Grounds for Death Penalty Extended : Unwitting Murder Accomplices May Be Executed, Supreme Court Decides

Expanding the grounds for capital punishment, the Supreme Court ruled Tuesday that a person who participates in a crime leading to murder can be put to death, even if he did not intend that the victim be killed.

On a 5-4 vote, the high court dramatically undercut a 1982 ruling that prohibited death sentences for unwitting accomplices in a murder.

This time, with a conservative majority in charge, the justices concluded that a major participant in a crime who stands by “utterly indifferent” as an innocent person is murdered commits a crime that “may be among the most dangerous and inhumane of all,” Justice Sandra Day O’Connor wrote for the court.

Without officially reversing the earlier decision, “we simply hold that major participation in the felony committed, combined with reckless indifference to human life, is sufficient” grounds for sentencing a person to death, O’Connor said.

Distresses Penalty Foes

Death penalty foes said they were distressed by the ruling, saying it appeared to strip away a key defense in many capital punishment cases.

“This not only takes away a shield used by the defense, but gives a sword to the proponents of the death penalty,” said Harvard University Prof. Alan Dershowitz, who defended the two brothers tried in the Arizona case in question. “This decision seems to encourage states to enact a more aggressive penalty.”

Meanwhile, California prosecutors said that they could take advantage of the decision to seek a reversal of the death penalty policy of the state Supreme Court. Under former Chief Justice Rose Elizabeth Bird, the state court routinely threw out death sentences in cases where a criminal’s “intent” to murder was not clearly established.

“This issue is in real flux in California, and this should help us,” said California Deputy Atty. Gen. Herbert Wilkinson, who is in charge of state death penalty cases.

Defines Major Participants

The 1982 federal ruling had permitted the death penalty only for defendants in a crime who killed, attempted to kill and intended that a killing take place. The new ruling applies it to all major participants in a crime that leads to murder.

It leaves intact a prohibition on use of capital punishment for “minor” participants. This would include, for example, accomplices who were “merely sitting in a car away from the actual scene of the murders” and had little other involvement, O’Connor wrote.

The ruling will have no immediate impact on 11 of the 37 states with death penalty laws on their books because those states already have banned capital punishment for criminals who did not take a life or intend to take a life.

The case before the Supreme Court involved a 1978 escape plot to free a convicted murderer from an Arizona prison.

In her opinion, O’Connor, who at the time of the crime was an Arizona appeals court judge, described how Ricky Tison, 19, and his brother Raymond, 18, “assembled a large arsenal of weapons” and smuggled them in to the prison where they freed their father, Gary.

Two days after the escape, with their car broken down in the desert, the three men flagged down an auto carrying John Lyons, his wife, a 2-year-old son and a 15-year-old niece.

Murders Four in Family

Gary Tison ordered the family from the car and, ignoring their pleas for mercy, killed all four with shotgun blasts.

Police captured the two sons, but the father escaped into the desert and died of exposure. At their trials, Raymond and Ricky said that they were surprised and shocked by the “blood bath” in the desert, but admitted to having done nothing to stop it.

The sons were tried and sentenced to death. On appeal, the Arizona Supreme Court upheld the sentence, concluding that even though the two “did not specifically intend” that the family be murdered, they could have “anticipated” the use of lethal force in the crime.

In its ruling Tuesday on the sons’ appeal, the high court sent the case back to the Arizona Supreme Court for review under a new standard. Rather than weighing whether they could have anticipated the use of lethal force, it said, the court should consider whether the two demonstrated a “reckless indifference to human life” and were major participants in the crime.

Arizona Official Confident

Arizona Atty. Gen. Bob Corbin said Tuesday he was “very confident” that the Tisons’ death sentences would be upheld after further study.

The key vote in Tuesday’s ruling came from Justice Byron R. White. In 1982, he wrote the court opinion overturning a death penalty for the driver of a getaway car in a robbery-murder because the driver did not “intend that a killing take place.” This time, White switched sides to form a pro-death penalty majority. He joined O’Connor, Chief Justice William H. Rehnquist and Justices Lewis F. Powell Jr. and Antonin Scalia in the case (Tison vs. Arizona, 84-6075 ).

In dissent, Justice William J. Brennan Jr. complained that the practice of upholding death sentences for persons who did not commit a killing “is a living fossil from a legal era in which all felonies were punishable by death.”

‘Tragically Anachronistic’

He said that the decision condones punishing sons and daughters “for the sins of the father,” adding: “Punishment that conforms more closely to such retributive instincts . . . is tragically anachronistic in a society governed by our Constitution.”

In other actions, the court:

--Ruled on a 5-3 vote that government prosecutors may use grand jury evidence gathered in a criminal investigation in a related civil case (U.S. vs. Doe, 85-1613).

--Ruled on a 5-4 vote that a defendant’s confession that implicates an accomplice may not be admitted at their joint trial. Justice Antonin Scalia wrote the opinion for a liberal majority in the case of Cruz vs. New York, 85-5939. But in a related case (Richardson vs. Marsh, 85-1433), a 6-3 majority said that a defendant’s confession can be used at a joint trial if all reference to the accomplice is excluded.