Neither son had a prior felony record. Raymond recalled being at the Mazda filling the water jug "when we started hearing the shots." Factors such as the defendant's major participation in the events surrounding the killing or the defendant's presence at the scene are relevant insofar as they illuminate the defendant's mental state with regard to the killings. 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. Love Island's Rachel Fenton and Rykard Jenkins split after nearly 18 . Carlos v. Superior Court of Los Angeles Co., 35 Cal.3d 131, 197 Cal.Rptr. Like Enmund, the Tisons neither killed nor attempted or intended to kill anyone. This reckless indifference to the value of human life may be every bit as shocking to the moral sense as an "intent to kill." 142 Ariz., at 462, 690 P.2d, at 763; see also App. Gary Tison and Greenawalt actually carried out the murders. The element that these wanton killings lack is not intent, but rather premeditation and deliberation. I conclude that the proportionality analysis and result in this case cannot be reconciled with the analyses and results of previous cases. When the deaths of the Lyons family and Theresa Tyson were first reported, many in Arizona erupted "in a towering yell" for retribution and justice.1 Yet Gary Tison, the central figure in this tragedy, the man who had his family arrange his and Greenawalt's escape from prison, and the man who chose, with Greenawalt, to murder this family while his sons stood by, died of exposure in the desert before society could arrest him and bring him to trial. 1417, 1421, 8 L.Ed.2d 758 (1962) ("Even one day in prison would be a cruel and unusual punishment for the 'crime' of having a common cold"); Enmund v. Florida, 458 U.S., at 801, 102 S.Ct., at 3378 (Enmund's "punishment must be tailored to his personal responsibility and moral guilt"). As they ran the second roadblock, police fired killing Donny Tison and forcingthe van off the road. Petitioner played an active part in preparing the breakout, including obtaining a getaway car and various weapons. Raymond Tison brought an arsenal of lethal weapons into the Arizona State Prison which he then handed over to two convicted murderers, one of whom he knew had killed a prison guard in the course of a previous escape attempt. 38, &Par; 9-1(a)(3), 9-1(b)(6) (1986). In. "American criminal law has long considered a defendant's intentionand therefore his moral guiltto be critical to the 'degree of [his] criminal culpability.' After a 30 minute gunbattle with police, Randy Greenawalt and the two other Tison boys, Ricky and Raymond, were captured. 408 U.S., at 313, 92 S.Ct., at 2764 (WHITE, J., concurring). But the California Supreme Court only did so in light of perceived federal constitutional limitations stemming from our then recent decision in Edmund. 450 (1892)); cf. Although only one of the petitioners testified that he would have been willing to kill, the court found that both of them could have anticipated the use of lethal force. The Court must also establish that death is a proportionate punishment for individuals in this category. Ante, at 148, see Enmund, 458 U.S., at 795, 102 S.Ct., at 3375. Id., at 608, 98 S.Ct., at 2966 (opinion of Burger, C.J. The court based its finding of aggravating circumstances in part "on the senselessness of the murders," and stated that: "It was not essential to the defendants' continuing evasion of arrest that these persons were murdered. 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. Ricky Wayne TISON and Raymond Curtis Tison, Petitionersv.ARIZONA. . Fitzjames Stephen put the case of a man who 'sees a boy sitting on a bridge over a deep river and, out of mere wanton barbarity, pushes him into it and so drowns him.' What would be relevant, and what the summary in Enmund does not tell us, is how many of the 41 who did not participate were also found not to have intended that the murder occur. Enmund himself may well have so anticipated. We will not attempt to precisely delineate the particular types of conduct and states of mind warranting imposition of the death penalty here. Creation of a new category of culpability is not enough to distinguish this case from Enmund. 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. Enmund was the driver of the "getaway" car in an armed robbery of a dwelling. The Tison family assembled a large arsenal of weapons for this purpose. The deaths would not have occurred but for their assistance. 2 * Gary Tison was sentenced to life imprisonment as the result of a prison escape during the course of which he had killed a guard. This evidence obviously militates against imposing the death penalty on petitioners as powerfully as it did against imposing it on Enmund.14, The Court in Enmund also looked at the imposition of the death penalty for felony murder within Florida, the State that had sentenced Enmund. Evidence that a penalty is imposed only infrequently suggests not only that jurisdictions are reluctant to apply it but also that, when it is applied, its imposition is arbitrary and therefore unconstitutional. The Arizona courts interpreted the plea agreement to require that petitioners testify to the planning stages of the breakout. While the water jug was being filled, Gary Tison and Greenawaltused shotguns to kill the family of four, including a 2-year-old boy. 99-19-101(7) (Supp.1986); Nev.Rev.Stat. We hold that the Arizona Supreme Court applied an erroneous standard in making the findings required by Enmund v. Florida, 458 U.S. 782, 102 S.Ct. . Ganter and a codefendant committed an armed robbery of a store, during which Ganter killed one of the store's owners. On rehearing, the Arizona Supreme Court did make a finding that petitioners could have anticipated that lethal force would be used during the breakout or subsequent flight. Pp. He assisted in escorting the victims to the murder site. imposes a categorical rule: a person who has not in fact killed, attempted to kill, or intended that a killing take place or that lethal force be used may not be sentenced to death." As a result, the court imposed the death sentence.3. 2861, 53 L.Ed.2d 982 (1977), but instead offers two reasons in support of its view. The proceedings below illustrate how, under the felony-murder doctrine, a defendant may be held liable and sentenced to death for a murder that he or she neither committed nor intended to commit. "If they'd executed him the first time, those people might still be alive today", Bob Corbin, Arizona's Attorney General in 1978, said "He deserves it. The Court then explained, and rejected, the felony-murder doctrine as a theory of capital culpability. Maricopa County 1981). Rather, we simply hold that major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.12 The Arizona courts have clearly found that the former exists; we now vacate the judgments below and remand for determination of the latter in further proceedings not inconsistent with this opinion. Moreover, a number of state courts have interpreted Enmund to permit the imposition of the death penalty in such aggravated felony murders. In Furman v. Georgia, supra, 408 U.S. 238, 92 S.Ct. Greenawalt was serving a life sentence for murdering a truck driver in Flagstaff in 1974. Against this background, the Court undertook its own proportionality analysis. 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. Ibid. Instead, he chose to assist the killers in their continuing criminal endeavors, ending in a gun battle with the police in the final showdown. The tower guards assumed they were all departing visitors. So rarely does any State (let alone any Western country other than our own) ever execute a person who neither killed nor intended to kill that "these death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual." to us," ante, at 151, is improper.5 By limiting itself to the facts the lower court found relevant to the foreseeability standard, this Court insulates itself from other evidence in the record directly relevant to the new standard articulated today. The remaining States authorizing capital punishment for felony murders fell into two somewhat overlapping middle categories: three authorized the death penalty when the defendant acted with recklessness or extreme indifference to human life, and nine others, including Arizona, required a finding of some aggravating factor beyond the fact that the killing had occurred during the course of a felony before a capital sentence might be imposed. 76-5-202(1) (Supp.1986); Va.Code 18.2-31 (Supp.1986). 1759, 64 L.Ed.2d 398 (1980). The Tison gang terrorized Arizona in the summer of 1978. 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. First, the court defined intent broadly, adopting a definition that equates "intent to kill" with the foreseeability of harm: "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." The state statutes discussed in Enmund v. Florida are largely unchanged. 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. 13-454(F)(4) (Supp.1973) (repealed 1978). The question this case presents is what punishment Arizona may constitutionally exact from two of Gary Tison's sons for their role in these events. just leave us out here, and you all go home." 21, 701.12 (1981); S.D. App. Greenawalt was serving a life sentence for murdering a truck driver in Flagstaff in 1974. App. 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.

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