TISON v. ARIZONA: JUSTICE O'CONNOR CREATES A NEW STANDARD OF CULPABILITY FOR CAPITAL CRIMES

TISON v. ARIZONA: JUSTICE O'CONNOR CREATES A NEW STANDARD OF CULPABILITY FOR CAPITAL CRIMES INTRODUCTION One experiences tremendous feelings of moral outrage when first confronted with knowledge of the senseless murders of a family of four persons, including a two-year old child, in the middle of the Arizona desert. 1 Retribution can naturally be expected as society's instinctive reaction to such crimes. Though retribution is one of the accepted social purposes of punishment, 2 it must not be permitted to dominate the equally important social purpose of deterrence of crimes. 3 In order to serve both purposes effectively, the administration of criminal law requires that the desire for retribution be channeled to promote the stability of a society which has chosen to govern itself by law rather than by passion. 4 Enlightened reason, detachment, and independence from competing pressures of the day are hallmarks of the judiciary which make it uniquely qualified to ensure that retributive instincts manifest themselves in appropriate criminal sanctions. 5 These qualities have found their expression in the development of standards regarding proportionality between crime and punishment and requirements of individualized consideration for capital punishment. 6 The need for judicial detachment was heightened when Ricky and Raymond Tison requested the United States Supreme Court to overturn their death sentences. 7 A higher level of judicial detachment was necessary because the Arizona felony-murder statute under which the Tisons were convicted was a strict liability statute which required no proof of a culpable mental state with regard to the killings. 8 Unfortunately for the Tisons, the detachment exhibited in past cases was not the order of the day; the United States Supreme 1. See infra notes 10-19 and accompanying text. 2. See Furman v. Georgia, 408 U.S. 238, 394-95 (1972) (Burger, C.J., dissenting). 3. See Gregg v. Georgia, 428 U.S. 153, 183 (1976). 4. Furman, 408 U.S. at 308. 5. Gregg, 428 U.S. at 174-75 (Frankfurter, J., concurring) (citing Dennis v. United States, 341 U.S. 494, 525 (1951)). 6. See infra notes 92-140 and accompanying text. 7. Tison v. Arizona, 107 S. Ct. 1676, 1680-82 (1987). 8. See infra notes 60-65 and accompanying text. The Arizona murder statute provides in pertinent part, "Homicide as defined in paragraph 2 of subsection A of this section, requires no specific mental state other than what is required for the commission of any of the enumerated felonies." ARIz. REv. STAT. ANN. 13-1105(B) (Supp. 1986). Proof of the mens rea for the commission of the underlying felony is all that is

CREIGHTON LAW REVIEW [Vol. 21 Court yielded to the passion for retribution by providing the State with a new standard for capital liability which merely pays lip service to the constitutional prerequisites of proportionality and individualized consideration in imposing the death sentence. 9 FACTS AND HOLDING In the summer of 1978, Ricky and Raymond Tison made a "routine" visit to the Arizona State Prison to see their father, who was serving a life sentence for killing a prison guard during a prior escape attempt. 10 The Tisons carried with them an arsenal of guns, arming their father and his cellmate. 11 With the assistance of other family members, the men overpowered the prison guards and fled the prison without injuring anyone. 12 Several days after the escape, the automobile in which the group was traveling was disabled by a flat tire. 13 Raymond Tison stood next to the disabled automobile and flagged down a passing motorist. 14 The other members of the group waited out of sight. 15 A family of four stopped to assist Raymond, at which time the other members appeared. 16 The group then forced the family into the disabled vehicle, drove them into the desert and held them at gunpoint.' 7 The two prison escapees murdered them with repeated shots from their shotguns while Ricky and Raymond Tison watched without objecting or interfering. 18 The group continued their flight in the victims' automobile until it ended in a shootout at a police roadblock several days after the murders. 19 Ricky and Raymond Tison were individually tried and convicted in the Arizona Superior Court, Yuma County, on four counts of first degree murder, three counts of kidnapping, two counts of armed robbery and one count of motor vehicle theft. 20 The trial judge's jury instructions provided two alternative bases on which a conviction of required; there is no requirement that the felon even foresee that the act constituting the felony poses a risk of serious bodily harm or death. See id. 9. See infra notes 146-54 and accompanying text. 10. Tison, 107 S. Ct. at 1678; see Brief for Petitioner at 3, Tison v. Arisona, 107 S. Ct. 1676 (1987). 11. Tison, 107 S. Ct. at 1678. 12. Id. 13. Id. 14. Id. at 1678-79. 15. Id. at 1679. 16. Id. The occupants of the car included John Lyons and his wife, his two-yearold son, and his fifteen-year-old niece. Id. 17. Id. 18. Id. 19. Id. 20. State v. Ricky Wayne Tison, 129 Ariz. 526, -, 633 P.2d 335, 335, 339 (1981),

1987] DEATH PENALTY first degree murder could be returned: (1) a conspiracy to commit premeditated murder during which each of the conspirators is liable for the killing by co-conspirators; or (2) felony-murder, in which an accomplice in the felony is liable for a killing by a co-felon. 21 In both cases, the jury returned first degree murder convictions, without specifying the theory on which the verdict was based. 22 However, the trial judge recognized that the record would support a conviction only under the felony-murder instruction. 23 On direct appeal, the Arizona Supreme Court affirmed the first degree murder convictions because the "jury could have concluded from the evidence that the murders... were committed either in avoiding lawful arrest, effecting an escape from legal custody, or in the perpetration of robbery or kidnapping; and any of these conclusions would produce liability under the Arizona felony-murder statute." 24 Therefore, the Tisons were considered principals in the homicides by application of Arizona's accomplice liability statute. 25 Numerous other assignments of error were resolved against the defendants. 26 Subsequently, the defendants petitioned the Arizona state courts for post-conviction relief. 27 They argued that imposing the death cert. denied, 459 U.S. 882 (1982); State v. Raymond Curtis Tison, 129 Ariz. 546, -, 633 P.2d 355, 355, 357 (1981), cert. denied, 459 U.S. 882 (1982). 21. Brief for Respondent at 9, Tison v. Arizona, 107 S. Ct. 1676 (1987). Although the defendants were convicted by separate juries, the same judge presided over both trials. Id. at 10. 22. Id. at 9. 23. State v. Ricky Wayne Tison, 142 Ariz. 446, -, 690 P.2d 747, 752 (1984) vacated and remanded, 107 S. Ct. 1676 (1987) (Feldman, J., concurring and dissenting). Justice Feldman stated "It is clear, however, that the trial judge was aware that the record supported only a conviction under the felony murder rule, for he found as a mitigating circumstance that Ricky had been 'convicted of four murders under the felony murder instructions.'" Id. (citation omitted). 24. Ricky Wayne Tison, 129 Ariz. at -, 633 P.2d at 347, 355. Under Arizona law, the felony-murder rule provides that "'[a] murder... which is committed in avoiding or preventing lawful arrest or effecting an escape from legal custody, or in perpetration of or attempt to perpetrate... robbery... [or] kidnapping... is murder of the first degree.'" Id. (quoting ARIZ. REV. STAT. ANN. 13-452 (1956) (repealed 1978) (recodified as ARIZ. REV. STAT. ANN. 13-1105 (A)(2), (B) (Supp. 1986)). 25. Ricky Wayne Tison, 129 Ariz. at -, 633 P.2d at 347. Arizona law provides that the criminal liability of accomplices extends to "'[a]ll persons concerned in the commission of a crime... whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission... are principals in any crime so committed.'" Id. at 346-47 (quoting ARIZ. REV. STAT. ANN. 13-139 (1956) (repealed 1978) (recodified as ARIZ. REV.STAT. ANN. 13-301, 13-303(A)(3), (B)(2) (1978 & Supp. 1986))). 26. Ricky Wayne Tison, 129 Ariz. at -, 633 P.2d at 340-54; Raymond Curtis Tison, 129 Ariz. at -, 633 P.2d at 358-59. 27. State v. Ricky Wayne Tison, 142 Ariz. 446, -, 690 P.2d 747, 748; State v. Raymond Curtis Tison, 142 Ariz. 454, -, 690 P.2d 755, 756-57 (1984), vacated and remanded, 107 S. Ct. 1676 (1987).

CREIGHTON LAW REVIEW [Vol. 21 penalty on a defendant who neither killed, attempted to kill, nor intended to kill was unconstitutional. 28 The defendants relied on the United States Supreme Court's decision in Enmund v. florida, 2 9 which had been filed after the Arizona Supreme Court affirmed the defendants' convictions and death sentences on direct appeal. 3 0 A divided Arizona Supreme Court denied relief, stating that "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."' 's Based on this interpretation of intent to kill, the Arizona Supreme Court concluded that the Enmund standard had been satisfied because the evidence supported a conclusion that the defendants intended to kill. 32 The United States Supreme Court granted certiorari to consider the Arizona Supreme Court's application of the Enmund standard. 33 In an opinion which vacated and remanded the state court judgments delivered by Justice O'Connor, the Court first dealt with the defendants' argument that "they did not 'intend to kill' as that concept has been generally understood in the common law." '34 The Tison Court rejected the Arizona Supreme Court's articulation of "intent to kill" because it was overly broad. 35 The Tison Court concluded that the Arizona Supreme Court's broad definition of "intent to kill" was merely a "restatement of the felony-murder rule," and that the defendants did not "fall within the 'intent to kill' category of felony- 28. Ricky Wayne Tison, 142 Ariz. at -, 690 P.2d at 748; Raymond Curtis Tison, 142 Ariz. at -, 690 P.2d at 757. 29. 458 U.S. 782 (1982). The defendant in Enmund was convicted as an accomplice to felony-murder and sentenced to death. The United States Supreme Court reversed the judgment because there was no evidence that the defendant killed, attempted to kill or intended to kill. Therefore, the Court reasoned, imposing the death penalty on a defendant whose culpability was limited to participation in an armed robbery was excessive punishment in violation of the eighth and fourteenth amendments. Id. at 787, 798-801. 30. Tison, 107 S. Ct. at 1680. In addition to the argument that Enmund barred application of the death penalty, the defendants' petitions for post-conviction relief incorporated by reference all issues raised on direct appeal, as well as additional grounds that assistance of counsel was ineffective, that Arizona's statutory scheme is unconstitutional because it excludes jury participation in sentencing decisions, that appellate review was inadequate because the Arizona Supreme Court failed to conduct a proper proportionality review and that several statements by defendants were admitted into evidence which were obtained in violation of the Miranda rule. Ricky Wayne Tison, 142 Ariz. at -, 690 P.2d at 749-751. Cf. Miranda v. Arizona, 384 U.S. 436 (1966). 31. Tison, 107 S. Ct. at 1680-81 (Ricky Wayne Tison, 142 Ariz. at -, 690 P.2d at 748; Raymond Curtis Tison, 142 Ariz. at -, 690 P.2d at 757.) 32. Ricky Wayne Tison, 142 Ariz. at -, 690 P.2d at 748-49; Raymond Curtis Tison, 142 Ariz. at -, 690 P.2d at 757-58. 33. Tison v. Arizona, 106 S. Ct. 1182, 1182 (1986). 34. Tison, 107 S. Ct. at 1678, 1684. 35. Id. at 1684.

1987] DEATH PENALTY murderers for which Enmund explicitly [found] the death penalty permissible under the Eighth Amendment. '36 The Tison Court interpreted Enmund as dealing with two distinct categories of felony-murderers. 37 At one extreme was the felony-murderer who "actually killed, attempted to kill or intended to kill" and for whom the death penalty was proportional; 3 8 and at the other extreme was the minor participant in the felony who had no culpable mental state and for whom the death penalty was disproportional. 3 9 Although the defendants did not fall within the category of "intent to kill" felony murderers, it was "clear that [the defendants] also [fell] outside the category of felony murderers for whom Enmund explicitly held the death penalty disproportional. '40 In reaching this conclusion, the -Court relied on the inference drawn by the Arizona Supreme Court that the defendants' participation in the crimes was substantial. 4 ' The Court also independently observed that "the record would support a finding of the culpable mental state of reckless indifference to human life." '42 The Tison Court next addressed the question of whether the eighth amendment proportionality requirement would permit the death penalty for the category of felony murderers whose participation in the crime was major and whose mental state was one of reckless indifference. 43 To answer this question, the Tison Court considered state legislative judgments relevant. 44 Based on a review of state statutes, the Tison Court concluded that a majority of states authorized the death penalty under circumstances where the felony- 36. Id. The Court reasoned: Participants in violent felonies like armed robberies can frequently 'anticipat[e] that lethal force.., might be used... in accomplishing the underlying felony.' Enmund himself may well have so anticipated. Indeed, the possibility of bloodshed is inherent in the commission of any violent felony and this possibility is generally foreseeable and foreseen; it is one principal reason that felons arm themselves. Id. 37. Id. 38. Id. 39. Id. 40. Id. The Court's view of the Tisons' participation and mental state sharply contrasted with its view of Enmund's participation and mental state. The Tison Court noted that "Enmund's own participation in the felony murder was so attenuated and... [that] there was no proof that Enmund had any culpable mental state." In contrast, the Court concluded that "the Tison brothers [sic] participation in the crime was anything but minor, [and the facts]... would clearly support a finding that they both subjectively appreciated that their acts were likely to result in the taking of innocent life." Id. at 1683-85. 41. Id. at 1684. 42. Id. 43. Id. at 1685, 1687. It is impossible to tell from the opinion what the underlying felony was. 44. Id. at 1685.

CREIGHTON LAW REVIEW [Vol. 21 murderer was a major participant in the underlying felony and manifested a reckless indifference to the value of human life. 4 5 After finding support for the death penalty from its review of state statutes, the Court invoked its own judgment on the proportionality of the death penalty for the middle category of felony murderers at issue in Tison. 46 The Court recognized that a defendant's mental state must be taken into account in each case, but warned that a narrow focus on intent to kill does not effectively "[distinguish] the most culpable and dangerous of murderers. '47 The Court explained that killing which is the product of a reckless indifference to the value of human life "may be every bit as shocking to the moral sense as an 'intent to kill.' "48 Therefore, the Court held that "reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state" which, when combined with major participation in the felony, is sufficient to satisfy the dictate of Enmund. 49 The Court accepted the Arizona Supreme Court's inference that the defendants' participation was substantial, vacated the judgments, and remanded for determination of the existence of the culpable mental state of reckless indifference. 5 0 In a dissenting opinion delivered by Justice Brennan, four Justices agreed with that portion of the majority's opinion which rejected the Arizona Supreme Court's attempt to satisfy the requirement of Enmund by interpreting "intent to kill" as a species of foreseeable harm. 51 According to Justice Brennan, this rejection was all that was necessary to decide the case, and the majority thus should have vacated the sentences and reversed the judgments. 52 The dissenters refused to join in that part of the majority opinion which announced a "new substantive standard for capital liability" based upon reckless indifference to human life and major participa- 45. Id. at 1685-87. 46. Id. at 1686-87. 47. Id. at 1687-88. The Court compared intentional murders for which an actor is not criminally liable (e.g., self-defense) or for which the death penalty would be inappropriate (e.g., extreme and sudden provocation) with unintentional murders for which the murderer "may be among the most dangerous and inhumane of all - the person who tortures another not caring whether the victim lives or dies, or the robber who shoots someone in the course of the robbery, utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim's property." Id. at 1688. 48. Id. 49. Id. 50. Id. 51. Id. at 1691 (Brennan, J., dissenting). Justice Marshall joined Justice Brennan's dissent, while Justice Blackmun and Justice Stevens joined in part. Id. at 1688 (Brennan, J., dissenting). 52. Id. at 1691 (Brennan, J., dissenting).

1987] DEATH PENALTY tion in the felony. 53 In the eyes of the dissenting Justices, the majority erred in concluding that this new standard applied to the Tisons because the majority had limited itself to the facts which the Arizona Supreme Court considered relevant to its view of intent to kill.m In addition, the dissenters harshly criticized the majority for its failure to conduct a constitutionally required proportionality review to determine whether death is a proportionate punishment for felony murderers who manifest reckless indifference to human life. 5 5 The dissenters regarded this failure as a fundamental flaw which was not countervailed by the majority's justification for abandoning intent to kill as a basis for identifying the most heinous forms of killing. 56 The Court had recognized that the death penalty might be appropriate for an unintentional murderer "who tortures" or "who shoots" a victim "in circumstances manifesting an extreme indifference to the value of human life." '57 Nonetheless, the dissent dismissed the majority's justification for abandoning its focus on "intent to kill" in the case of individuals who were convicted as accomplices but who did not actually kill. 5 8 Justice Brennan argued that "although some of the 'most culpable and dangerous of murderers' may be those who killed without specifically intending to kill, it is considerably more difficult to apply that rubric convincingly to those who not only did not intend to kill, but who also have not killed. '59 BACKGROUND FELONY MURDER The felony-murder doctrine is a holdover from early English common law when all felonies were punishable by death. 60 The doctrine establishes liability for murder when an unintended death oc- 53. Id. 54. Id. at 1691-92 (Brennan, J., dissenting). 55. Id. at 1693 (Brennan, J., dissenting). 56. Id. at 1693-94 (Brennan, J., dissenting). 57. Id. at 1694 (Brennan, J., dissenting). 58. Id. 59. Id. 60. MODEL PENAL CODE 210.2, Comment 6, at 31 n.74 (1980). Comments to section 210.2 of the Model Penal Code note: At common law all felonies were punishable by death. In a felony-murder situation, it made little difference whether the actor was convicted of the murder or of the underlying felony because the sanction was the same. 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. Since attempts were punished as misdemeanors... the use of the felony-murder rule allowed the courts to punish the actor in the same manner as if his attempt had succeeded.

CREIGHTON LAW REVIEW [Vol. 21 curs during the commission or attemped commission of a felony. 6 1 The rule is used to establish a legal fiction regarding the defendant's mental state as a substitute for a specific finding of the mens rea of murder. 62 In applying the felony-murder rule, the courts have sometimes mistakenly confused felonious intent with the "intent to kill" mental state necessary to convict a defendant of murder, and in doing so have eliminated any distinction between felony-murder and "intentto-kill" murder. 6 3 When the felony-murder doctrine was viewed in this manner, "[no] separate proof of any culpability with regard to the death," apart from that associated with the underlying felony was required to impose liability for murder. 6 4 Such a transient use of culpable mental state was a product of a period in legal history when the notion of mens rea was regarded "as something approaching a general criminal disposition rather than as a specific attitude of the defendant towards each element of a specific offense. '65 The harshness of the felony-murder doctrine became apparant as legislatures expanded the list of statutory felonies beyond the relatively few felonies recognized at early common law, which typically involved violence and were punishable by death in any event. 6 6 The legislatures and courts responded to the injustice resulting from the broad application of the doctrine to these newly recognized felonies by imposing restrictions on the felony-murder rule. 6 7 The modern trend has been to limit application of the felony-murder rule by ex- 61. W. LAFAVE & A. ScoT, CRIMINAL LAW 7.5, at 622 (2d ed. 1986). 62. Morris, The Felon's Responsibility for the Lethal Acts of Others, 105 U. PA. L. REV. 50, 59 (1956). 63. People v. Olsen, 80 Cal. 111, 22 P. 125 (1889). The Olsen court stated: In such homicides the law superadds the intent to kill to the original felonious intent, and estops the criminal from denying the further intent thus imputed. The thing done, having proceeded from a corrupt mind, is to be viewed the same, whether the corruption is of one particular form or another. Id. at 127, 22 P. at 127. See also Simpson v. Commonwealth, 293 Ky. 831, -, 170 S.W.2d 869, 869 (1943) (holding that when a person is killed during the commission of a felony, the intent to commit the felony provides the elements of malice and intent to kill necessary to murder, even though the killing is contrary to the original intent of the felon). See generally W. CLARK & W. MARSHALL, A TREATISE ON THE LAW OF CRIMES 10.07 (M. Wingersky 6th ed. 1958) (explaining that at common law, since nearly all felonies were punishable by death, the malice or intent to commit the felony was impliedly transferred by law to supply malice aforethought for the killing). 64. MODEL PENAL CODE 210.2 Comment 6, at 31 (1980). The American Law Institute ("ALI") states that "[t]he homicide, as distinct from the underlying felony, was thus offense of strict liability." Id. 65. Id. 66. Id. 210.2 commentary at 31-32; W. LAFAVE & A. ScoTT, CRIMINAL LAw 7.5, at 622 (1986). 67. See MODEL PENAL CODE 210.2 commentary at 32-33 (1980). The ALI noted, "American legislatures had responded to these demands at the time the Model Code was drafted primarily by dividing felony-homicides into two or more grades or by low-

1987] DEATH PENALTY pressly enumerating the underlying felonies in the criminal statute itself. 6 8 Judicial limitations took many forms where no explicit enumeration of underlying felonies was present. 6 9 The limitations that have evolved typically restrict the operation of the rule to those felonies of a dangerous nature involving a risk to human life. 70 Although the scope of the felony-murder rule has been limited, the rule remains a form of strict liability for homicide in that it establishes criminal liability for murder absent any proof of the culpable state of mind required for murder. 7 1 Despite the limitations imposed on the felony-murder rule by the courts and legislatures, the rule has been harshly criticized as an artificial concept. 72 The chief criticism of the rule, as limited to specific felonies, is that although the limitations serve to decrease the instances of unwarranted convictions, the rule remains simply another way of convicting a defendant of murder for an unintended killing ering the degree of murder for felony homicide. Only Ohio had abandoned the rule completely." Id. 210.2 commentary at 32. 68. Ludwig, Foreseeable Death in Felony Murder, 18 U. PITT. L. REv.51, 53 (1956). The felony murder doctrine is limited by a vast majority of American jurisdictions to "the underlying felonies of arson, burglary, rape and robbery; [o]f these jurisdictions, ten add mayhem, three larceny, three sodomy, two kidnapping, and one escape." Id. 69. See W. LAFAvE & A. SCOTT, CRIMINAL LAW 7.5, at 622-23 (1986). 70. See, e.g., People v. Pavlic, 227 Mich. 562, 566-67, 199 N.W. 373, 374 (1924) (holding defendant not guilty of felony-murder becuase the felony of selling liquor is not in itself dangerous to life). The view that the underlying felony must represent a danger to human life has been stated in two ways. One view of the requirement of dangerousness reasons that the felon created a foreseeable danger to human life even though the felony in the abstract is not considered dangerous. W. LAFAVE & A. SCOTT,CRIMINAL LAW 7.5 at 624 (2d ed. 1986). See also Olsen, 80 Cal. 122-26, 22 P. 126 (affirming conviction of felonymurder, reasoning that "[t]he common law measures an act which is malum in se substantially by the result produced, though not contemplated, holding the doer of the act guilty of the thing done in the same manner as if it were specially intended"). An alternative view examines the felony in the abstract without reference to the special circumstances of the case and determines whether the felony is inherently dangerous. W. LAFAVE & A.Scorr, CRIMINAL LAW 7.5 at 624 (2d ed. 1986). See, also People v. Phillips, 64 Cal. 2d 574, -, 51 Cal. Rptr. 225, 233, 414 P.2d 353, 361 (1966) (holding that the defendant was not guilty of felony-murder because felony of grand theft was not an "inherently dangerous" felony). 71. MODEL PENAL CODE 210.2 commentary at 36 (1980). 72. See, e.g., 0. HOLMES, THE COMMON LAW 57-58 (1909). Justice Holmes observed: So, if a man does an act with intent to commit a felony, and thereby accidentally kills another; for instance, if he fires at chickens, intending to steal them, and accidentally kills the owner, whom he does not see... The fact that the shooting is felonious does not make it any more likely to kill people. If the object of the rule is to prevent such accidents, it should make accidental killing with firearms murder, not accidental killing in the effort to steal; while, if its object is to prevent stealing, it would do better to hang one thief in every thousand by lot.

CREIGHTON LAW REVIEW [Vol. 21 which otherwise constitutes negligent homicide. 73 Therefore, the criticism continues, to convict a defendant for murder by the use of an artificial rule when a specific finding of fact would support only a conviction for negligent homicide offends the principles of the criminal law because "murder and negligent homicide are not interchangeable; they carry vastly different sanctions. '74 Though limited in its scope since its original application at English common law, the felony-murder rule has "repeatedly been recognized and applied in this country, and is to be regarded as still in force, except where it has been expressly abrogated by statute. '7 5 The future of the rule may be somewhat less certain, for it has been abolished altogether in England by the English Homicide Act of 1957,76 and the American Law Institute has proposed to eliminate the rule as a separate basis for murder and to create a rebuttable presumption of the requisite mental state for intent to kill or depraved heart homicide, 77 where the killing occurs in the course of specified felonies. 78 ACCOMPLICE LIABILITY Frequently in felony-murder cases, the defendant will not be the person who actually killed the victim. 7 9 The liability of the defendant for the acts of his co-felons is determined by rules concerning accomplice liability. 8 0 To be liable as an accomplice for crimes committed by another person, there must be a concurrence of required acts and mental state which produce the criminal result. 8 1 The courts and legislatures have identified varying types of con- 73. MODEL PENAL CODE 210.2 commentary at 37 (1980). 74. Id. 210.2 commentary at 37. 75. W. CLARK & W. MARSHALL, supra note 63, at 588. 76. W. LAFAVE & A. Scorr, CRIMINAL LAW 7.5, at 640 (1986). 77. MODEL PENAL CODE 210.2 Comment 4, at 22 (1980). Comment 4 deals with depraved heart murder: Insofar as Subsection (1)(b) includes within the murder category cases of homicide caused by extreme recklessness, though without purpose to kill, it reflects both the common law and much pre-existing statutory treatment usually cast in terms of conduct evidencing a 'depraved heart regardless of human life' or some similar words. Examples usually given include shooting into a crowd or into an occupied house or automobile, though they are not, of course, exhaustive. Id. 78. MODEL PENAL CODE 210.2 commentary at 29-30 (1980). 79. W. LAFAVE & A. ScoTT, CRIMINAL LAW 7.5, at 625 (1986). 80. Id. Although some state legislatures have expressly extended application of the felony-murder rule to accomplices, courts in other states have produced the same result by combining felony-murder and accomplice liability statutes. Id. at 625 n.24. 81. Id. 6.7, at 576.

1987] DEATH PENALTY duct by accomplices which can be a basis for accomplice liability. 8 2 However, it is possible to become an accomplice without providing actual physical assistance. 8 3 The facts of some cases make it difficult to determine whether the defendant aided, abetted or encouraged the criminal conduct of the principal actor when the defendant is present at the scene of the crime but does not provide actual physical assistance. 8 4 Generally, the defendant's purpose must be to further the criminal conduct of another. 8 5 A defendant who unintentionally and unknowlingly assists or furthers the commission of a crime does not have the mens rea necessary for accomplice liability. 8 6 However, a somewhat anomalous result is produced when accomplice liability is derived from application of the felony-murder rule. 8 7 In cases where the felony-murder rule is applied, it is unnecessary for the defendant to intend or even know that the consequence of his assistance in the underlying crime may be a killing; all that is required is that he intended to assist in committing the underlying crime. 8 8 The mental state required for accomplice liability is sufficient to 82. Id. Examples of the most common terms are " 'aid,' 'abet,' 'advise,' 'assist,' 'cause,' 'command,' 'counsel,' 'encourage,' 'hire,' 'induce,' and 'procure.'" Id. 83. Id. Modern "accomplice liability statutes use two approaches: The predominant approach allows solicitation of the crime to suffice. The other approach provides that conspiracy to commit the crime is enough. Id. at 576 n.8. 84. Id. at 577. Compare People v. Lopez, 72 Ill. App. 3d 713, 391 N.E.2d 105, 108 (1979) (holding that defendants were not guilty because the mere presence at the scene of the crime was insufficient to uphold convictions); with State v. Parker, 282 Minn. 343, -, 164 N.W.2d 633, 641 (1969) (stating that defendant's presence without objection may be considered in connection with other circumstances in concluding the defendant assented to commission of the crime and therefore was aiding and abetting in its commission). See also, Pace v. State, 248 Ind. 146, -, 224 N.E.2d 312, 314 (1967) (holding that defendant was not guilty of felony-murder where he was present but did nothing to indicate his approval of the crime because he was not under any duty to oppose it); Jones v. Commonwealth, 208 Va. 370, -, 157 S.E.2d 907, 910 (1967) (mere presence at the scene of the crime plus flight afterwards was not sufficient to prove that defendant was aiding and abetting in commission of the offenses). But see, People v. Thomas, 104 Ill. App. 2d 56, -, 243 N.E.2d 611, 614-16 (1968) (presence at the scene of the crime coupled with flight may be taken into consideration with other circumstances in concluding that defendant was aider and abettor). 85. W. LAFAVE & A. ScOrr, CRIMINAL LAW 6.7, at 579-80 (1986). 86. Id. at 581. 87. Id. 88. Id. See People v. Cabaltero, 31 Cal. App. 2d 52, -, 87 P.2d 364, 368-69 (1939) (rejecting a defense to felony-murder conviction that the co-conspirator may have intentionally killed the victim and that such a killing was not part of the original plan, in furtherance of or a natural and probable consequence thereof or that those who did not actually kill did not intend that life should be taken). See also People v. Michalow, 229 N.Y. 325, -, 128 N.E. 228, 230 (1920) (holding that defendant was guilty of murder because the design to kill the victim is not an element of the crime); State v. Carothers, 84 Wash. 2d 256, -, 525 P.2d 731, 734-35 (1974) (holding that when a person participates in commission of a felony, it does not matter whether he actually commits the act constituting the offense or aids or abets in its commission and it is not necessary to determine the exact nature of the defendant's participation).

CREIGHTON LAW REVIEW [Vol. 21 impose liability for all acts by the principal which are the "natural and probable consequences" of the conduct which the accomplice intended to assist. 8 9 General application of the "natural and probable consequences" rule may be inconsistent with principles of criminal law because it may "permit liability to be predicated upon negligence even when the crime involved requires a different state of mind." 90 For this reason, the rule has usually been limited in its application, notably its application in felony-murder cases where liability for murder is imposed absent intent to kill. 91 CRUEL AND UNUSUAL PUNISHMENT The felony-murder rule, sometimes overlaid with principles of accomplice liability, may be the basis for a defendant's conviction of first degree murder, 92 which is a capital crime in many states. 93 Punishment by death, because of its severity, is qualitatively different than other forms of punishment and necessarily implicates constitutional limitations proscribing cruel and unusual punishment. 94 The exact meaning of the phrase "cruel and unusual" has proven elusive. 95 The Supreme Court has noted that "[t]he exact scope of the constitutional phrase 'cruel and unusual' [has] not been detailed," but "[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man. '96 In an early attempt to explain the limitation on permissible punishments, the Court focused on the proportionality between the punishment imposed and the crime committed. 97 In Weems v. United States, 98 the defendant was convicted for making false entries in a 89. W. LAFAVE & A. ScOm, CRIMINAL LAW, 6.7 at 590. See also 1 WHARTON'S CRIMINAL LAW 35, at 181 (C. Torcia 14th ed. 1978) (noting that "[w]here the crime committed is different from the crime counseled, there is no liability on the part of the aider and abettor, unless the crime committed was a natural and probable consequence of the crime counseled"); State v. Hurst, 153 Minn. 525, 535, 193 N.W. 680, 684 (1922) (stating that "[i]f one procures or conspires with another to commit a crime, he is guilty of everything done by his confederates, which follows incidentally in the execution of the common design, as one of its probable and natural consequences, even though it was not intended as part of the original plan"). 90. W. LAFAVE & A. ScOm, CRIMINAL LAW 6.7 at 590. 91. Id. at 591. 92. See supra notes 79-91 and accompanying text. 93. Tison, 107 S. Ct. at 1685-86. 94. Woodson v. North Carolina, 428 U.S. 280, 305 (1976). The Bill of Rights states, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. CONST. amend. VIII. 95. See inkfra note 96 and accompanying text. 96. Trop v. Dulles, 356 U.S. 86, 99-100 (1958). 97. Weems v. United States, 217 U.S. 349, 366-67 (1910). 98. 217 U.S. 349 (1910).

1987] DEATH PENALTY public and official document on two separate occasions.9 He was sentenced to fifteen years at hard and painful labor in chains, followed by a lifetime disqualification from exercising political rights and holding office, a loss of retirement pay and perpetual surveillance by the authorities. 10 0 The Court reversed the judgment without hesitation due to the cruel and, unusual nature of the punishment. 0 1 The Court stated that "it is a precept of justice that punishment for crime should be graduated and proportioned to offense."i 02 The Supreme Court had an opportunity to consider whether a death sentence was "cruel and unusual" when it affirmed the judgment of the Supreme Court of the Territory of Utah in Wilkerson v. Utah. 10 3 The foundation for the Court's decision was an assumption that punishment by death was not outside the limitations of the eighth amendment. 10 4 The Court focused its analysis instead on the constitutionality of the particular method (shooting, hanging or beheading) to be employed in carrying out the punishment. 0 5 The constitutionality of the death penalty as a form of punishment was not finally resolved until Gregg v. Georgia. 106 In Gregg, the defendant had been convicted of two counts each of armed robbery and murder after a bifurcated trial.' 0 7 In the second stage of the trial, the jury found statutorily mandated aggravating factors and returned death sentences.' 0 8 Addressing the constitutionality of the death sentences, the Court stated that "when a life has been taken deliberately by the offender, we cannot say that the punishment is invariably disproportionate to the crime. It is an extreme sanction, suitable to the most extreme of crimes."' 1 9 Based on this reasoning the Court held that "the punishment of death does not invariably violate the Constitution."" x0 99. Id. at 357-58. 100. Id. at 358, 363-65. 101. Id. at 382. 102. Id. at 367. See also O'Neil v. Vermont, 144 U.S. 323, 334-35 (1892) In dissent Justice Field stated: "The inhibition is directed, not only against punishments of the character mentioned, but against all punishments which by their excessive length or severity are greatly disproportioned to the offenses charged." Id. at 339-40 (Field, J., dissenting). 103. 99 U.S. 130, 137 (1879). 104. See id. at 134-35. 105. Id. 106. 428 U.S. 153, 168 (1976). 107. Id. at 158-60. 108. Id. at 161. The jury found, as aggravating circumstances, that the murder was committed during the commission of a capital felony and "for the purpose of receiving money and the automobile." Id. 109. Id. at 187. 110. Id. at 169.

372 CREIGHTON LAW REVIEW [Vol. 21 The Court explored the meaning of the constitutionally mandated limits of proportionality in Trop v. Dulles."' The defendant in Trop had been denationalized after a court-martial conviction and dishonorable discharge for wartime desertion. 1 1 2 In deciding that the punishment was barred by the eighth amendment, the Court relied heavily on the public attitude of the international community that imposing the condition of statelessness on an individual is an inappropriate criminal punishment. 113 This reliance on the public attitude was founded upon the Court's awareness that "the words of the [eighth] [a]mendment are not precise, and.., their scope is not static. The [a]mendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." ' " 4 However, the inquiry into the public attitude, evidenced by legislative enactments and sentencing decisions by juries, is not the sole source for determinations of the proportionality of particular punishments. 15 The Court exercised its own judgment in Coker v. Georgia, 116 concluding that the death penalty was an excessive punishment for the rape of an adult woman. 1 17 The Court compared the severity of the punishment of death with the harm inflicted on the victim and distinguished the magnitude of the harm inflicted by the the rapist by stating that "[l]ife is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair." 118 However, more is required in the determination of proportionality than simply a comparison of the severity of the punishment and the resulting harm to the victim. 119 The Court required individualized consideration of the defendant's blameworthiness in Woodson v. North Carolina 120 when it invalidated a mandatory death penalty statute which failed to allow relevant information about the defendant's character and record to be considered before imposing a death sentence.' 2 1 The Court observed that individualized consideration was the product of "enlightened policy rather than a constitutional imperative.' '122 Nonetheless, the severity of the punishment in capi- 111. 356 U.S. 86, 99 (1958). 112. Id. at 88. 113. Id. at 102-03. 114. Id. at 100-01. 115. See infra notes 116-18 and accompanying text. See Gregg, 428 U.S. at 173-76. 116. 433 U.S. 584 (1977). 117. Id. at 597. 118. Id. at 597-98. 119. See inftra notes 120-31 and accompanying text. 120. 428 U.S. 280 (1976). 121. Id. at 303. 122. Id. at 304.

1987] DEATH PENALTY tal cases led the Court to conclude that the fundamental respect for the dignity of man made individual consideration of the character and propensity of the defendant an indispensable constitutional predicate in imposing the death sentence. 123 The flaw of the North Carolina statute in Woodson was that it permitted no consideration of information about the defendant. 124 The plurality opinion in Woodson left open the question of what information about the defendant must be considered before a death sentence is imposed. 125 This question was resolved in Lockett v. Ohio. 126 The defendant in Lockett assisted in planning the robbery of a pawnshop; and, though the defendant waited in the getaway car during the robbery attempt, she was found guilty of aggravated murder and sentenced to death. 127 Unlike the mandatory death penalty statute in Woodson, the Ohio statute in Lockett permitted limited mitigating factors to be considered before imposing sentence. 128 Nonetheless, the Court invalidated the statute because it left open the possibility that some factor might be omitted. 129 A statute such as Ohio's, which might prevent consideration of relevant factors calling for a lesser penalty, posed an unacceptable risk when the issue before the Court is whether or not to take a human life. 130 The Court concluded that the qualitative difference between the death penalty and noncapital punishments, especially the inability to reverse an executed death sentence, "underscore[d] the need for individualized consideration as a constitutional requirement in imposing 131 the death sentence.' The Court's insistence on individualized consideration before imposing a death sentence was determinative in Enmund v. FKorida. 132 In Enmund the defendant was found guilty of two counts of first-degree murder and sentenced to death.' 3 3 Though there was no direct evidence that the defendant was physically present at the murder scene, the Florida Supreme Court affirmed the convictions and sentences based on evidence from which the jury could infer that Enmund had been "'constructively present aiding and abetting the com- 123. Id. 124. Id. at 303-05. 125. Lockett v. Ohio, 438 U.S. 586, 604 (1978). 126. 438 U.S. 586, 604 (1978). 127. Id. at 590, 593. 128. Id. at 606-07. 129. Id. at 604. 130. Id. at 605. 131. Id. 132. 458 U.S. 782, 798 (1982). 133. Id. at 785.

CREIGHTON LAW REVIEW [Vol. 21 mission of the crime of robbery.' "134 The Florida Supreme Court held that the combination of accomplice liability rules and the felony-murder rule supported the convictions of first-degree murder, and the presence of two aggravating circumstances combined with an absence of mitigating circumstances justified the death sentences. 35 The United States Supreme Court granted Enmund's petition for certiorari to consider the question of whether the death penalty is cruel and unusual punishment where there is no showing of the mental state of intent to take life. 13 6 The Court focused on the role that accomplice liability rules played in supporting Enmund's conviction for murder, rather than upon the question of whether the death penalty was a proportional penalty for murder. 1 37 The Court noted that "the need for individualized consideration in imposing the death sentence"' 38 was unsatisfied because the Florida courts had not focused on Enmund's own culpability, but rather on the culpability of the robbers who had actually killed and whose culpability was attributed to Enmund by virtue of accomplice liability rules. 1 39 According to the Court, the failure to focus on Enmund's conduct and culpability was fatal to the imposition of the death sentence under the eighth amendment's prohibition against cruel and unusual punishment. 1 40 Therefore, the Court reversed the judgment.' 4 ' The limitations on permissible punishments are not self-evident from the face of the eighth amendment. 42 In ascertaining the limits of constitutional punishment, the Court has recognized that the meaning of the amendment is ultimately defined by reference to societal standards of decency and respect for human dignity. 1 43 Because the death penalty is considered to be qualitatively different from other forms of punishment, the Court has insisted on individualized consideration of the defendant's blameworthiness as a means of assuring the proportionality between the crime committed and the punishment imposed. 4 4 The need for individualized consideration is greatest when the criminal conviction is obtained by the use of a legal fiction regarding the defendant's mental state which precludes 134. Id. at 786 (quoting Enmund v. State, 399 So. 2d 1362, 1370 (Fla. 1981)). 135. Id. at 786-87. 136. Id. at 787. 137. Id. at 798. 138. Lockett, 438 U.S. at 605. 139. Enmund, 458 U.S. at 798. 140. Id. 141. Id. at 801. 142. See supra notes 95-96 and accompanying text. 143. See supra notes 111-14 and accompanying text. 144. See supra notes 119-41 and accompanying text.

1987] DEATH PENALTY consideration of the defendant's own conduct or culpability. 145 ANALYSIS At first blush, one who reads the majority opinion in Tison may be perplexed by the apparent change of heart by its author, Justice O'Connor, in the five years since whe wrote the dissenting opinion in Enmund. However, further analysis reveals that the apparent change of heart was superficial. The only significant difference between Enmund and Tison is that the evidence of Enmund's participation in the crimes was an "inference that he was the person in the car by the side of the road near the scene of the crimes,"' 1 46 while the Court in Tison was presented with substantial evidence of the Tison brothers' participation in the crimes as a result of the Tisons' detailed confessions. 14 7 In reality, the participation of the Tison brothers in the underlying felonies was not qualitatively different that that of Earl Enmund. 148 The Tisons were convicted of felony-murder by application of accomplice liability rules. 149 Similarly, Earl Enmund was convicted of first-degree murder by combination of accomplice liability and felony-murder rules. 150 However, benefitted by a complete record of the degree of participation in the underlying felonies in Tison.' 5 ' Justice O'Connor seized the opportunity to carve out a new category of criminal culpability: a new category of felony-murderers on whom the death penalty may be imposed "based on other levels of intent, such as... the intent to commit an armed robbery coupled with the knowledge that armed robberies involve substantial risk of death or serious injury to other persons."' 51 2 This new category dif- 145. See supra notes 136-41 and accompanying text. 146. Enmund, 458 U.S. at 786 (quoting State v. Enmund, 399 So. 2d at 1370). 147. See supra note 12-20 and accompanying text. The defendants had entered into plea bargains in which the State of Arizona agreed not to seek the death sentence in return for the defendants' detailed confessions. This plea agreement was later rescinded by the state but the detailed confessions were entered into evidence. Tison, 107 S. Ct. at 1678. 148. The Florida courts convicted the defendant in Enmund, who was "in the car by the side of the road... waiting to help the robbers escape [thus making him] a constructive aider and abettor and hence a principal in first-degree murder," by applying felony-murder and accomplice liability rules. Enmund, 458 U.S. at 786, 788. In addition, "Enmund planned the armed robbery, transported two persons to the site of the crime, sent them into the house to commit the robbery knowing that they were armed, waited for them and drove the get-away car... Enmund helped them flee, dispose of the weapons and attempt to evade apprehension. The facts in the [Tison] case establish no more participation in the murders than was proved in Enmund." Ricky Wayne Tison, 690 P.2d at 753 (Feldman, J., dissenting). 149. See supra notes 24-25 and accompanying text. 150. See supra notes 133-35 and accompanying text. 151. See supra note 147. 152. Enmund, 458 U.S. at 825 (O'Connor, J., dissenting).