TISON v. ARIZONA 1

EXPLORING CASE LAW

Tison v. Arizona, 481 U.S. 137 (1987) In this case, the Tison brothers implemented a plan to break their father out of prison. In the course of the escape, the convicts killed four people. 1. What was the holding of the case? 2. Exactly how were the actions of the Tison brothers different from the defendant in Enmund v. Florida? 3. What is the limit on the culpability of crime partners when a death occurs during a crime? 4. What happened to the Tison brothers?

TISON v. ARIZONA 481 U.S. 137 (1987)

JUSTICE O’CONNOR delivered the opinion of the Arizona courts interpreted the plea agreement to require Court. that petitioners testify to the planning stages of the The question presented is whether the petitioners’ breakout. When they refused to do so, the bargain was participation in the events leading up to and following rescinded and they were tried, convicted, and sentenced the murder of four members of a family makes the to death. sentences of death imposed by the Arizona courts On July 30, 1978, the three Tison brothers entered constitutionally permissible although neither petitioner the Arizona State Prison at Florence carrying a large ice specifically intended to kill the victims and neither chest filled with guns. The Tisons armed Greenawalt inflicted the fatal gunshot wounds. We hold that the and their father, and the group, brandishing their Arizona Supreme Court applied an erroneous standard weapons, locked the prison guards and visitors present in making the findings required by Enmund v. Florida, in a storage closet. The five men fled the prison . . . (1982), and, therefore, vacate the judgments below grounds in the Tisons’ Ford Galaxy automobile. No and remand the case for further proceedings not shots were fired at the prison. inconsistent with this opinion. After leaving the prison, the men abandoned the Gary Tison was sentenced to life imprisonment as the Ford automobile and proceeded on to an isolated result of a prison escape during the course of which he house in a white Lincoln automobile that the brothers had killed a guard. After he had been in prison a number had parked at a hospital near the prison. At the house, of years, Gary Tison’s wife, their three sons Donald, the Lincoln automobile had a flat tire; the only spare Ricky, and Raymond, Gary’s brother Joseph, and tire was pressed into service. After two nights at the other relatives made plans to help Gary Tison escape house, the group drove toward Flagstaff. As the again. . . . The Tison family assembled a large arsenal of group traveled on back roads and secondary highways weapons for this purpose. Plans for escape were discussed through the desert, another tire blew out. The group with Gary Tison, who insisted that his cellmate, Randy decided to flag down a passing motorist and steal a car. Greenawalt, also a convicted murderer, be included in Raymond stood out in front of the Lincoln; the other the prison break. The following facts are largely four armed themselves and lay in wait by the side of evidenced by petitioners’ detailed confessions given as the road. One car passed by without stopping, but a part of a plea bargain according to the terms of which second car, a Mazda occupied by John Lyons, his the State agreed not to seek the death sentence. The wife Donnelda, his 2-year-old son, Christopher, and his 2 CASES RELATING TO CHAPTER 5: OFFENSES AGAINST PERSONS—EXCLUDING SEX OFFENSES

15-year-old niece, Theresa Tyson, pulled over to by the shooting. The Tisons got into the Mazda and render aid. drove away, continuing their flight. Physical evidence As Raymond showed John Lyons the flat tire on the suggested that Theresa Tyson managed to crawl away Lincoln, the other Tisons and Greenawalt emerged. from the bloodbath, severely injured. She died in the The Lyons family was forced into the backseat of the desert after the Tisons left. Lincoln. Raymond and Donald drove the Lincoln Several days later the Tisons and Greenawalt were down a dirt road off the highway and then down a gas apprehended after a shootout at a police roadblock. line service road farther into the desert; Gary Tison, Donald Tison was killed. Gary Tison escaped into the Ricky Tison, and Randy Greenawalt followed in the desert where he subsequently died of exposure. Lyons’ Mazda. The two cars were parked trunk to trunk Raymond and Ricky Tison and Randy Greenawalt and the Lyons family was ordered to stand in front of were captured and tried jointly for the crimes associated the Lincoln’s headlights. The Tisons transferred their with the prison break itself and the shootout at the belongings from the Lincoln into the Mazda. They roadblock; each was convicted and sentenced. discovered guns and money in the Mazda which they The State then individually tried each of the kept, and they put the rest of the Lyons’ possessions in petitioners for capital murder of the four victims as well the Lincoln. as for the associated crimes of armed robbery, kidnap - Gary Tison then told Raymond to drive the Lincoln ping, and car theft. The capital murder charges were still farther into the desert. Raymond did so, and, while based on Arizona felony-murder law providing that a the others guarded the Lyons and Theresa Tyson, killing occurring during the perpetration of robbery Gary fired his shotgun into the radiator, presumably to or kidnapping is capital murder, . . . , and that each completely disable the vehicle. The Lyons and Theresa participant in the kidnapping or robbery is legally Tyson were then escorted to the Lincoln and again responsible for the acts of his accomplices. . . . Each of ordered to stand in its headlights. Ricky Tison reported the petitioners was convicted of the four murders that John Lyons begged, in comments “more or less under these accomplice liability and felony-murder directed at everybody,” “Jesus, don’t kill me.” Gary statutes. Tison said he was “thinking about it.” John Lyons asked Arizona law also provided for a capital sentencing the Tisons and Greenawalt to “[g]ive us some water . proceeding, to be conducted without a jury, to . . just leave us out here, and you all go home.” Gary determine whether the crime was sufficiently aggra - Tison then told his sons to go back to the Mazda and vated to warrant the death sentence. . . . The statute set get some water. Raymond later explained that his out six aggravating and four mitigating factors. . . . father “was like in conflict with himself . . . . What it The judge found three statutory aggravating factors: was, I think it was the baby being there and all this, and he wasn’t sure about what to do.” 1. the Tisons had created a grave risk of death to others The petitioners’ statements diverge to some extent, (not the victims); but it appears that both of them went back towards the 2. the murders had been committed for pecuniary Mazda, along with Donald, while Randy Greenawalt gain; and Gary Tison stayed at the Lincoln guarding the 3. the murders were especially heinous. victims. Raymond recalled being at the Mazda filling the water jug “when we started hearing the shots.” The judge found no statutory mitigating factor. Ricky said that the brothers gave the water jug to Gary Importantly, the judge specifically found that the crime Tison who then, with Randy Greenawalt went behind was not mitigated by the fact that each of the petitioners’ the Lincoln, where they spoke briefly, then raised the “participation was relatively minor.” . . . Rather, he shotguns and started firing. In any event, petitioners found that the “participation of each [petitioner] in the agree they saw Greenawalt and their father brutally crimes giving rise to the application of the felony murder their four captives with repeated blasts from murder rule in this case was very substantial.” . . . The their shotguns. Neither made an effort to help the trial judge also specifically found, that each “could victims, though both later stated they were surprised reasonably have foreseen that his conduct . . . would TISON v. ARIZONA 3 cause or create a grave risk of . . . death.” . . . He did “From these facts we conclude that petitioner find, however, three non-statutory mitigating factors: intended to kill . . . . ”

1. the petitioners’ youth—Ricky was 20 and Ray - In Ricky Tison’s case the Arizona Supreme Court mond was 19; relied on a similar recitation of facts to find intent. . . . 2. neither had prior felony records; In Enmund v. Florida, this Court reversed the death 3. each had been convicted of the murders under the sentence of a defendant convicted under Florida’s felony-murder rule. felony-murder rule. Enmund was the driver of the “getaway” car in an armed robbery of a dwelling. The Nevertheless, the judge sentenced both petitioners occupants of the house, an elderly couple, resisted and to death. Enmund’s accomplices killed them. The Florida On direct appeal, the Arizona Supreme Court Supreme Court found the inference that Enmund was affirmed. . . . the person in the car by the side of the road waiting to Petitioners then collaterally attacked their death help his accomplices escape sufficient to support his sentences in state postconviction proceedings alleg- sentence of death: ing that Enmund v. Florida, . . . (1982), which had . . . [some discussion omitted] been decided in the interim, required reversal. A This Court, citing the weight of legislative and divided Arizona Supreme Court, interpreting Enmund community opinion, found a broad societal consensus, to require a finding of “intent to kill,” declared in with which it agreed, that the death penalty was Raymond Tison’s case “the dictate of Enmund is satis - disproportional to the crime of robbery-felony murder fied,” writing: “Intend [sic] to kill includes the situation “in these circumstances.” . . . in which the defendant intended, contemplated, or . . . Furthermore, the Court found that Enmund’s anticipated that lethal force would or might be used degree of participation in the murders was so tangential or that life would or might be taken in accomplishing that it could not be said to justify a sentence of death. the underlying felony. . . . It found that neither the deterrent nor the retribu- tive purposes of the death penalty were advanced [citing the Arizona Supreme Court]”In the present case by imposing the death penalty upon Enmund. The the evidence does not show that petitioner killed or Enmund Court was unconvinced “that the threat that attempted to kill. The evidence does demonstrate the death penalty will be imposed for murder will beyond a reasonable doubt, however, that petitioner measurably deter one who does not kill and has no intended to kill. Petitioner played an active part in intention or purpose that life will be taken.” . . . preparing the breakout, including obtaining a That difference was also related to the second getaway car and various weapons. At the breakout purpose of capital punishment, retribution. . . . Thus, scene itself, petitioner played a crucial role by, in Enmund’s case, “the focus [had to] be on his culpa- among other things, holding a gun on prison bility, not on that of those who committed the robbery guards. Petitioner knew that Gary Tison’s murder and shot the victims, for we insist on ‘individualized conviction arose out of the killing of a guard during consideration as a constitutional require ment in an earlier prison escape attempt. Thus petitioner imposing the death sentence.’” . . . could anticipate the use of lethal force during this . . . [some discussion omitted] attempt to flee confinement; in fact, he later said Petitioners argue strenuously that they did not that during the escape he would have been willing “intend to kill” as that concept has been generally personally to kill in a ‘very close life or death understood in the common law. We accept this as true. situation,’ and that he recognized that after the Traditionally, “one intends certain consequences when escape there was a possibility of killings.” he desires that his acts cause those consequences or knows that those consequences are substantially certain . . . [some discussion omitted] to result from his acts.” . . . As petitioners point out, 4 CASES RELATING TO CHAPTER 5: OFFENSES AGAINST PERSONS—EXCLUDING SEX OFFENSES there is no evidence that either Ricky or Raymond the offense, and, therefore, the more severely it ought Tison took any act which he desired to, or was to be punished. The ancient concept of malice afore- substantially certain would, cause death. thought was an early attempt to focus on mental state . . . [some discussion omitted] in order to distinguish those who deserved death from This definition of intent is broader than that those who through “Benefit of . . . Clergy” would be described by the Enmund Court. Participants in violent spared. . . . In Enmund v. Florida, the Court recognized felonies like armed robberies can frequently “antici - again the importance of mental state, explicitly pat[e] that lethal force . . . might be used . . . in accom - permitting the death penalty in at least those cases where plishing the underlying felony.” Enmund himself may the felony murderer intended to kill and forbidding it well have so anticipated. Indeed, the possibility of in the case of a minor actor not shown to have had any bloodshed is inherent in the commission of any violent culpable mental state. felony and this possibility is generally foreseeable and A narrow focus on the question of whether or not foreseen; it is one principal reason that felons arm a given defendant “intended to kill,” however, is a themselves. The Arizona Supreme Court’s attempted highly unsatisfactory means of definitively distinguishing reformulation of intent to kill amounts to little more the most culpable and dangerous of murderers. Many than a restatement of the felony-murder rule itself. who intend to, and do, kill are not criminally liable Petitioners do not fall within the “intent to kill” at all—those who act in self defense or with other category of felony murderers for which Enmund justification or excuse. Other intentional homicides, explicitly finds the death penalty permissible under the though criminal, are often felt undeserving of the Eighth Amendment. death penalty—those that are the result of provocation. On the other hand, it is equally clear that petitioners On the other hand, some nonintentional murderers also fall outside the category of felony murderers for may be among the most dangerous and inhumane whom Enmund explicitly held the death penalty of all—the person who tortures another not caring disproportional: their degree of participation in the whether the victim lives or dies, or the robber who crimes was major rather than minor, and the record shoots someone in the course of the robbery, utterly would support a finding of the culpable mental state of indifferent to the fact that the desire to rob may have reckless indifference to human life. the unintended consequence of killing the victim as well . . . [some discussion omitted] as taking the victim’s property. This reckless indiffer- These facts not only indicate that the Tison brothers’ ence to the value of human life may be every bit as participation in the crime was anything but minor; they shocking to the moral sense as an “intent to kill.” also would clearly support a finding that they both Indeed it is for this very reason that the common law subjectively appreciated that their acts were likely to and modern criminal codes alike have classified behav - result in the taking of innocent life. The issue raised by ior such as occurred in this case along with intentional this case is whether the Eighth Amendment prohibits murders. . . . For example, the Model Penal Code the death penalty in the intermediate case of the treats reckless killing, ‘manifesting extreme indiffer- defendant whose participation is major and whose ence to the value of human life,’ as equivalent to mental state is one of reckless indifference to the value purposeful and knowing killing”). Enmund held that of human life. Enmund does not specifically address this when “intent to kill” results in its logical though not point. We now take up the task of determining whether inevitable consequence—the taking of human life—the the Eighth Amendment proportionality requirement Eighth Amendment permits the State to exact the death bars the death penalty under these circumstances. penalty after a careful weighing of the aggravating and . . . [some discussion omitted] mitigating circumstances. Similarly, we hold that the A critical facet of the individualized determination reckless disregard for human life implicit in knowingly of culpability required in capital cases is the mental state engaging in criminal activities known to carry a grave with which the defendant commits the crime. Deeply risk of death represents a highly culpable mental ingrained in our legal tradition is the idea that the more state, a mental state that may be taken into account in purposeful is the criminal conduct, the more serious is making a capital sentencing judgment when that TISON v. ARIZONA 5 conduct causes its natural, though also not inevitable, possibility of a capital sentence absent an intent to kill, lethal result. and we do not find this minority position constitu - The petitioners’ own personal involvement in the tionally required. We will not attempt to precisely crimes was not minor, but rather, as specifically found delineate the particular types of conduct and states of by the trial court, “substantial.” Far from merely sitting mind warranting imposition of the death penalty here. in a car away from the actual scene of the murders acting Rather, we simply hold that major participation in the as the getaway driver to a robbery, each petitioner was felony committed, combined with reckless indifference actively involved in every element of the kidnapping- to human life, is sufficient to satisfy the Enmund culpa- robbery and was physically present during the entire bility requirement. The Arizona courts have clearly sequence of criminal activity culminating in the murder found that the former exists; we now vacate the of the Lyons family and the subsequent flight. The judgments below and remand for determination of the Tisons’ high level of participation in these crimes latter in further proceedings not inconsistent with this further implicates them in the resulting deaths. Accord - opinion. ingly, they fall well within the overlapping second It is so ordered. intermediate position which focuses on the defendant’s degree of participation in the felony. [Concurring and dissenting opinions omitted. Footnotes and Only a small minority of those jurisdictions imposing citations omitted.] capital punishment for felony murder have rejected the