conduct cause create grave risk death rev stat ann supp repealed find however three nonstatutory mitigating factors petitioners youth ricky raymond neither prior felony records convicted murders rule nevertheless judge sentenced petitioners death direct appeal arizona affirmed found record establishes ricky raymond tison present homicides took place occurred part course escape continuous attempt prevent recapture deaths occurred assistance specifically intend lyonses theresa tyson die plot advance homicides take place actually pull triggers guns inflicted fatal wounds little significance state ricky wayne tison petitioners collaterally attacked death sentences state postconviction proceedings alleging enmund florida decided interim required reversal divided arizona interpreting enmund require finding intent kill declared raymond tison case dictate enmund satisfied writing intend sic kill includes situation defendant intended contemplated anticipated lethal force might used life might taken accomplishing underlying felony enmund supra state emery filed june present case evidence show petitioner killed attempted kill evidence demonstrate beyond reasonable doubt however petitioner intended kill petitioner played active part preparing breakout including obtaining getaway car various weapons breakout scene petitioner played crucial role among things holding gun prison guards petitioner knew gary tison murder conviction arose killing guard earlier prison escape attempt thus petitioner anticipate use lethal force attempt flee confinement fact later said escape willing personally kill close life death situation recognized escape possibility killings use lethal force petitioner contemplated indeed occurred gang abducted people stopped highway render aid petitioner played active part events led murders assisted abduction flagging victims drove members gang remained hidden armed assisted escorting victims murder site site petitioner ricky tison greenawalt placed gang possessions victims mazda victims possessions gang disabled lincoln continental gary tison rendered lincoln inoperable firing engine compartment petitioner assisted escorting victims lincoln petitioner watched gary tison greenawalt fire direction victims petitioner nothing interfere killings petitioner nothing disassociate gary tison greenawalt instead used victims car continue joint venture venture lasted several days facts conclude petitioner intended kill petitioner participation moment firing fatal shots substantially gary tison greenawalt petitioner actively participated events leading death inter alia providing murder weapons helping abduct victims also petitioner present murder site nothing interfere murders murders even continued joint venture enmund unlike present case defendant actively participate events leading death example present case helping abduct victims present murder site ii enmund florida reversed death sentence defendant convicted florida rule enmund driver getaway car armed robbery dwelling occupants house elderly couple resisted enmund accomplices killed florida found inference enmund person car side road waiting help accomplices escape sufficient support sentence death evidence degree enmund participation jury likely inference person car side road near scene crimes jury concluded hundred feet away waiting help robbers escape kerseys money evidence therefore sufficient find appellant principal second degree constructively present aiding abetting commission crime robbery conclusion supports verdicts murder first degree basis felony murder portion section enmund florida surveying statutes enmund next examined behavior juries cases like enmund attempt assess american attitudes toward capital punishment cases death row inmates participate fatal assault physically present scene murder including enmund sentenced death absence finding collaborated scheme designed kill found fact death row inmates sentenced death absent intent kill physical presence direct participation fatal assault persuasive evidence american juries considered death sentence disproportional felony murder simpliciter background undertook proportionality analysis armed robbery serious offense one penalty death plainly excessive imposition death penalty robbery therefore violates eighth fourteenth amendments proscription punishments excessive length severity greatly disproportioned offenses charged weems quoting vermont cf coker georgia holding death penalty disproportional crime rape furthermore found enmund degree participation murders tangential said justify sentence death found neither deterrent retributive purposes death penalty advanced imposing death penalty upon enmund enmund unconvinced threat death penalty imposed murder measurably deter one kill intention purpose life taken reaching conclusion relied upon fact killing rarely occurred course robberies killing occur even rarely resulted death sentences evidence support inference defendant intended kill acknowledged however different likelihood killing course robbery substantial one share blame killing somehow participated felony difference also related second purpose capital punishment retribution heart retribution rationale criminal sentence must directly related personal culpability criminal offender generally wide discretion deciding much retribution exact given case death penalty unique severity irrevocability gregg georgia requires state inquire relevant facets character record individual offender woodson north carolina thus enmund case focus culpability committed robbery shot victims insist individualized consideration constitutional requirement imposing death sentence enmund florida supra quoting lockett ohio emphasis original since enmund participation felony murder attenuated since proof enmund culpable mental state enmund florida supra death penalty excessive retribution crimes enmund explicitly dealt two distinct subsets felony murders assessing whether enmund sentence disproportional eighth amendment one pole enmund minor actor armed robbery scene neither intended kill found culpable mental state small minority even authorized death penalty circumstances even within jurisdictions death penalty almost never exacted crime held capital punishment disproportional cases enmund also clearly dealt polar case felony murderer actually killed attempted kill intended kill clearly held equally small minority jurisdictions limited death penalty circumstances continue exact accordance local law circumstances warranted tison brothers cases fall neither neat categories petitioners argue strenuously intend kill concept generally understood common law accept true traditionally one intends certain consequences desires acts cause consequences knows consequences substantially certain result acts lafave scott criminal law see lockett ohio supra opinion white equating intent purposeful conduct see also perkins rationale mens rea harv rev petitioners point evidence either ricky raymond tison took act desired substantially certain cause death arizona attempt argue facts case supported inference intent traditional sense instead arizona attempted reformulate intent kill species foreseeability arizona wrote intend sic kill includes situation defendant intended contemplated anticipated lethal force might used life might taken accomplishing underlying felony hand equally clear petitioners also fall outside category felony murderers enmund explicitly held death penalty disproportional degree participation crimes major rather minor record support finding culpable mental state reckless indifference human life take facts arizona given us cabana bullock raymond tison brought arsenal lethal weapons arizona state prison handed two convicted murderers one knew killed prison guard course previous escape attempt admission prepared kill furtherance prison break performed crucial role flagging passing car occupied innocent family whose fate entrusted known killers previously armed robbed people direction guarded victims gunpoint considered next stood watched killing making effort assist victims shooting instead chose assist killers continuing criminal endeavors ending gun battle police final showdown ricky tison behavior differs slight details like raymond intentionally brought guns prison arm murderers foreseen lethal force might used particularly since knew father previous escape attempt resulted murder participated fully kidnaping robbery watched killing chose aid placed position kill rather victims facts indicate tison brothers participation crime anything minor also clearly support finding subjectively appreciated acts likely result taking innocent life issue raised case whether eighth amendment prohibits death penalty intermediate case defendant whose participation major whose mental state one reckless indifference value human life enmund specifically address point take task determining whether eighth amendment proportionality requirement bars death penalty circumstances like enmund find state legislatures judgment proportionality circumstances relevant constitutional inquiry largest number still fall two intermediate categories discussed enmund four authorize death penalty cases upon showing culpable mental state recklessness extreme indifference human life two jurisdictions require defendant participation substantial statutes least six including arizona take minor participation felony expressly account mitigation murder requirements significantly overlap case general greater defendant participation felony murder likely acted reckless indifference human life minimum however said jurisdictions well six enmund classified along florida permitting capital punishment felony murder simpliciter three simply require additional aggravation imposing death penalty upon felony murderer specifically authorize death penalty case though defendant mental state fell short intent kill defendant major actor felony knew death highly likely occur hand even enmund authorizing capital punishment forbid imposition death penalty even though defendant participation felony murder major likelihood killing substantial raise inference extreme recklessness substantial recent legislative authorization death penalty crime felony murder regardless absence finding intent kill powerfully suggests society reject death penalty grossly excessive circumstances gregg georgia opinion stewart powell stevens jj see also coker georgia moreover number state courts interpreted enmund permit imposition death penalty aggravated felony murders approve disapprove judgments proportionality reached particular facts cases note apparent consensus substantial participation violent felony circumstances likely result loss innocent human life may justify death penalty even absent intent kill see clines state ark armed forced entry nighttime robbery private dwelling known occupied plus evidence killing contemplated cert denied deputy state del defendant present scene robbed victims conflicting evidence participation killing cert pending ruffin state defendant present assisted codefendant kidnaping raped victim made effort interfere codefendant killing victim continued joint venture people davis defendant present scene participated crimes holman triggerman holman killed similar circumstances cert denied selvage state tex cr app participant jewelry store robbery course security guard killed evidence defendant shot guard fire weapon gave chase see also allen state result enmund florida turn mere fact enmund convicted felony murder important note attenuated enmund responsibility deaths victims case cert denied backdrop consider proportionality death penalty midrange cases majority american jurisdictions clearly authorize capital punishment american courts nearly reluctant impose death case felony murder simpliciter critical facet individualized determination culpability required capital cases mental state defendant commits crime deeply ingrained legal tradition idea purposeful criminal conduct serious offense therefore severely punished ancient concept malice aforethought early attempt focus mental state order distinguish deserved death benefit clergy spared hen ch edw ch time malice aforethought came inferred mere act killing variety circumstances reaction pennsylvania became first american jurisdiction distinguish degrees murder reserving capital punishment wilful deliberate premeditated killings felony murders laws ch pp recently lockett ohio plurality opinion made clear defendant mental state critical weighing defendant culpability system guided discretion vacating death sentence imposed ohio statute permit sentencing authority take account absence direct proof defendant intended cause death victim opinion burger see also eddings oklahoma adopting position lockett plurality enmund florida recognized importance mental state explicitly permitting death penalty least cases felony murderer intended kill forbidding case minor actor shown culpable mental state narrow focus question whether given defendant intended kill however highly unsatisfactory means definitively distinguishing culpable dangerous murderers many intend kill criminally liable act justification excuse intentional homicides though criminal often felt undeserving death penalty result provocation hand nonintentional murderers may among dangerous inhumane person tortures another caring whether victim lives dies robber shoots someone course robbery utterly indifferent fact desire rob may unintended consequence killing victim well taking victim property reckless indifference value human life may every bit shocking moral sense intent kill indeed reason common law modern criminal codes alike classified behavior occurred case along intentional murders see fletcher rethinking criminal law pp common law intentional killing basis establishing egregious form criminal homicide example model penal code treats reckless killing manifesting extreme indifference value human life equivalent purposeful knowing killing enmund held intent kill results logical though inevitable consequence taking human life eighth amendment permits state exact death penalty careful weighing aggravating mitigating circumstances similarly hold reckless disregard human life implicit knowingly engaging criminal activities known carry grave risk death represents highly culpable mental state mental state may taken account making capital sentencing judgment conduct causes natural though also inevitable lethal result petitioners personal involvement crimes minor rather specifically found trial substantial far merely sitting car away actual scene murders acting getaway driver robbery petitioner actively involved every element physically present entire sequence criminal activity culminating murder lyons family subsequent flight tisons high level participation crimes implicates resulting deaths accordingly fall well within overlapping second intermediate position focuses defendant degree participation felony small minority jurisdictions imposing capital punishment felony murder rejected possibility capital sentence absent intent kill find minority position constitutionally required attempt precisely delineate particular types conduct mind warranting imposition death penalty rather simply hold major participation felony committed combined reckless indifference human life sufficient satisfy enmund culpability requirement arizona courts clearly found former exists vacate judgments remand determination latter proceedings inconsistent opinion cabana bullock ordered footnotes petitioners devote substantial portion brief merits arguing arizona given unconstitutionally broad construction aggravating factors capital sentencing statute see godfrey georgia granted certiorari following question december decision arizona execute petitioners conflict holding enmund florida words arizona petitioners specifically intend victims die plot advance homicides take place actually pull triggers guns inflicted fatal wounds pet cert view question presented fairly encompass attack arizona construction aggravating factors express view subject see rule vermont fell none categories vermont limited death penalty defendants commit second unrelated murder murder correctional officer see enmund florida state statutes discussed enmund florida largely unchanged mississippi nevada modified statutes require finding defendant killed attempted kill intended kill lethal force employed presumably light enmund miss code ann supp rev stat new jersey joined ranks imposing capital punishment intentional murders felony murders stat ann west supp oregon authorizes capital punishment felony murders defendant intends kill rev stat vermont narrowed circumstances authorizes capital punishment murderers correctional officers may subject death stat tit supp ark stat ann supp del code tit rev stat rev ch stat app rev stat ann supp rev stat supp ind code supp mont code ann neb rev stat stat cal penal code ann west supp stat code code supp code ann wyo stat iv dissent objects classification california among whose statutes authorize capital punishment felony murder simpliciter ground california carlos superior cal construed capital murder statute require finding intent kill post california light perceived federal constitutional limitations stemming recent decision enmund see carlos superior supra idaho code supp okla tit codified laws supp code supp la rev stat ann west miss code ann supp rev stat stat ann west supp felony murder capital stat ann ohio rev code ann rev stat tex penal code ann supp utah code ann supp code supp fact arizona purported find intent kill affirming death sentences enmund provides support proposition ordinarily considered major participation violent felony resulting death combined reckless indifference towards human life insufficient support capital sentence cf post arizona made formal findings intent kill comply perceived dictate enmund fact standard applied arizona classic intent one rather whether defendant contemplated anticipated intended lethal force might used state emery shown supra standard amounted little requirement killing foreseeable although state two requirements separately often overlap example doubt felonies one properly conclude major participant necessarily exhibits reckless indifference value human life moreover even cases fact defendant major participant felony suffice establish reckless indifference fact still often provide significant support finding justice brennan justice marshall joins justice blackmun justice stevens join parts dissenting murders gary tison randy greenawalt committed revolt grieve learn deaths lyons family theresa tyson first reported many arizona erupted towering yell retribution justice yet gary tison central figure tragedy man family arrange greenawalt escape prison man chose greenawalt murder family sons stood died exposure desert society arrest bring trial question case presents punishment arizona may constitutionally exact two gary tison sons role events precedents constitution compel different answer one reaches today dissent doctrine person commits felony liable murder occurs commission felony regardless whether commits attempts commit intended commit murder doctrine thus imposes liability felons killings committed cofelons felony curious doctrine living fossil legal era felonies punishable death circumstances state mind felon respect murder understandably superfluous executed simply intentionally committing felony today american jurisdictions virtually european commonwealth countries felon executed murder commit specifically intend attempt commit american jurisdictions however authority impose death circumstances still persists arizona jurisdiction proceedings illustrate doctrine defendant may held liable sentenced death murder neither committed intended commit prosecutor argued jury matter gary tison randy greenawalt caused killings rule tisons nonetheless found legally responsible killings app trial judge instructions consistent prosecutor argument sentencing petitioners trial find killed attempted kill intended kill anyone nevertheless upheld jury verdict ricky raymond tison liable doctrine murders father randy greenawalt committed furthermore found aggravating factor petitioners heinous cruel depraved manner gary tison randy greenawalt carried murders result imposed death sentence arizona affirmed held tisons specifically intend lyons theresa tyson die plot advance homicides take place actually pull triggers guns inflicted fatal wounds state tison found facts little significance however shooting controlling since brothers took part robbery kidnapping present assisting detention lyonses theresa tyson homicides committed state tison thus arizona courts acknowledged petitioners neither participated shootings intended occur courts nonetheless imposed death sentence theory felony murder decision arizona addressed enmund florida question whether death valid penalty eighth fourteenth amendments one neither took life attempted take life intended take life question arose florida affirmed death sentence earl enmund accomplice armed robbery two cofelons killed two individuals felons intended rob enmund shoot anyone nothing record concerning enmund mental state regard killings florida held strictly liable killings doctrine enmund state reversing florida took note overwhelming evidence ociety rejection death penalty accomplice liability felony murders observed imposing death penalty upon enmund florida failed focus enmund conduct culpability emphasis original explained rejected doctrine theory capital culpability enmund kill intend kill thus culpability plainly different robbers killed yet state treated alike attributed enmund culpability killed kerseys impermissible eighth amendment ibid emphasis added intend sic kill includes situation defendant intended contemplated anticipated lethal force might used life might taken accomplishing underlying felony arizona thus attempted comply enmund making finding petitioners mental state foreseeability standard applied erroneous however possibility bloodshed inherent commission violent felony possibility generally foreseeable foreseen ante lower standard participant violent felony killing occurred including enmund liable death penalty therefore properly rejects today lower misguided attempt preserve earlier judgment equating intent foreseeable harm ante view rejection completes analytic work necessary decide case basis petitioners sentences vacated judgment reversed chosen instead announce new substantive standard capital liability defendant major participation felony committed combined reckless indifference human life sufficient satisfy enmund culpability requirement ante remands case determination state whether petitioners culpable new standard nevertheless observes dictum record support finding culpable mental state reckless indifference human life ante see also ante facts clearly support finding sons subjectively appreciated acts likely result taking innocent life join part first dictum new category mens rea applicable petitioners supported record second even assuming petitioners may categorized objective evidence eighth amendment jurisprudence demonstrate death penalty disproportionate punishment category defendants finally fact reaches different conclusion illustrative profound problems continue plague capital sentencing ii facts relies sufficient view support conclusion petitioners acted reckless disregard human life even decision restrict vision limited set facts arizona given us ante improper limiting facts lower found relevant foreseeability standard insulates evidence record directly relevant new standard articulated today evidence suggests question petitioners mental respect shootings much open one decided thorough evidentially hearing therefore stress nothing opinion abrogates state responsibility independently fairly consider relevant evidence applying new standard see cabana bullock considerations federalism comity counsel respect ability state courts carry role primary protectors rights criminal defendants evidence record overlooked today regarding petitioners mental respect shootings trivial example found petitioners made effort prior shooting assist victims uncontradicted statements petitioners prior shootings attempting find jug water give family app petitioners scene shooting watched occur raymond stated ricky still engaged repacking mazda finding water jug shootings occurred ricky stated returned water still distance farther room lincoln shootings started brothers turned away scene went back mazda neither stated anticipated shootings occur done anything prevent help victims afterward however expressed feelings surprise helplessness regret statement raymond illustrative well think know first came agreement dad nobody get hurt brothers wanted one hurt killing kidnap victims came expecting took us surprise much took family victims surprise expecting happen feel bad happening wish done something stop time happened late stop something going live rest lives always see also app iii notwithstanding unwarranted observations applicability new standard case basic flaw today decision failure conduct sort proportionality analysis constitution past cases require creation new category culpability enough distinguish case enmund must also establish death proportionate punishment individuals category words must demonstrate major participation felony state mind reckless indifference human life deserves punishment intending commit murder actually committing murder attempt conduct proportionality review kind performed past cases raising proportionality question solem helm enmund florida coker georgia instead offers two reasons support view one reason offers conclusion death proportionate punishment persons falling within new category limiting death penalty intend kill highly unsatisfactory means definitively distinguishing culpable dangerous murderers ante illustrate intention dispositive offers examples person tortures another caring whether victim lives dies robber shoots someone course robbery utterly indifferent fact desire rob may unintended consequence killing victim well taking victim property ibid emphasis added influential commentators approved use death penalty persons like given examples kill others circumstances manifesting extreme indifference value human life thus exception requirement intentional murders punished death might made persons actually commit act homicide enmund distinguishing accomplice case kill clearly reserved question constitutionality death penalty individuals relevant case enmund case like enmund involves accomplices kill thus although culpable dangerous murderers may killed without specifically intending kill considerably difficult apply rubric convincingly intend kill also killed precisely context defendant killed finding nevertheless intended kill seems indispensable establishing capital culpability important first note defendant committed act sentenced death applicability death penalty therefore turns entirely defendant mental state regard act committed another factors defendant major participation events surrounding killing defendant presence scene relevant insofar illuminate defendant mental state regard killings serve however independent grounds imposing death penalty second evaluating defendant mental state determination defendant acted intent qualitatively different determination defendant acted reckless indifference human life difference lies nature choice made reckless actor chosen bring killing way intentional actor person chooses act recklessly indifferent possibility fatal consequences often deserves serious punishment person chosen kill moral criminal culpability different degree one killed intended kill importance distinguishing different choices rooted belief freedom human consequent ability duty normal individual choose good evil morissette faithful belief universal persistent mature systems law criminal law must ensure punishment individual receives conforms choices individual made differential punishment reckless intentional actions therefore essential retain relation criminal liability moral culpability criminal justice depends people washington cal opinion traynor state ultimate sanction ever used must reserved whose culpability greatest cf enmund fundamental causing harm intentionally must punished severely causing harm unintentionally citation omitted gypsum distinguishing intentional reckless action assessing culpability particularly important cases justice white stressed importance distinction lockett ohio case petitioner death sentence vacated grounds ociety made judgment deep roots history criminal law distinguishing least purpose imposition death penalty culpability acted acted without purpose destroy life type conduct ohio punish death requires degree mens rea defined ali model penal code recklessness conduct undertaken knowledge death likely follow since hold death may inflicted killings consistent eighth amendment without finding defendant engaged conduct conscious purpose producing death sentences must set aside emphasis added footnotes omitted quite unconvinced threat death penalty imposed murder measurably deter one kill intention purpose life taken instead seems likely capital punishment serve deterrent murder result premeditation deliberation enmund supra second reason abandoning intent requirement based survey state statutes authorizing death penalty felony murder handful state cases basis concludes nly small minority jurisdictions imposing capital punishment felony murder rejected possibility capital sentence absent intent kill find minority position constitutionally required ante emphasis added thus us believe majority american jurisdictions clearly authorize capital punishment cases ante case first excludes survey jurisdictions abolished death penalty authorized circumstances different presented jurisdictions included considered jurisdictions require finding intent kill order impose death sentence felony murder one discovers approximately american jurisdictions authorize death penalty nontriggerman absent finding intended kill thus contrary implication view consonant majority american jurisdictions view distinctly minority position second critical examine simply jurisdictions authorize death penalty given circumstance actually impose evidence penalty imposed infrequently suggests jurisdictions reluctant apply also applied imposition arbitrary therefore unconstitutional furman georgia thus enmund examined relevant statistics imposition death penalty accomplices felony murder found executions cases nontriggerman felony murderer executed six executions took place emphasis added evidence obviously militates imposing death penalty petitioners powerfully imposing enmund enmund also looked imposition death penalty felony murder within florida state sentenced enmund murderers death row found intended take life finding intent triggerman thus one case enmund someone tisons neither killed intended kill received death sentence finally noted commonwealth european country enmund executed since either abolished never employed doctrine today neither reviews updates evidence done discovered even including executions since enmund fact remains aware single person convicted felony murder past quarter century kill attempt kill intend death victim executed persons death row arizona raised lost enmund challenge arizona found either killed specifically intended kill thus like enmund tisons sentence appears aberration within arizona well nationally internationally objective evidence statutes roughly appear authorize death penalty defendants new category therefore inadequate substitute proper proportionality analysis persuasive evidence punishment unconstitutional enmund constitutional tisons failure examine full range relevant evidence troubling simply examination revealed today examination treated constitutionally required whenever undertakes determine whether given punishment disproportionate severity given crime enmund one series cases framed proportionality inquiry way see coker georgia recent case solem helm summarized essence inquiry sum proportionality analysis eighth amendment guided objective criteria including gravity offense harshness penalty ii sentences imposed criminals jurisdiction iii sentences imposed commission crime jurisdictions emphasis added guidance essential determining constitutional limits state power punish limits must defined care simply death penalty involved social purposes said justify death penalty retribution deterrence justifications possess inadequate principles professor packer observed theory deterrence state may justify punishments boiling people oil slow painful death may thought deterrent crime quick painless one packer making punishment fit crime harv rev retribution core logic crude proportionality eye eye regarded constitutionally valid basis punishment punishment consistent individualized consideration defendant culpability lockett ohio administration criminal justice works channe society instinct retribution furman georgia stewart concurring without channeling state impose judgment execution torture appropriate retribution murder torture thus simple theory either deterrence retribution unfettered constitution results disturbing civil sensibilities inconsistent evolving standards decency society become rationally defensible cf trop dulles framers provided eighth amendment limiting principles otherwise absent prevailing theories punishment one principle may impose punishment disproportionate severity offense individual conduct culpability proportionality inquiry case overlooked evidence considerations essential inquiry surprising result appears incongruous ricky raymond tison similarly situated earl enmund every respect mattered decision enmund like enmund tisons neither killed attempted intended kill anyone like enmund tisons sentenced death intentional acts others tisons expect essential felony control unlike enmund however tisons first individuals years executed behavior conclude proportionality analysis result case reconciled analyses results previous cases ground alone dissent fact death penalty jurisprudence validate different results analytically indistinguishable cases suggests something profoundly disturbing faithlessness precedent work capital sentencing iv five negroes convicted murder first degree sentenced death state arkansas appealed order district dismissing writ habeas corpus moore dempsey crux appeal hurried conviction pressure mob without regard rights without according due process law ibid reversing order justice holmes stated following certainly true mere mistakes law course trial corrected habeas corpus case whole proceeding mask counsel jury judge swept fatal end irresistible wave public passion state courts failed correct wrong neither perfection machinery correction possibility trial counsel saw way avoiding immediate outbreak mob prevent securing petitioners constitutional rights furman georgia supra concluded state procedural machinery imperfect imposition death penalty become arbitrary therefore unconstitutional scant four years later however validated georgia new machinery executions resumed case state appears afforded petitioners procedures deemed sufficient produce constitutional sentencing decisions yet case moore perfection state machinery correction secured petitioners constitutional rights rarely state let alone western country ever execute person neither killed intended kill death sentences cruel unusual way struck lightning cruel unusual furman georgia supra stewart concurring case thus demonstrates furman also yet achieve system capable distinguishing cases death penalty imposed many cases white concurring makes difficult case challenge giving substantive content concept criminal culpability constitution demands sentencing decision merely procedures produce respond reasonable goals punishment decision execute petitioners like state courts decisions moore like decisions kill appears responsive less reason visceral demands urge employ doctrine accomplices undoubtedly strong killings stir public passion actual murderer beyond human grasp intuition sons daughters must sometimes punished sins father may deeply rooted consciousness yet punishment conforms closely retributive instincts eighth amendment tragically anachronistic society governed constitution case thus illustrates enduring truth justice harlan observation tasks identifying characteristics criminal homicides perpetrators call death penalty express ing characteristics language fairly understood applied sentencing authority appear beyond present human ability mcgautha california emphasis added persistence doctrines felony murder allow excessive discretion apportioning criminal culpability decisions today even attempt precisely delineate particular types conduct mind warranting imposition death penalty ante demonstrates still articulated rules ensure capital sentencing decisions conform substantive principles eighth amendment arbitrariness continues infect procedure substance capital sentencing decision impose death penalty remains cruel unusual reason well reasons expressed gregg georgia adhere view death penalty circumstances cruel unusual punishment prohibited eighth fourteenth amendments dissent app quoting paul dean arizona republic explained commentaries model penal code common law felonies punishable death situation made little difference whether actor convicted murder underlying felony sanction primary use rule common law therefore deal homicide occurred furtherance attempted felony failed since attempts punished misdemeanors use rule allowed courts punish actor manner attempt succeeded thus conviction attempted robbery misdemeanor homicide committed attempt murder punishable death ali model penal code commentaries draft notes ante expressed view constitutionality arizona decision attribute petitioners aggravating factor manner individuals carried killings face however decision seem violate core eighth amendment requirement capital punishment based individualized consideration defendant culpability lockett ohio therefore remains open state courts consider whether arizona aggravating factors interpreted applied broadly violate constitution godfrey georgia petitioners presence scene murders participation flagging vehicle robbing guarding family indicate nothing whatsoever subjective appreciation father friend suddenly decide kill family petitioners actions perfectly consistent indeed necessary felony stealing car order continue flight prison nothing record suggests actions inconsistent aim indeed trial recognized disjunction felonies murders found gary tison greenawalt decision murder family senseless unnecessary escape based finding aggravating circumstances part senselessness murders stated essential defendants continuing evasion arrest persons murdered victims easily restrained sufficiently permit defendants travel long distance robberies kidnappings theft reported app arizona first reviewed case appeal stated petitioners degree mens rea little significance case rehearing arizona make finding petitioners anticipated lethal force used breakout subsequent flight regard referred facts concerning breakout escape see ante refer evidence record petitioners mental concerning actual shootings however evidence relevant decision given question chosen address evidence regarding petitioners actual mental regard shooting superfluous addition statement raymond act assist victims shooting statement ricky watched killing chose aid placed position kill rather victims ante takes license facts found arizona say whether petitioners anything help victims following shooting make findings lead one believe something done assist lower merely stated petitioners disassociate father greenawalt shooting ante citation omitted expressions consistent evidence sons mental like lower courts neglected neither son prior felony record app lived home mother visited father believed model prisoner week see brief petitioners citing tr mar hearing plan breakout escape rather father thinking year mentioned idea raymond first time one week breakout discussed sons possibility participate day breakout app sons conditioned participation father promise one get hurt breakout father kept word trial found murders father later committed senseless unnecessary felony stealing car sons participated prior shootings sons retrieving water jug family given circumstances sons testimony surprised killings expect occur appears plausible speculation subjectively appreciated activities likely result taking innocent life ante report psychologist examined sons also suggests may appreciated consequences participation unfortunate youngsters born extremely pathological family exposed one premier sociopaths recent arizona history opinion fact severe influence upon personality structure youngsters believe father gary tison exerted strong consistent destructive subtle pressure upon youngsters believe young men got committed act essentially heads committed late appear true defense based brainwashing mental deficiency mental illness irresistible urge family obsession boys trained think father innocent person victimized state prison youngsters made perfectly clear functioning volition deeper psychological level may less volition result tison conditioning rather amoral attitudes within family home brief petitioners example quotes professor fletcher observation model penal code treats reckless killing equivalent purposeful knowing killing ante emphasis added model penal code advocates replacing rule rule allows conviction murder killer acted intent purpose reckless ness circumstances manifesting extreme indifference value human life see ali model penal code commentaries draft code offers examples shooting crowd automobile shooting person course playing russian roulette second problem examples illustrate wanton nevertheless intentional killings rather unintentional killings element wanton killings lack intent rather premeditation deliberation professor fletcher explains point hile planning calculation represent one form heinous coldblooded murder premeditation feature makes intentional killings wicked wanton killings generally regarded among wicked feature makes killing wanton precisely absence detached reflection deed fitzjames stephen put case man sees boy sitting bridge deep river mere wanton barbarity pushes drowns killing without motive usually wicked killing detached reflection one goals fletcher rethinking criminal law omitted emphasis added show fidelity example decline hold young child morally criminally responsible illegal act hold adult committed act although child committed illegal act caused harmful result child actions presumed reflect mature capacity choice child culpability act accordingly reduced acknowledged different likelihood killing course robbery substantial one share blame killing somehow participated felony nevertheless saw reason depart conclusion death penalty justified deterrent case competent observers concluded basis experience notion death frequently occurs course felony killing essential ingredient death penalty considered justifiable deterrent felony ibid trial found killings case essential ingredient felony app quoted infra thus goal deterrence served case enmund reluctant conclude much survey state decisions jurisdictions approve death penalty circumstances see infra neglects decisions applying law clark louisiana state penitentiary louisiana law jury must find specific intent kill people garcia cal death penalty felony murder may imposed without finding specific intent kill cert denied moreover case cite distinguishable case four five cases cited evidence apparent consensus intent kill prerequisite imposing death penalty specifically find absence act intent kill moreover cases least suggested defendants intended kill attempted kill participated actual killing clines state ark direct evidence one source appellants discussed among necessity murder met resistance evidence victim immediately attacked appellants sustaining blows head face metal chain mortal wound chest cert denied deputy state del deputy solely participant underlying felony instead present involved actual murders cert pending ruffin state evidence abundantly clear sufficient demonstrate ruffin joint participation premeditated murder karol hurst selvage state tex cr app unlike enmund appellant used lethal force effectuate safe escape attempted kill ventura roberts pursued companion jewelry store fifth case people davis defendant received death sentence role successive burglaries codefendant killed resident appears held defendant knew codefendant commit murder mental state significantly different attributed tisons thirteen district columbia abolished death penalty naacp legal defense educational fund death row according ante authorize death penalty circumstances presented least four cataloged also restrict imposition capital punishment actually commit intend commit murder two reject death penalty felony murders see note infra addition least one cited majority state authorizing death penalty absent finding intent explicitly ruled juries must find defendant specific intent kill imposing death sentence carlos superior los angeles cal thus appears district columbia rejected position adopts today restrict imposition capital punishment actually intentionally kill see mo rev stat death penalty reserved intentionally knowingly deliberately cause death cons stat death penalty reserved commit intentional killing stat tit supp murderers correctional officers subject death penalty rev code death penalty reserved commit premeditated killing least one aggravating circumstance two also forbid imposition death penalty general standards announced today although aspects statutes might render applicable defendants facts case see md ann code art supp death penalty may imposed person committed killing possible exception victim child rev stat ann iii death penalty reserved killing law enforcement officer murder hire killing kidnaping although ignores statistics actual executions refer earlier opinion evidence discussed enmund inmates death row sufficient data available participate fatal assault victim present ante see enmund enmund focused breakdown statistics physically present scene information relevant relevant summary enmund tell us many participate also found intended murder occur although statistics average sentences given nontriggermen felony murders presented possible statistics reveal wide range results one case worth noting regard people ganter app ganter codefendant committed armed robbery store ganter killed one store owners evidence trial showed defendant actual murderer shot thomas close range without provocation thomas stood helpless position accomplice although accountable death participation attempt sic armed robbery actual killing ganter sentenced years accomplice sentenced years since enmund decided netherlands australia abolished death penalty offenses cyprus el salvador argentina abolished crimes except committed wartime violation military law amnesty international america death penalty lists executed death row published naacp legal defense fund death row mar review executed since reveals person executed found committed killing intended kill two cases remain doubt whether person executed actually killed victim case however defendant found minimum intended kill green zant case presented jury rather theory evidence supported verdict theory cert denied skillern estelle evidence supports finding skillern agreed plotted advance kill eventual victim cert denied sub nom skillern procunier see amnesty international supra listing death row totals state cases since enmund arizona rejected defendant enmund challenge affirmed death sentence state correll defendant intended kill victims verbally encouraged codefendant proceed killing state defendant actively took part murder intended kill cert denied state hooper defendant killed hire cert denied state bishop defendant planned intended kill assaulted victim abandoned victim mine shaft state poland defendants killed victims aff state villafuerte defendant killed victim cert denied state fisher defendant killed victim cert denied state james defendant killed intended kill cert denied state harding defendant killed victim state libberton defendant killed victim state jordan defendant killed intended kill state smith defendant killed intended kill cert denied state richmond defendant intended kill participated assault led death cert denied state mcdaniel defendant killed victim state gillies defendant took active deliberate part killing although suggests otherwise ante none cases arizona finding intent appear rest finding killing merely foreseeable utilitarian logic deterrence also justify unjust punishments commonly dispensed see fletcher rethinking criminal law judges traffic courts readily tempted philosophy regardless whether particular suspect committed violation punitive fine make drive carefully future sophisticated utilitarian theory deterrence might propose limiting principles punishment must cause misery offense unchecked hart punishment responsibility hart points principles seem account character normal unwillingness punish broken law moral objection strict liability permits punishment act without mens rea ibid hart view civilized moral thought limit utilitarian theories punishment demand punishment applied innocent limiting punishments order maintain scale different offenses reflects albeit roughly distinction felt moral gravity offenses thus make approximation ideal justice treating morally like cases alike morally different ones differently worth noting limits hart identifies given vitality proportionality jurisprudence robinson california even one day prison cruel unusual punishment crime common cold enmund florida enmund punishment must tailored personal responsibility moral guilt punishment might also defended utilitarian ground necessary satisfy community thirst retribution thereby keep peace grounds used justify punishment even innocent people guilty found mob threatens new violence thus clear channeling retributive instincts requires state simply replicate punishment private vengeance exact less simply socialize vigilantism justice marshall stated eighth amendment insulation baser selves cruel unusual language limits avenues vengeance channeled language empty return rack tortures possible given case furman georgia concurring opinion see also gregg georgia marshall dissenting death penalty unnecessary legitimate retributive goals prophets warned israel jealous god visiting iniquity fathers upon children unto third fourth generation hate exodus king james version see horace odes iii bennett trans thy fathers sins thou though guiltless shall expiate shakespeare merchant venice act iii scene line yes truly look sins father laid upon children ibsen ghosts