source: Caselaw Access Project

author: Me. Justice Powell Mr. Justice Blackmun, Mr. Justice Stevens, Mr. Justice Brennan,

license: Public Domain

text:
    NATIONAL LABOR RELATIONS BOARD v. RETAIL STORE EMPLOYEES UNION, LOCAL 1001, RETAIL CLERKS INTERNATIONAL ASSN., AFL-CIO, et al.
    No. 79-672.
    Argued April 15, 1980
    Decided June 20, 1980

      Powell, J., announced the Court’s judgment and delivered an opinion of the Court with respect to Parts I and II, in which Burger, C. J., and Stewart, Blackmun, Rehnquist, and Stevens, JJ., joined, and an opinion with respect to Part III, in which Burger, C. J., and Stewart and Rehnquist, JJ., joined. Blackmun, J., post, p. 616, and Stevens, J., post, p. 618, filed opinions concurring in part and in the result. Brennan, J., filed a dissenting opinion, in which White and Marshall, JJ., joined, post, p. 619.

      Norton J. Come argued the cause for petitioner. With him on the briefs were Solicitor General McCree and Linda Sher. Bruce Michael Cross filed a brief for the Safeco Title Insurance Co., respondent under this Court’s Rule 21 (4), in support of petitioner.

      Laurence Gold argued the cause for respondent Retail Store Employees Union. With him on the brief were James H. Webster, J. Albert Woll, and George Kaufmann

        Andrew M. Kramer, Adin C. Goldberg, and Stephen A. Bokat filed a brief for the Chamber of Commerce of the United States of America as amicus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed by Jack Greenberg and Eric Schnapper for the NAACP Legal Defense and Educational Fund, Inc.; and by David C. Vladeck and Alan B. Morrison for Public Citizen et al.

   Me. Justice Powell

delivered the opinion of the Court.

The question is whether § 8 (b) (4) (ii) (B) of the National Labor Relations Act, 29 U. S. C. § 158 (b) (4) (ii) (B), forbids secondary picketing against a struck product when such picketing predictably encourages consumers to boycott a neutral party’s business.

I

Safeco Title Insurance Co. underwrites real estate title insurance in the State of Washington. It maintains close business relationships with five local title companies. The companies search land titles, perform escrow services, and sell title insurance. Over 90% of their gross incomes derives from the sale of Safeco insurance. Safeco has substahtial stockholdings in each title company, and at least one Safeco officer serves on each company’s board of directors. Safeco, however, has no control over the companies’ daily operations. It does not direct their personnel policies, and it never exchanges employees with them.

Local 1001 of the Retail Store Employees Union became the certified bargaining representative for certain Safeco employees in 1974. When contract negotiations between Safeco and the Union reached an impasse, the employees went on strike. The Union did not confine picketing to Safeco’s office in Seattle. The Union also picketed each of the five local title companies. The pickets carried signs declaring that Safeco had no contract with the Union, and they distributed handbills asking consumers to support the strike by canceling their Safeco policies.

Safeco and one of the title companies filed complaints with the National Labor Relations Board. They charged that the Union had engaged in an unfair labor practice by picketing in order to promote a secondary boycott against the title companies. The Board agreed. 226 N. L. R. B. 754 (1976). It found the title companies to be neutral in the dispute between Safeco and the Union. Id., at 756. The Board then concluded that the Union’s picketing violated § 8 (b) (4) (ii) (B) of the National Labor Relations Act. The Union had directed its appeal against Safeco insurance policies. But since the sale of those policies accounted for substantially all of the title companies’ business, the Board found that the Union’s action was “reasonably calculated to induce customers not to patronize the neutral parties at all.” 226 N. L. R. B., at 757. The Board therefore rejected the Union’s reliance upon NLRB v. Fruit Packers, 377 U. S. 58 (1964) (Tree Fruits), which held that §8 (b)(4)(ii)(B) allows secondary picketing against a struck product. It ordered the Union to cease picketing and to take limited corrective action.

The United States Court of Appeals for the District of Columbia Circuit set aside the Board’s order. 194 U. S. App. D. C. 400, 600 F. 2d 280 (1979) (en banc). The court agreed that the title companies were neutral parties entitled to the benefit of § 8 (b) (4) (ii) (B). 201 U. S. App. D. C. 147, 151, 627 F. 2d 1133, 1137 (1979). It held, however, that Tree Fruits leaves neutrals susceptible to whatever consequences may flow from secondary picketing against the consumption of products produced by an employer involved in a labor dispute. Even when product picketing predictably encourages consumers to boycott a neutral altogether, the court concluded, § 8 (b) (4) (ii) (B) provides no protection. 201 U. S. App. D. C., at 159-160, 627 F. 2d, at 1145-1146.

We granted a writ of certiorari to consider whether the Court of Appeals correctly understood § 8 (b) (4) (ii) (B) as interpreted in Tree Fruits. 444 U. S. 1011 (1980). Having concluded that the Court of Appeals misapplied the statute, we now reverse and remand for enforcement of the Board’s order.

II

Section 8 (b)(4) (ii) (B) of the National Labor Relations Act makes it “an unfair labor practice for a labor organization ... to threaten, coerce, or restrain” a person not party to a labor dispute “where ... an object thereof is . . . forcing or requiring [him] to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer ... or to cease doing business with any other person. . . ,”

In Tree Fruits, the Court held that § 8 (b) (4) (ii) (B) does not prohibit all peaceful picketing at secondary sites. There, a union striking certain Washington fruit packers picketed large supermarkets in order to persuade consumers not to buy Washington apples. Concerned that a broad ban against such picketing might run afoul of the First Amendment, the Court found the statute directed to an “ ‘isolated evil.’ ” The evil was use of secondary picketing “to persuade the customers of the secondary employer to cease trading with him in order to force him to cease dealing with, or to put pressure upon, the primary employer.” 377 U. S., at 63. Congress intended to protect secondary parties from pressures that might embroil them in the labor disputes of others, but not to shield them from business losses caused by a campaign that successfully persuades consumers “to boycott the primary employer’s goods.” Ibid. Thus, the Court drew a distinction between picketing “to shut off all trade with the secondary employer unless he aids the union in its dispute with the primary employer” and picketing that “only persuades his customers not to buy the struck product.” Id., at 70. The picketing in that case, which “merely follow [ed] the struck product,” did not “ ‘threaten, coerce, or restrain’ ” the secondary party within the meaning of § 8 (b)(4) (ii)(B). 377 U. S., at 72.

Although Tree Fruits suggested that secondary picketing against a struck product and secondary picketing against a neutral party were “poles apart,” id., at 70, the courts soon discovered that product picketing could have the same effect as an illegal secondary boycott. In Hoffman ex rel. NLRB v. Cement Masons Local 337, 468 F. 2d 1187 (CA9 1972), cert. denied, 411 U. S. 986 (1973), for example, a union embroiled with a general contractor picketed the housing subdivision that he had constructed for a real estate developer. Pickets sought to persuade prospective purchasers not to buy the contractor’s houses. The picketing was held illegal because purchasers “could reasonably expect that they were being asked not to transact any business whatsoever” with the neutral developer. 468 F. 2d, at 1192. “[W]hen a union’s interest in picketing a primary employer at a ‘one product’ site [directly conflicts] with the need to protect . . . neutral employers from the labor disputes of others,” Congress has determined that the neutrals’ interests should prevail. Id., at 1191.

Cement Masons highlights the critical difference between the picketing in this case and the picketing at issue in Tree Fruits. The product picketed in Tree Fruits was but one item among the many that made up the retailer’s trade. 377 U. S., at 60. If the appeal against such a product succeeds, the Court observed, it simply induces the neutral retailer to reduce his orders for the product or “to drop the item as a poor seller.” Id., at 73. The decline in sales attributable to consumer rejection of the struck product puts pressure upon the primary employer, and the marginal injury to the neutral retailer is purely incidental to the product boycott. The neutral therefore has little reason to become involved in the labor dispute. In this case, on the other hand, the title companies sell only the primary employer’s product and perform the services associated with it. Secondary picketing against consumption of the primary product leaves responsive consumers no realistic option other than to boycott the title companies altogether. If the appeal succeeds, each company “stops buying the struck product, not because of a falling demand, but in response to pressure designed to inflict injury on [its] business generally.” Thus, “the union does more than merely follow the struck product; it creates a separate dispute with the secondary employer.” Id., at 72. Such an expansion of labor discord was one of the evils that Congress intended § 8 (b) (4) (ii) (B) to prevent. 377 U. S., at 63-64.

As long as secondary picketing only discourages consumption of a struck product, incidental injury to the neutral is a natural consequence of an effective primary boycott. See id., at 72-73. But the Union’s secondary appeal against the central product sold by the title companies in this case is “reasonably calculated to induce customers not to patronize the neutral parties at all.” 226 N. L. It. B., at 757. The resulting injury to their businesses is distinctly different from the injury that the Court considered in Tree Fruits Product picketing that reasonably can be expected to threaten neutral parties with ruin or substantial loss simply does not square with the language or the purpose of § 8 (b)(4)(ii)(B). Since successful secondary picketing would put the title companies to a choice between their survival and the severance of their ties with Safeco, the picketing plainly violates the statutory ban on the coercion of neutrals with the object of “forcing or requiring [them] to cease . . . dealing in the [primary] produc[t] ... or to cease doing business with” the primary employer. § 8 (b) (4) (ii) (B); see Tree Fruits, 377 U. S., at 68.

Ill

The Court of Appeals suggested that application of § 8 (b) (4)(ii)(B) to the picketing in this case might violate the First Amendment. 201 U. S. App. D. C., at 161, 627 F. 2d, at 1147. We think not. Although the Court recognized in Tree Fruits that the Constitution might not permit “a broad ban against peaceful picketing,” the Court left no doubt that Congress may prohibit secondary picketing calculated “to persuade the customers of the secondary employer to cease trading with him in order to force him to cease dealing with, or to put pressure upon, the primary employer.” 377 U. S., at 63. Such picketing spreads labor discord by coercing a neutral party to join the fray. In Electrical Workers v. NLRB, 341 U. S. 694, 705 (1951), this Court expressly held that a prohibition on “picketing in furtherance of [such] unlawful objectives” did not offend the First Amendment. See American Radio Assn. v. Mobile S.S. Assn., 419 U. S. 215, 229-231 (1974); Teamsters v. Vogt, Inc., 354 U. S. 284 (1957). We perceive no reason to depart from that well-established understanding. As applied to picketing that predictably encourages consumers to boycott a secondary business, § 8 (b) (4) (ii) (B) imposes no impermissible restrictions upon constitutionally protected speech.

Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded with directions to enforce the National Labor Relations Board’s order.

So ordered.

Mr. Justice Blackmun,

concurring in part and concurring in the result.

I join Parts I and II of the Court’s opinion, but not Part III. The plurality’s cursory discussion of what for me are difficult First Amendment issues presented by this case fails to take account of the effect of this Court’s decision in Police Department of Chicago v. Mosley, 408 U. S. 92 (1972), on the question whether the National Labor Relations Act’s content-based ban on peaceful picketing of secondary employers is constitutional. The failure to take Mosley into account is particularly ironic given that the Court today reaffirms and extends the principles of that case in Carey v. Brown, ante, p. 455.

In NLRB v. Fruit Packers, 377 U. S. 58, 76 (1964), Mr. Justice Black wrote a concurring opinion in which he concluded that § 8 (b) (4) (ii) (B) of the National Labor Relations Act “abridges freedom of speech and press in violation of the First Amendment.” He said:

“In short, we have neither a case in which picketing is banned because the picketers are asking others to do something unlawful nor a case in which all picketing is, for reasons of public order, banned. Instead, we have a case in which picketing, otherwise lawful, is banned only when the picketers express particular views. The result is an abridgement of the freedom of these picketers to tell a part of the public their side of a labor controversy, a subject the free discussion of which is protected by the First Amendment.” 377 U. S., at 79. (Emphasis in original.)

These views, central to Mr. Justice Black’s vision of the First Amendment, were, one would have supposed until today, “accepted” by the Court in Mosley. See 408 U. S., at 98.

I have never been fully comfortable with Mosley’s, equating all content selectivity in affording access to picketers with censorship. See Mosley, 408 U. S., at 102 (concurring statement). For this reason, I join today in Me. Justice Rehnquist’s dissenting opinion in Carey v. Brown. I concur in the result in this case, however, only because I am reluctant to hold unconstitutional Congress’ striking of the delicate balance between union freedom of expression and the ability of neutral employers, employees, and consumers to remain free from coerced participation in industrial strife. My vote should not be read as foreclosing an opposite conclusion where another statutory ban on peaceful picketing, unsupported by equally substantial governmental interests, is at issue.

Mr. Justice Stevens,

concurring in part and concurring in the result.

For the reasons stated by Mr. Justice Harlan and Mr. Justice Black in their separate opinions in NLRB v. Fruit Packers, 377 U. S. 58, 76, 80 (Tree Fruits), I am persuaded that Congress intended to prohibit this secondary picketing, and for the reasons stated by Mr. Justice Powell, I agree that this case is not governed by Tree Fruits. I therefore join Parts I and II of the Court’s opinion.

The constitutional issue, however, is not quite as easy as the plurality would make it seem because, as Mr. Justice Black pointed out in Tree Fruits, “we have a case in which picketing, otherwise lawful, is banned only when the picketers express particular views.” Id., at 79. In other words, this is another situation in which regulation of the means of expression is predicated squarely on its content. See Consolidated Edison Co. v. Public Service Comm’n, ante, at 546 (Stevens, J., concurring in judgment). I agree with the plurality that this content-based restriction is permissible but not simply because it is in furtherance of objectives deemed unlawful by Congress. Ante, at 616. That a statute proscribes the otherwise lawful expression of views in a particular manner and at a particular location cannot in itself totally justify the restriction. Otherwise the First Amendment would place no limit on Congress’ power. In my judgment, it is our responsibility to determine whether the method or manner of expression, considered in context, justifies the particular restriction.

I have little difficulty in concluding that the restriction at issue in this case is constitutional. Like so many other kinds of expression, picketing is a mixture of conduct and communication. In the labor context, it is the conduct element rather than the particular idea being expressed that often provides the most persuasive deterrent to third persons about to enter a business establishment. In his concurring opinion in Bakery Drivers v. Wohl, 315 U. S. 769, 776-777, Mr. Justice Douglas stated:

“Picketing by an organized group is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated. Hence those aspects of picketing make it the subject of restrictive regulation.”

Indeed, no doubt the principal reason why handbills containing the same message are so much less effective than labor picketing is that the former depend entirely on the persuasive force of the idea.

The statutory ban in this case affects only that aspect of the union’s efforts to communicate its views that calls for an automatic response to a signal, rather than a reasoned response to an idea. And the restriction on picketing is limited in geographical scope to sites of neutrals in the labor dispute. Because I believe that such restrictions on conduct are sufficiently justified by the purpose to avoid embroiling neutrals in a third party’s labor dispute, I agree that the statute is consistent with the First Amendment.

Mr. Justice Brennan,

with whom Mr. Justice White and Mr. Justice Marshall join, dissenting.

NLRB v. Fruit Packers, 377 U. S. 58 (1964) (Tree Fruits), held that it was permissible under § 8 (b)(4) (ii)(B) of the National Labor Relations Act (NLRA) for a union involved in a labor dispute with a primary employer to conduct peaceful picketing at a secondary site with the object of persuading consumers to boycott the primary employer’s product. Today’s decision stunts Tree Fruits by declaring that secondary site picketing is illegal when the primary employer’s product at which it is aimed happens to be the only product which the secondary retailer distributes. I dissent.

The NLRA does not place the secondary site off limits to all consumer picketing over the dispute with the primary employer. Tree Fruits, supra, at 63. The Act only prohibits a labor union from picketing to “coerce” a secondary firm into joining the union’s struggle against the primary employer. § 8 (b) (4) (ii) (B). But inasmuch as the secondary retailer is, by definition, at least partially dependent upon the sale of the primary employer’s goods, the secondary firm will necessarily feel the pressure of labor activity pointed at the primary enterprise. Thus, the pivotal problem in secondary site picketing cases is determining when the pressure imposed by consumer picketing is illegitimate, and therefore deemed to “coerce” the secondary retailer.

Tree Fruits addressed this problem by focusing upon whether picketing at the secondary site is directed at the primary employer’s product, or whether it more broadly exhorts customers to withhold patronage from the full range of goods carried by the secondary retailer, including those goods originating from nonprimary sources. The Tree Fruits test reflects the distinction between economic damage sustained by the secondary firm solely by virtue of its dependence upon the primary employer’s goods, and injuries inflicted upon interests of the secondary firm that are unrelated to the primary dispute — injuries that are calculated to influence the secondary retailer’s conduct with respect to the primary dispute.

The former sort of harm is simply the result of union success in its conflict with the primary employer. The secondary firm is hurt only insofar as it entwines its economic fate with that of the primary employer by carrying the latter's goods. To be sure, the secondary site may be a battleground; but the secondary retailer, in its own right, is not enlisted as a combatant.

The latter kind of economic harm to the secondary firm, however, does not involve merely the necessary commercial fallout from the primary dispute. Appeals to boycott non-primary goods sold by a secondary retailer place more at stake for the retailer than the risk it has assumed by handling the primary employer’s product. Four considerations indicate that this broader pressure is highly undesirable from the standpoint of labor policy. First, nonprimary product boycotts distort the strength of consumer response to the primary dispute; the secondary retailer’s decision to continue purchasing the primary employer’s line becomes a function of consumer reaction to the primary conflict amplified by the impact of the boycott upon nonprimary goods. Tree Fruits, supra, at 72, and n. 20. Second, although it seems proper to compel the producer or retailer of an individual primary product to internalize the costs of labor conflict engendered in the course of the item’s production, a nonprimary product boycott may unfairly impose multiple costs upon the secondary retailer who does not wish to terminate his relationship with the primary employer. Third, nonprimary product boycotts attack interests of the secondary firm that are not derivative of the interests of the primary enterprise; because the retailer thereby becomes an independent disputant, the primary labor controversy may be aggravated and complicated. Finally, by affecting the sales of nonprimary goods handled by the secondary firm, the disruptive effect of the primary dispute is felt even by those businesses that manufacture and sell non-primary products to the secondary retailer.

These sound reasons support Tree Fruits’ conclusion that the legality of secondary site picketing should turn upon whether the union pickets urge only a boycott of the primary employer’s product. 377 U. S., at 63-64, 71-72. Concomitantly, Tree Fruits expressly rejected the notion that the coer-civeness of picketing should depend upon the extent of loss suffered by the secondary firm through diminished purchases of the primary product. Id., at 72-73. Nevertheless, the Court has now apparently abandoned the Tree Fruits approach, choosing instead to identify coerciveness with the percentage of the secondary firm’s business made up by the primary product.

The conceptual underpinnings of this new standard are seriously flawed. The type of economic pressure exerted upon the secondary retailer by a primary product boycott is the same whatever the percentage of its business the primary product composes — in each case, a decline in sales at the secondary outlet may well lead either to a decrease in purchases from the primary employer or to product substitution. To be sure, the damaging effect of this pressure upon individual secondary firms will vary, but it is far from clear that the harmfulness of a primary product boycott is necessarily correlated with the percentage of the secondary firm’s business the product constitutes. For example, a marginally profitable large retailer may handle a multiplicity of products, yet find the decrease in sales of a single, very profitable, primary product ruinous. A small healthy single product secondary retailer, on the other hand, might be able to sustain losses during a boycott, or substitute a comparable product.

Moreover, it is odd to treat the NLRA’s prohibition against coercion of neutral secondary parties as a means of protecting single product secondary firms from the effects of a successful primary product boycott. A single product retailer will always suffer a degree of harm incident to a successful primary product boycott, whether or not the retailer becomes the focus of union activity. Thus, a ban on coercion of neutral businesses is mismatched to the goal of averting that harm. Far more sensible would be to read the statutory ban on coercion of neutral parties as shielding secondary firms from the injuries that ensue precisely because of union conduct aimed at them. Nonprimary product boycotts fall within this category because they are specifically targeted at the secondary retailer.

Unlike the Tree Fruits rule, the test formulated by the Court in this case is not rooted in the policy of maintaining secondary firm neutrality with respect to the primary dispute. There is no ground to believe that a single product secondary retailer is more prone than a multiproduct retailer to react to a primary product boycott by joining the union in its struggle against the primary employer. On the contrary, the single product secondary firm is likely to be the primary employer’s strongest ally because of the alignment of their respective economic interests. Nor is it especially unfair to subject the single product retailer to a primary product boycott. Whatever the percentage of a retailer’s business that is constituted by a given item, the retailer necessarily assumes the risks of interrupted supply or declining sales that follow when labor conflict embroils the manufacturer of the item.

By shifting its focus from the nature of the product boycotted to the composition of the secondary firm’s business, today’s decision substitutes a confusing and unsteady standard for Tree Fruits’ clear approach to secondary site picketing. Labor unions will no longer be able to assure that their secondary site picketing is lawful by restricting advocacy of a boycott to the primary product, as ordained by Tree Fruits. Instead, picketers will be compelled to guess whether the primary product makes up a sufficient proportion of the retailer’s business to trigger the displeasure of the courts or the Labor Relations Board. Indeed, the Court’s general disapproval of “[p]roduct picketing that reasonably can be expected to threaten neutral parties with ruin or substantial loss . . . ,” ante, at 614, leaves one wondering whether unions will also have to inspect balance sheets to determine whether the primary product they wish to picket is too profitable for the secondary firm.

I continue to “disagree . . . that the test of ‘to threaten, coerce, or restrain’ ... is whether [the secondary retailer] suffered or was likely to suffer economic loss.” Tree Fruits, supra, at 72. I would adhere to the primary product test. Accordingly, I dissent.

       Part III of the opinion is joined only by The Chief Justice, Mr. Justice Stewart, and Mr. Justice RehNQUist.

       The title companies are Land Title Co. of Clark County, Land Title Co. of Cowlitz County, Land Title Co. of Kitsap County, Land Title Co. of Pierce County, and Land Title Co. of Snohomish County.

       The picket signs read:
      “SAFECO NONUNION DOES NOT EMPLOY MEMBERS OF OR HAVE CONTRACT WITH RETAIL STORE EMPLOYEES LOCAL 1001.”

       The distribution of handbills has not been an issue in this case. Section 8 (b) (4) of the National Labor Relations Act does not prohibit “publicity, other than picketing, for the purpose of truthfully advising the public . . . that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer. . . .” 61 Stat. 141, as amended, 73 Stat. 543, 29 U. S. C. § 158 (b) (4).

       The parties waived intermediate proceedings before an administrative law judge and submitted the stipulated facts directly to the Board. 226 N. L. R. B., at 754.

       The Union has not challenged the Court of Appeals’ determination that the title companies are neutral, secondary parties.

       61 Stat. 141, as amended, 73 Stat. 542, 29 U. S. C. § 158 (b) (4) (ii) (B).

       The so-called merged product cases also involve situations where an attempt to follow the struck product inevitably encourages an illegal boycott of the neutral party. See K & K Construction Co. v. NLRB, 592 F. 2d 1228, 1231-1234 (CA3 1979); American Bread Co. v. NLRB, 411 F. 2d 147, 154-155 (CA6 1969); Honolulu Typographical Union No. 37 v. NLRB, 131 U. S. App. D. C. 1, 3-4, 401 F. 2d 952, 954-955 (1968) ; Note, Consumer Picketing and the Single-Product Secondary Employer, 47 U. Chi. L. Rev. 112, 132-136 (1979).

       See Local United Steelworkers (Dow Chemical Co.), 211 N. L. R. B. 649, 651-652 (1974), enf. denied, 173 U. S. App. D. C. 299, 524 F. 2d 853 (1975), vacated and remanded, 429 U. S. 807 (1976), complaint dism’d, 229 N. L. R. B. 302 (1977).
      We do not disagree with Mr. Justice BreNnaüst’s dissenting view that successful secondary product picketing may have no greater effect upon a neutral than a legal primary boycott. Post, at 623. But when the neutral’s business depends upon the products of a particular primary employer, secondary product picketing can produce injury almost identical to the harm resulting from an illegal secondary boycott. See generally Duerr, Developing a Standard for Secondary Consumer Picketing, 26 Lab. L. J. 585 (1975). Congress intended § 8 (b) (4) (ii) (B) to protect neutrals from that type of coercion. Mr. Justice BrennaN’s view that the legality of secondary picketing should depend upon whether the pickets “urge only a boycott of the primary employer’s product,” post, at 622, would provide little or no protection. No well-advised union would allow secondary pickets to carry placards urging anything other than a product boycott. Section 8 (b) (4) (ii) (B) cannot bear a construction so inconsistent with the congressional intention to prevent neutrals from becoming innocent victims in contests between others.

       The Union is responsible for the “foreseeable consequences” of its conduct. NLRB v. Operating Engineers, 400 U. S. 297, 304-305 (1971); see Radio Officers v. NLRB, 347 U. S. 17, 45 (1954). See also NLRB v. Denver Building Council, 341 U. S. 675, 689 (1951).

       Representative Griffin, a sponsor of the Landrum-Griffin amendments that brought § 8 (b) (4) (ii) (B) into law, emphasized to the Congress that the statute would outlaw secondary picketing likely to coerce the neutral party. “If the purpose of the picketing,” he said, “is to coerce or to restrain the employer of that second establishment, to get him not to do business with the manufacturer — then such a boycott could be stopped.” 105 Cong. Rec. 15673 (1959), reprinted in 2 National Labor Relations Board, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, p. 1615 (1959).
      Senator McClellan, who offered a bill quite similar to the statute actually adopted, noted that secondary picketing is particularly likely to coerce neutrals who have based their businesses upon one manufacturer’s products. He pointed out:
      “[W]e have cases of merchants who for 20 years, 10 years, or for a long period of time, may have been handling a particular brand of product. A merchant may have built his business around the product, such as the John Deere plows or some kind of machinery from some other company. The merchant may have built up his trade entirely on that product.” 105 Cong. Rec. 6667 (1959), reprinted in 2 Legislative History, supra, at 1194.

       The picketing in Tree Fruits and the picketing in this case are relatively extreme examples of the spectrum of conduct that the Board and the courts will encounter in complaints charging violations of § 8,(b) (4) (ii) (B). If secondary picketing were directed against a product representing a major portion of a neutral’s business, but significantly less than that represented by a single dominant product, neither Tree Fruits nor today’s decision necessarily would control. The critical question would be whether, by encouraging customers to reject the struck product, the secondary appeal is reasonably likely to threaten the neutral party with ruin or substantial loss. Resolution of the question in each ease will be entrusted to the Board’s expertise.

      See also Teamsters v. Vogt, Inc., 354 U. S. 284, 289; Hughes v. Superior Court, 339 U. S. 460, 465-466, 468.

       As amended by the Labor-Management Reporting and Disclosure Act of 1959 (Landrum-Griffin Act), §704 (a), 73 Stat. 542-543, 29 U. S. C. §158 (b)(4).

       Because a “merged product” consists in part of nonprimary products, the prohibition of “merged product” boycotts follows as a matter of logic and of policy from Tree Fruits’ primary product boycott test. Thus, “merged product” cases, see, e. g., American Bread Co. v. NLRB, 411 F. 2d 147, 154 (CA6 1969), do not support the Court’s view that certain purely primary product boycotts are proscribed by the National Labor Relations Act. In fact, “merged product” boycotts are wholly different than primary product boycotts against single product retailers. “Merged product” boycotts need not entail a total withholding of patronage from the secondary retailer, which may carry other, nonmerged, products.

       The only fragment of legislative history the Court musters in support of its holding forbidding picketing of single product secondary firms is Senator McClellan’s expression of concern that some secondary firms may have developed their business entirely on the basis of " 'a particular brand of product.’ ” Ante, at 615, n. 10, quoting 105 Cong. Rec. 6667 (1959), reprinted in 2 National Labor Relations Board, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, p. 1194 (1959). But that remark was offered in support of a proposed amendment restricting secondary boycotts that was rejected by the Senate. 2 Legislative History, supra, at IX. Section 8 (b) (4) as finally enacted was narrower than Senator McClellan’s proposed amendment. See Comment, 32 Stan. L. Rev. 631, 641-642, n. 61 (1980).


author: MR. Justice Stevens Mr. Justice Brennan, Mr. Justice Marshall, Mr. Justice Rehnquist,

text:
    BECK v. ALABAMA
    No. 78-6621.
    Argued February 20, 1980
    Decided June 20, 1980

      Stevens, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, Blackmun, and Powell, JJ., joined. Brennan, J., filed a concurring opinion, post, p. 646. Marshall, J., filed an opinion concurring in the judgment, post, p. 646. Rehnquist, J., filed a dissenting opinion, in which White, J., joined, post, p. 646.

      David Klingsberg argued the cause for petitioner. With him on the briefs were John A. Herfort, Jay Wishingrad, and John L. Carroll.

      Edward E. Carnes, Assistant Attorney General of Alabama, argued the cause for respondent. With him on the brief was Charles A. Graddick, Attorney General.
   MR. Justice Stevens

delivered the opinion of the Court.

We granted certiorari to decide the following question:

“May a sentence of death constitutionally be imposed after a jury verdict of guilt of a capital offense, when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense, and when the evidence would have supported such a verdict?” 444 U. S. 897.

We now hold that the death penalty may not be imposed under these circumstances.

Petitioner was tried for the capital offense of “[rjobbery or attempts thereof when the victim is intentionally killed by the defendant.” Under the Alabama death penalty statute the requisite intent to kill may not be supplied by the felony-murder doctrine. Felony murder is thus a lesser included offense of the capital crime of robbery-intentional killing. However, under the statute the judge is specifically prohibited from giving the jury the option of convicting the defendant of a lesser included offense. Instead, the jury is given the choice of either convicting the defendant of the capital crime, in which case it is required to impose the death penalty, or acquitting him, thus allowing him to escape all penalties for his alleged participation in the crime. If the defendant is convicted and the death penalty imposed, the trial judge must then hold a hearing with respect to aggravating and mitigating circumstances; after hearing the evidence, the judge may refuse to impose the death penalty, sentencing the defendant to life imprisonment without possibility of parole.

In this case petitioner’s own testimony established his participation in the robbery of an 80-year-old man named Roy Malone. Petitioner consistently denied, however, that he killed the man or that he intended his death. Under petitioner’s version of the events, he and an accomplice entered their victim’s home in the afternoon, and, after petitioner had seized the man intending to bind him with a rope, his accomplice unexpectedly struck and killed him. As the State has conceded, absent the statutory prohibition on such instructions, this testimony would have entitled petitioner to a lesser included offense instruction on felony murder as a matter of state law.

Because of the statutory prohibition, the court did not instruct the jury as to the lesser included offense of felony murder. Instead, the jury was told that if petitioner was acquitted of the capital crime of intentional killing in the course of a robbery, he “must be discharged” and “he can never be tried for anything that he ever did to Roy Malone.” Record 743. The jury subsequently convicted petitioner and imposed the death penalty; after holding a hearing with respect to aggravating and mitigating factors, the trial court refused to overturn that penalty.

In the courts below petitioner attacked the prohibition on lesser included offense instructions in capital cases, arguing that the Alabama statute was constitutionally indistinguishable from the mandatory death penalty statutes struck down in Woodson v. North Carolina, 428 U. S. 280, and Roberts v. Louisiana, 428 U. S. 325. The Alabama Court of Criminal Appeals rejected this argument on the ground that the jury’s only function under the Alabama statute is to determine guilt or innocence and that the death sentence it is required to impose after a finding of guilt is merely advisory. In a brief opinion denying review, the Alabama Supreme Court also rejected petitioner’s arguments, citing Jacobs v. State, 361 So. 2d 640 (Ala. 1978), cert. denied, 439 U. S. 1122, in which it had upheld the constitutionality of the Alabama death penalty statute against a similar challenge. 365 So. 2d 1006, 1007 (1978).

In this Court petitioner contends that the prohibition on giving lesser included offense instructions in capital cases violates both the Eighth Amendment as made applicable to the States by the Fourteenth Amendment and the Due Process Clause of the Fourteenth Amendment by substantially increasing the risk of error in the factfinding process. Petitioner argues that, in a case in which the evidence clearly establishes the defendant’s guilt of a serious noncapital crime such as felony murder, forcing the jury to choose between conviction on the capital offense and acquittal creates a danger that it will resolve any doubts in favor of conviction. In response, Alabama argues that the preclusion of lesser included offense instructions does not impair the reliability of the factfinding process or prejudice the defendant in any way. Rather, it argues that the apparently mandatory death penalty will make the jury more prone to acquit in a doubtful case and that the jury’s ability to force a mistrial by refusing to return a verdict acts as a viable third option in a case in which the jury has doubts but is nevertheless unwilling to acquit. The State also contends that prohibiting lesser included offense instructions is a reasonable way of assuring that the death penalty is not imposed arbitrarily and capriciously as a result of compromise verdicts. Finally, it argues that any error in the imposition of the death penalty by the jury can be cured by the judge after a hearing on aggravating and mitigating circumstances.

I

At common law the jury was permitted to find the defendant guilty of any lesser offense necessarily included in the offense charged. This rule originally developed as an aid to the prosecution in cases in which the proof failed to establish some element of the crime charged. See 2 C. Wright, Federal Practice and Procedure § 515, n. 54 (1969). But it has long been recognized that it can also be beneficial to the defendant because it affords the jury a less drastic alternative than the choice between conviction of the offense charged and acquittal. As Mr. Justice Brennan explained in his opinion for the Court in Keeble v. United States, 412 U. S. 205, 208, providing the jury with the “third option” of convicting on a lesser included offense ensures that the jury will accord the defendant the full benefit of the reasonable-doubt standard:

“Moreover, it is no answer to petitioner’s demand for a jury instruction on a lesser offense to argue that a defendant may be better off without such an instruction. True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction — in this context or any other — precisely because he should not be exposed to the substantial risk that the jury’s practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction. In the case before us, for example, an intent to commit serious bodily injury is a necessary element of the crime with which petitioner was charged, but not of the crime of simple assault. Since the nature of petitioner’s intent was very much in dispute at trial, the jury could rationally have convicted him of simple assault if that option had been presented. But the jury was presented with only two options: convicting the defendant of assault with intent to commit great bodily injury, or acquitting him outright. We cannot say that the availability of a third option — convicting the defendant of simple assault — -could not have resulted in a different verdict. Indeed, while we have never explicitly held that the Due Process Clause of the Fifth Amendment guarantees the right of a defendant to have the jury instructed on a lesser included offense, it is nevertheless clear that a construction of the Major Crimes Act to preclude such an instruction would raise difficult constitutional questions.” Id., at 212-213 (emphasis in original).

Alabama’s failure to afford capital defendants the protection provided by lesser- included offense instructions is unique in American criminal law. In the federal courts, it has long been “beyond dispute that the defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.” Keeble v. United States, supra, at 208. Similarly, the state courts that have addressed the issue have unanimously held that a defendant is entitled to a lesser included offense instruction where the evidence warrants it. Indeed, for all noncapital crimes Alabama itself gives the defendant a right to such instructions under appropriate circumstances. See n. 5, supra.

While we have never held that a defendant is entitled to a lesser included offense instruction as a matter of due process, the nearly universal acceptance of the rule in both state and federal courts establishes the value to the defendant of this procedural safeguard. That safeguard would seem to be especially important in a case such as this. For when the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense — but leaves some doubt with respect to an element that would justify conviction of a capital offense — the failure to give the jury the “third option” of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction.

Such a risk cannot be tolerated in a case in which the defendant’s life is at stake. As we have often stated, there is a significant constitutional difference between the death penalty and lesser punishments:

“[D]eath is a different kind of punishment from any other which may be imposed in this country. . . . From the point of view of the defendant, it is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.” Gardner v. Florida, 430 U. S. 349, 357-358 (opinion of Stevens, J.).

To insure that the death penalty is indeed imposed on the basis of “reason rather than caprice or emotion,” we have invalidated procedural rules that tended to diminish the reliability of the sentencing determination. The same reasoning must apply to rules that diminish the reliability of the guilt determination. Thus, if the unavailability of a lesser included offense instruction enhances the risk of an unwarranted conviction, Alabama is constitutionally prohibited from withdrawing that option from the jury in a capital case.

II

Alabama argues, however, that petitioner’s factual premise is wrong and that, in the context of an apparently mandatory death penalty statute, the preclusion of lesser included offense instructions heightens, rather than diminishes, the reliability of the guilt determination. The State argues that, because the jury is led to believe that a death sentence will automatically follow a finding of guilt, it will be more likely to acquit than to convict whenever it has anything approaching a reasonable doubt. In support of this theory the State relies on the historical data described in Woodson v. North Carolina, 428 U. S., at 293 (opinion of Stewart, Powell, and Stevens, JJ.), which indicated that American juries have traditionally been so reluctant to impose the death penalty that they have “with some regularity, disregarded their oaths and refused to convict defendants where a death sentence was the automatic consequence of a guilty verdict.”

The State’s argument is based on a misreading of our eases striking down mandatory death penalties. In Furman v. Georgia, 408 U. S. 238, the Court held unconstitutional a Georgia statute that vested the jury with complete and unguided discretion to impose the death penalty or not as it saw fit, on the ground that such a procedure led to the “wanton” and “freakish” imposition of the penalty. Id., at 310 (Stewart, J., concurring). In response to Furman several States enacted statutes that purported to withdraw any and all discretion from the jury with respect to the punishment decision by making the death penalty automatic on a finding of guilt. But, as the prevailing opinion noted in Woodson v. North Carolina, in so doing the States “simply papered over the problem of unguided and unchecked jury discretion.” 428 U. S., at 302 (opinion of Stewart, Powell, and Stevens, JJ.). For, as historical evidence indicated, juries faced with a mandatory death penalty statute often created their own sentencing discretion by distorting the fact-finding process, acquitting even a clearly guilty defendant if they felt he did not deserve to die for his crime. Because the jury was given no guidance whatsoever for determining when it should exercise this de facto sentencing power, the mandatory death statutes raised the same possibility that the death penalty would be imposed in an arbitrary and capricious manner as the statute held invalid in Furman.

The Alabama statute, which was enacted after Furman but before Woodson, has many of the same flaws that made the North Carolina statute unconstitutional. Thus, the Alabama statute makes the guilt determination depend, at least in part, on the jury’s feelings as to whether or not the defendant deserves the death penalty, without giving the jury any standards to guide its decision on this issue.

In Jacobs v. State, 361 So. 2d 640 (Ala. 1978), cert. denied, 439 U. S. 1122, Chief Justice Torbert attempted to distinguish the Alabama death statute from the North Carolina and Louisiana statutes on the ground that the unavailability of lesser included offense instructions substantially reduces the risk of jury nullification. Thus, because of their reluctance to acquit a defendant who is obviously guilty of some serious crime, juries will be unlikely to disregard their oaths and acquit a defendant who is guilty of a capital crime simply because of their abhorrence of the death penalty. However, because the death penalty is mandatory, the State argues that the jury will be especially careful to accord the defendant the full benefit of the reasonable-doubt standard. In the State’s view the end result is a perfect balance between competing emotional pressures that ensures the defendant a reliable procedure, while at the same time reducing the possibility of arbitrary and capricious guilt determinations.

The State’s theory, however, is supported by nothing more than speculation. The 96% conviction rate achieved by prosecutors under the Alabama statute hardly supports the notion that the statute creates such a perfect equipoise. Moreover, it seems unlikely that many jurors would react in the theoretically perfect way the State suggests. As Justice Shores stated in dissent in Jacobs v. State, supra, at 651-652:

“The Supreme Court of the United States did remark in Furman, infra, and again in Woodson, supra, that this nation abhorred the mandatory death sentence. . . . I suggest that, although there is no historical data to support it, most, if not all, jurors at this point in our history perhaps equally abhor setting free a defendant where the evidence establishes his guilt of a serious crime. We have no way of knowing what influence either of these factors have on a jury’s deliberation, and which of these unappealing alternatives a jury opts for in a particular case is a matter of purest conjecture. We cannot know that one outweighs the other. Jurors are not expected to come into the jury box and leave behind all that their human experience h'as taught them. The increasing crime rate in this country is a source of concern to all Americans. To expect a jury to ignore this reality and to find a defendant innocent and thereby set him free when the evidence establishes beyond doubt that he is guilty of some violent crime requires of our juries clinical detachment from the reality of human experience. . . .”

In the final analysis the difficulty with the Alabama statute is that it interjects irrelevant considerations into the factfind-ing process, diverting the jury’s attention from the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime. Thus, on the one hand, the unavailability of the third option of convicting on a lesser included offense may encourage the jury to convict for an impermissible reason— its belief that the defendant is guilty of some serious crime and should be punished. On the other hand, the apparently mandatory nature of the death penalty may encourage it to acquit for an equally impermissible reason — that, whatever his crime, the defendant does not deserve death. In any particular case these two extraneous factors may favor the defendant or the prosecution or they may cancel each other out. But in every case they introduce a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case.

Ill

The State also argues that, whatever the effect of precluding lesser included offense instructions might otherwise be, there is no possibility of harm under the Alabama statute because of two additional safeguards. First, although the jury may not convict the defendant of a lesser included offense, the State argues that it may refuse to return any verdict at all in a doubtful case, thus creating a mistrial. After a mistrial, the State may reindict on the capital offense or on lesser included offenses. In this case the jury was instructed that a mistrial would be declared if it was unable to agree on a verdict or if it was unable to agree on fixing the death penalty; it was also told that, in the event of a mistrial, the defendant could be tried again. Record 743.

We are not persuaded by the State’s argument that the mistrial “option” is an adequate substitute for proper instructions on lesser included offenses. It is extremely doubtful that juries will understand the full implications of a mistrial or will have any confidence that their choice of the mistrial option will ultimately lead to the right result. Thus, they could have no assurance that a second trial would end in the conviction of the defendant on a lesser included offense. Moreover, invoking the mistrial option in a case in which the jury agrees that the defendant is guilty of some offense, though not the offense charged, would require the jurors to violate their oaths to acquit in a proper case — contrary to the State’s assertions that juries should not be expected to make such lawless choices. Finally, the fact that lesser included offense instructions have traditionally been given in non-capital cases despite the availability of the mistrial “option” indicates that such instructions provide a necessary additional measure of protection for the defendant.

The State’s second argument is that, even if a defendant is erroneously convicted, the fact that the judge has the ultimate sentencing power will ensure that he is not improperly sentenced to death. Again, we are not persuaded that sentencing by the judge compensates for the risk that the jury may return an improper verdict because of the unavailability of a “third option.”

If a fully instructed jury would find the defendant guilty only of a lesser, noncapital offense, the judge would not have the opportunity to impose the death sentence. Moreover, it is manifest that the jury’s verdict must have a tendency to motivate the judge to impose the same sentence that the jury did. Indeed, according to statistics submitted by the State’s Attorney General, it is fair to infer that the jury verdict will ordinarily be followed by the judge even though he must hold a separate hearing in aggravation and mitigation before he imposes sentence. Under these circumstances, we are unwilling to presume that a post-trial hearing will always correct whatever mistakes have occurred in the performance of the jury’s factfinding function.

Accordingly, the judgment of the Alabama Supreme Court is Reversed.

Mr. Justice Brennan,

concurring.

Although I join the Court’s opinion, I continue to believe that the death penalty is, in all circumstances, contrary to the Eighth Amendment’s prohibition against imposition of cruel and unusual punishments. Gregg v. Georgia, 428 U. S. 153, 227 (1976) (Brennan, J., dissenting).

Mr. Justice Marshall,

concurring in the judgment.

I continue to believe that the death penalty is, under all circumstances, cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. Furman v. Georgia, 408 U. S. 238, 314-374 (1972) (Marshall, J., concurring); Gregg v. Georgia, 428 U. S. 153, 231-241 (1976) (Marshall, J., dissenting); Godfrey v. Georgia, 446 U. S. 420, 433-442 (1980) (Marshall, J., concurring in judgment). In addition, I agree with the Court that Alabama’s prohibition on giving lesser included offense instructions in capital cases is unconstitutional because it substantially increases the risk of error in the factfinding process. I do not, however, join in the Court’s assumption that the death penalty may ever be imposed without violating the command of the Eighth Amendment that no “cruel and unusual punishments” be imposed. Lockett v. Ohio, 438 U. S. 586, 621 (1978) (Marshall, J., concurring in judgment); Bell v. Ohio, 438 U. S. 637, 643-644 (1978) (Marshall, J., concurring in judgment). I join in the judgment of the Court.

Mr. Justice Rehnquist,

with whom Mr. Justice White joins, dissenting.

The opinion of the Court begins by stating that we granted certiorari to decide the question of whether a sentence of death may be constitutionally imposed after a Jury verdict of guilt of a capital offense, when the jury was not permitted to consider a verdict of guilt of a lesser included noncapital offense where the evidence would have supported such a verdict. I find the Court’s treatment of this issue highly unusual, since although this question was raised in the Alabama trial court and the Alabama intermediate Court of Appeals, it was not preserved in the Supreme Court of Alabama. That court began its opinion with this language:

“Petitioner Beck raises only one issue here:
“ ‘Whether the Alabama Court of Criminal Appeals erred in its finding that the Alabama Death Penalty Statute is not in violation of Article III, Section 43, Article V, Section 124 and Amendment 38, of the 1901 Constitution of Alabama.’ ” 365 So. 2d 1006, 1007.

Obviously, unless the Supreme Court of Alabama was wholly in error in deciding what issue petitioner had raised there, it was obviously not a question involving the United States Constitution.

I do not believe it suffices, under the jurisdiction granted to us by the Constitution and by Congress, to brush this matter off as the Court does in its footnote 6 on the grounds that petitioner presented his claim “in some fashion” to the Supreme Court of ^Alabama, and that “[t]he State has never argued that this, presentation was insufficient, as a matter of state law, to preserve the issue.”

This is not a matter that may be stipulated or waived by any of the parties to a case decided on its merits here. Title 28 U. S. C. § 1257 provides that our certiorari jurisdiction extends only to “[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had. . . .”

In Hulbert v. Chicago, 202 U. S. 275, 280 (1906), this Court said:

“It is urged that in the writ of error and petition for citation it is stated that certain rights and privileges were claimed under the Constitution of the United States, and that the Supreme Court of the State of Illinois decided against such rights and privileges, and, it is further urged, that the chief justice of the court allow the writ of error. This is not sufficient.”

More recently, in Street v. New York, 394 U. S. 576, 582 (1969), the Court has said:

“Moreover, this Court has stated that when, as here, the highest state court has failed to pass upon a federal question, it will be assumed that the omission was due to want of proper presentation in the state courts unless the aggrieved party in this Court can affirmatively show the contrary.” (Emphasis supplied.)

Thus it is insufficient that the State “has never argued” that a judgment under review is not that of the highest court of the State in which a judgment could be had; it will be assumed that the omission was due to want of proper presentation in the state courts, unless the aggrieved party in this Court can affirmatively show the contrary. Here I am not convinced that such a showing has been made.

Believing, therefore, because of the proceedings in the Supreme Court of Alabama, that we do not have jurisdiction under 28 U. S. C. § 1257 to decide the question which the Court purports to decide, I dissent.

       There are 14 capital offenses under the Alabama statute, Ala. Code §§ 13-11-2 (a) (1) — (14) (1975):
      “(1) Kidnapping for ransom or attempts thereof, when the victim is intentionally killed by the defendant;
      “(2) Robbery or attempts thereof when the victim is intentionally killed by the defendant;
      “(3) Rape when the victim is intentionally killed by the defendant; camal knowledge of a girl under 12 years of age, or abuse of such girl in an attempt to have camal knowledge, when the victim is intentionally killed by the defendant;
      “(4) Nighttime burglary of an occupied dwelling when any of the occupants is intentionally killed by the defendant;
      “(5) The murder of any police officer, sheriff, deputy, state trooper or peace officer of any kind, or prison or jail guard while such prison or jail guard is on duty or because of some official or job-related act or performance of such officer or guard;
      “(6) Any murder committed while the defendant is under sentence of life imprisonment;
      “(7) Murder in the first degree when the killing was done for a pecuniary or other valuable consideration or pursuant to a contract or for hire;
      “(8) Indecent molestation of, or an attempt to indecently molest, a child under the age of 16 years, when the child victim is intentionally killed by the defendant;
      “(9) Willful setting off or exploding dynamite or other explosive under circumstances now punishable by section 13-2-60 or 13-2-61, when a person is intentionally killed by the defendant because of said explosion;
      “(10) Murder in the first degree wherein two or more human beings are intentionally killed by the defendant by one or a series of acts;
      “(11) Murder in the first degree where the victim is a public official or public figure and the murder stems from or is caused by or related to his official position, acts or capacity;
      “(12) Murder in the first degree committed while the defendant is engaged or participating in the act of unlawfully assuming control of any aircraft by use of threats or force with intent to obtain any valuable consideration for the release of said aircraft or any passenger or crewman thereon, or to direct the route or movement of said aircraft, or otherwise exert control over said aircraft;
      “(13) Any murder committed by a defendant who has been convicted of murder in the first or second degree in the 20 years preceding the crime; or
      “(14) Murder when perpetrated against any witness subpoenaed to testify at any preliminary hearing, trial or grand jury proceeding against the defendant who kills or procures the killing of witness, or when perpetrated against any human being while intending to kill such witness.”

       Alabama Code § 13-11-2 (b) (1975) states that “[ejvidence of intent under this section shall not be supplied by the felony-murder doctrine.” In Ritter v. State, 375 So. 2d 270, 275 (1979), cert, pending, No. 79-5741, the Alabama Supreme Court held that the State could not satisfy its burden of proof under the new death penalty statute simply by showing that the defendant intended to commit robbery or even by showing that he should have known that there was a substantial possibility that someone would be killed. Although the State is not required to prove that the defendant was the actual triggerman, it must show that he had a “particularized intent” to kill the victim or that he “sanctioned and facilitated the crime [of intentional killing] so that his culpability is comparable to that of” the actual killer.

       Alabama Code § 13-11-2 (a) (1975) provides:
      “If the jury finds the defendant guilty, it shall fix the punishment at death when the defendant is charged by indictment with any of the following offenses and with aggravation, which must also be averred in the indictment, and which offenses so charged with said aggravation shall not include any lesser offenses.”
      The last phrase of this subsection has been consistently construed to preclude any lesser included offense instructions in capital cases. See Jacobs v. State, 361 So. 2d 640, 646 (Ala. 1978) (Torbert, C. J., concurring in part and dissenting in part), cert. denied, 439 U. S. 1122; Evans v. Birtton, 472 F. Supp. 707, 714 (SD Ala. 1979).

       Alabama Code § 13-11-3 (1975) provides:
      “If the jury finds the defendant guilty of one of the aggravated offenses listed in section 13-11-2 and fixes the punishment at death, the court shall thereupon hold a hearing to aid the court to determine whether or not the court will sentence the defendant to death or to life imprisonment without parole. In the hearing, evidence may be presented as to any matter that the court deems relevant to sentence and shall include any matters relating to any of the aggravating or mitigating circumstances enumerated in sections 13-11-6 and 13-11-7. Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements; provided further, that this section shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or the state of Alabama. The state and the defendant, or his counsel, shall be permitted to present argument for or against the sentence of death.”

       The Alabama rule in cases other than capital cases is that the defendant is entitled to a lesser included offense instruction if “there is any reasonable theory from the evidence which would support the position.” Fulghum v. State, 291 Ala. 71, 75, 277 So. 2d 886, 890 (1973). The State concedes that under this standard petitioner would have been entitled to instructions on first-degree (felony) murder and robbery. Brief for Respondent 78-79; Tr. of Oral Arg. 23. The parties disagree as to whether petitioner also would have been entitled to an instruction on second-degree murder under state law. We, of course, have no occasion to pass on this issue.

       In the trial court petitioner’s counsel argued that telling the jury that “you have got a choice of two things, either you can sentence him to die or you can acquit him” unconstitutionally interfered with its fact-finding role and made the statute an unconstitutional mandatory death penalty. Record 40. In the Alabama Court of Criminal Appeals the court described petitioner’s argument with respect to the constitutionality of the Alabama death penalty statute as follows:
      “The trial jury cannot be instructed on lesser included offenses.
      “In the absence of such a provision, the appellant insists that the only choice that a petit jury has is imposing death or acquitting the defendant. He states that because only those two choices are presented to the jury, the statute can only be interpreted as having a mandatory death provision.” 365 So. 2d 985, 999 (1978).
      In his petition for certiorari to the Alabama Supreme Court petitioner specifically stated that he was challenging the Alabama statute as being in violation of the Eighth, Sixth, and Fourteenth Amendments to the United States Constitution and argued that it is “in fact a mandatory death sentence.” However, petitioner did not explore these issues more fully in his brief to the Alabama Supreme Court, Tr. of Oral Arg. 5, and, in its one-paragraph opinion affirming the judgment of the Alabama Court of Criminal Appeals, the Supreme Court adverted only to the state constitutional issues petitioner had raised.
      In his dissenting opinion Mr. Justice Rehnquist takes the position that we are required to construe the Alabama Supreme Court’s failure to address petitioner’s federal constitutional claims as a determination that petitioner had waived those claims. We disagree. It is clear that petitioner did present his federal claims in some fashion to the Alabama Supreme Court. The State has never argued that this presentation was insufficient, as a matter of state law, to preserve the issue. On the contrary, in its brief in opposition to the petition for certiorari, the State argued that “the Alabama Appellate Courts have reviewed these matters raised in the petition, fully considered them and correctly decided the issues.” Similarly, after certiorari was granted, the State again did not argue that petitioner’s due process and Eighth Amendment claims were not properly raised or preserved below.
      While the parties of course cannot confer jurisdiction on this Court by agreement, we should not simply brush aside the Alabama Attorney General’s view of his own State’s law. Cf. Chambers v. Mississippi, 410 U. S. 284, 290, n. 3. That is especially true in a case such as this, where the death penalty was imposed in a plainly unconstitutional manner. Cf. Vachon v. New Hampshire, 414 U. S. 478.

       365 So. 2d, at 1000. The Alabama Court of Criminal Appeals relied on Jacobs v. State, 361 So. 2d 640 (Ala. 1978), cert. denied, 439 U. S. 1122, for this proposition. The majority in Jacobs did not specifically discuss the validity of the prohibition on lesser included offense instructions. However, in an opinion concurring in part and dissenting in part, Chief Justice Torbert stated that, far from being suspect, the prohibition helped to save the statute from being an unconstitutional mandatory death penalty. He noted that in Roberts v. Louisiana, 428 U. S. 325, this Court had struck down a mandatory death penalty statute which required the judge to give the jury the option of convicting on lesser included offenses whether or not such instructions were warranted by the evidence, on the ground that such a statute gave the jury de facto, standardless sentencing discretion. Because Alabama’s statute withdraws from the jury the discretion to control the imposition of the death penalty by convicting the defendant on a lesser included offense and because it is the judge and not the jury who does the actual sentencing, the chief justice concluded that the statute was acceptable as a matter of federal constitutional law.

       Petitioner also argues that, because Alabama law requires a trial judge to give lesser included offense instructions where appropriate in noncapi-tal cases, the total prohibition on such instructions in capital cases constitutes an irrational discrimination violative of the Equal Protection Clause of the Fourteenth Amendment. In view of our disposition of the case, it is not necessary to consider this issue. Moreover, petitioner failed to raise this claim in the courts below.

       2 M. Hale, Pleas of the Crown 301-302 (1736); 2 W. Hawkins, Pleas of the Crown 623 (6th ed. 1787); 1 J. Chitty, Criminal Law 250 (5th Am. ed. 1847); T. Starkie, Treatise on Criminal Pleading 351-352 (2d ed. 1822).

       Mississippi’s post-Furman death penalty statute also contained a prohibition on charging lesser included offenses. In Jackson v. State, 337 So. 2d 1242, 1255 (1976), the Mississippi Supreme Court struck down this part of the statute on the ground that it “constitutes an impediment to full and complete administration of justice in the trial of capital cases and is therefore not binding on the courts. . . .” While warning that lesser included offense instructions should not be given “indiscriminately or automatically,” the court held that they should continue to be given when “warranted by the evidence.”

       This principle was first announced in Stevenson v. United States, 162 U. S. 313, 323:
      “A judge may be entirely satisfied from the whole evidence in the case that the person doing the killing was actuated by malice; that he was not in any such passion as to lower the grade of the crime from murder to manslaughter by reason of any absence of malice; and yet if there be any evidence fairly tending to bear upon the issue of manslaughter, it is the province of the jury to determine from all the evidence what the condition of mind was, and to say whether the crime was murder or manslaughter.”
      See also Berra v. United States, 351 U. S. 131, 134, where Mr. Justice Harlan indicated that the defendant’s entitlement to such an instruction could not be doubted:
      “In a case where some of the elements of the crime charged themselves constitute a lesser crime, the defendant, if the evidence justified it, would no doubt be entitled to an instruction which would permit a finding of guilt of the lesser offense. See Stevenson v. United States, 162 U. S. 313.” Rule 31 (c) of the Federal Rules of Criminal Procedure provides that “[t]he defendant may be found guilty of an offense necessarily included in the offense charged. . . Although the Rule is permissively phrased, it has been universally interpreted as granting a defendant a right to a requested lesser included offense instruction if the evidence warrants it. See, e. g., United States v. Scharf, 558 F. 2d 498, 502 (CA8 1977); United States v. Crutchfield, 547 F. 2d 496, 500 (CA9 1977); Government of Virgin Islands v. Carmona, 422 F. 2d 95, 100 (CA3 1970); 2 C. Wright, Federal Practice and Procedure § 515, n. 57 (1969).

       Although the States vary in their descriptions of the quantum of proof necessary to give rise to a right to a lesser included offense instruction, they agree that it must be given when supported by the evidence See, e. g., Christie v. State, 580 P. 2d 310 (Alaska 1978); State v. Valencia, 121 Ariz. 191, 589 P. 2d 434 (1979); Westbrook v. State, 265 Ark. 736, 580 S. W. 2d 702 (1979); People v. Preston, 9 Cal. 3d 308, 508 P. 2d 300 (1973); People v. White, 191 Colo. 353, 553 P. 2d 68 (1976); State v. Brown, 173 Conn. 254, 377 A. 2d 268 (1977); Matthews v. State, 310 A. 2d 645 (Del. 1973); State v. Terry, 336 So. 2d 65 (Fla. 1976); Loury v. State, 147 Ga. App. 152, 248 S. E. 2d 291 (1978); State v. Travis, 45 Haw. 435, 368 P. 2d 883 (1962); State v. Beason, 95 Idaho 267, 506 P. 2d 1340 (1973); People v. Simpson, 57 Ill. App. 3d 442, 373 N. E. 2d 809 (1978); Pruitt v. State, 269 Ind. 559, 382 N. E. 2d 150 (1978); State v. Millspaugh, 257 N. W. 2d 513 (Iowa 1977); State v. White, 225 Kan. 87, 587 P. 2d 1259 (1978); Martin v. Commonwealth, 571 S. W. 2d 613 (Ky. 1978); State v. Carmichael, 405 A. 2d 732 (Me. 1979); Blackwell v. State, 278 Md. 466, 365 A. 2d 545 (1976), cert. denied, 431 U. S. 918; Commonwealth v. Santo, 375 Mass. 299, 376 N. E. 2d 866 (1978); People v. Jones, 395 Mich. 379, 236 N. W. 2d 461 (1975) ; State v. Merrill, 274 N. W. 2d 99 (Minn. 1978); Jackson v. State, 337 So. 2d 1242 (Miss. 1976); State v. Stone, 571 S. W. 2d 486 (Mo. App. 1978); State v. Ostwald, 180 Mont. 530, 591 P. 2d 646 (1979); State v. Hegwood, 202 Neb. 379, 275 N. W. 2d 605 (1979); Colle v. State, 85 Nev. 289, 454 P. 2d 21 (1969); State v. Boone, 119 N. H. 594, 406 A. 2d 113 (1979); State v. Saulnier, 63 N. J. 199, 306 A. 2d 67 (1973); State v. Aubrey, 91 N. M. 1, 569 P. 2d 411 (1977); People v. Henderson, 41 N. Y. 2d 233, 359 N. E. 2d 1357 (1976); State v. Drumgold, 297 N. C. 267, 254 S. E. 2d 531 (1979); State v. Piper, 261 N. W. 2d 650 (N. D. 1977) ; State v. Kilby, 50 Ohio St. 2d 21, 361 N. W. 2d 1336 (1977); Gilbreath v. State, 555 P. 2d 69 (Okla. Crim. App. 1976); State v. Thayer, 32 Ore. App. 193, 573 P. 2d 758 (1978); Commonwealth v. Terrell, 482 Pa. 303, 393 A. 2d 1117 (1978); State v. Funchess, 267 S. C. 427, 229 S. E. 2d 331 (1976); State v. Grimes, 90 S. D. 43, 237 N. W. 2d 900 (1976); Howard v. State, 578 S. W. 2d 83 (Term. 1979); Day v. State, 532 S. W. 2d 302 (Tex. Crim. App. 1975); State v. Gillian, 23 Utah 2d 372, 463 P. 2d 811 (1970); Painter v. Commonwealth, 210 Va. 360, 171 S. E. 2d 166 (1969); State v. Workman, 90 Wash. 2d 443, 584 P. 2d 382 (1978); State v. Wayne, - W. Ya. -, 245 S. E. 2d 838 (1978); Leach v. State, 83 Wis. 2d 199, 265 N. W. 2d 495 (1978); Janes v. State, 580 P. 2d 1150 (Wyo. 1978).

       See Gardner v. Florida, 430 U. S. 349 (opinion of Stevens, J.); Lockett v. Ohio, 438 U. S. 586. In Lockett The Chief Justice explained the rationale for requiring more reliable procedures in capital sentencing determinations:
      “There is no perfect procedure for deciding in which cases governmental authority should be used to impose death. But a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant’s character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.” Id., at 605.
      See also Woodson v. North Carolina, 428 U. S. 280, 305 (opinion of Stewart, Powell, and Stevens, JJ.):
      “Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.”

       We need not and do not decide whether the Due Process Clause would require the giving of such instructions in a noncapital case.

       The jury is not told that the judge is the final sentencing authority. Rather, the jury is instructed that it must impose the death sentence if it finds the defendant guilty and is led to believe, by implication, that its sentence will be final.

       The same analysis led to the conclusion that Louisiana’s death penalty statute was unconstitutional. Roberts v. Louisiana, 428 U. S. 325 (opinion of Stewart,' Powell, and Stevens, JJ.). That case involved a mandatory death penalty statute that required the judge to give a lesser included offense instruction whether or not it was justified by the evidence. Because such a procedure “invites the jurors to disregard their oaths and choose a verdict for a lesser offense whenever they feel the death penalty is inappropriate,” it was the equivalent of a discretionary death statute in which the jury was given complete and unreviewable discretion, unguided by any standards as to when the death penalty was appropriate. Id., at 335.

       In Gregg v. Georgia, 428 U. S. 153, 199 (opinion of Stewart, Powell, and SteveNS, JJ.), the prevailing opinion specifically rejected the argument that the new Georgia statute was unconstitutional because the availability of lesser included offense instructions made it possible that a jury might erroneously remove a defendant from consideration as a candidate for the death penalty. Under a statute like Georgia’s, where guilt is determined separately from punishment, there is little risk that the jury will use its power to decide guilt to make a de facto punishment decision. Thus, eliminating lesser included offense instructions would not have the effect of reducing the risk of arbitrariness in the imposition of the death penalty. On the contrary, as was stated in a footnote in Gregg, eliminating this and other procedural safeguards that have long been accorded criminal defendants would raise serious constitutional questions. Id., at 199, n. 50.
      Thus, it is only in cases like this in which the preclusion of lesser included offenses is linked to a mandatory death penalty that the State could even raise the possibility that the elimination of this procedural safeguard was a permissible way to reduce the arbitrary and capricious infliction of the death penalty.

       Forty-eight out of the first 50 defendants tried under the Alabama statute were convicted. See Brief in Opposition in Jacobs v. Alabama, O. T. 1978, No. 78-5696, pp. 10, 35. In this ease the State has argued that the reason for the high conviction rate is that prosecutors rarely indict for capital offenses except in the clearest of eases because of the risk that a failure of proof on an essential element of the crime might lead to an acquittal. Assuming that this is the reason for the high conviction rate, the statistics still do not support the hypothesis that juries will be more likely to acquit than convict in a doubtful case.

       The closing arguments in this case indicate that under the Alabama statute the issue of whether or not the defendant deserves the death penalty will often seem more important than the issue of whether the State has proved each and every element of the capital crime beyond a reasonable doubt. Thus, in this case both the prosecutors and defense attorneys spent a great deal of argument time on the desirability of the death penalty in general and its application to the petitioner in particular, rather than focusing on the crucial issue of whether the evidence showed that petitioner had possessed the intent necessary to convict on the capital charge.

       Alabama Code § 13-11-2 (c) (1975) provides:
      “[I]f the jury finds the defendant not guilty, the defendant must be discharged. The court may enter a judgment of mistrial upon failure of the jury to agree on a verdict of guilty or not guilty or on the fixing of the penalty of death. After entry of a judgment of mistrial, the defendant may be tried again for the aggravated offense, or he may be reindicted for an offense wherein the indictment does not allege an aggravated circumstance. If the defendant is reindicted for an offense wherein the indictment does not allege an aggravated circumstance, the punishment upon conviction shall be as heretofore or hereafter provided by law; however, the punishment shall not be death or life imprisonment without parole.”

       The jury in this case could hardly have been sure of the effect of a mistrial. In his closing argument one of petitioner’s attorneys told the jury that “if I can have any opportunity under any reindictment or any other way to take him [petitioner] before this bar of justice and enter a plea of guilty of murder, robbery, either one, life in prison, I’ll take him.” Record 689. At another point, however, petitioner’s other attorney indicated that petitioner could still be punished even if he were acquitted, stating: “I submit to you if you acquit him he’s still in the Etowah County Jail. I submit to you if you acquit him that he can receive his due punishment, but I say to you his due punishment is not death.” Id., at 709.
      In his instructions to the jury the trial judge stated that, if acquitted, petitioner could not be tried “for anything he ever did to Roy Malone.” And, although he explained that petitioner could be retried in the event of a mistrial, he did not elaborate on what that retrial would entail. Id., at 743.

       The State’s brief in opposition to the petition for certiorari in Jacobs v. Alabama, O. T. 1978, No. 78-5696, states that of the first 45 defendants sentenced after conviction by a jury of capital offenses, 37 received the death penalty from the trial judge. See pp. 10, 35 of that brief. In his dissent in Jacobs v. State, 361 So. 2d, at 650-651, Justice Jones pointed out the practical obstacles to treating the jury’s imposition of the death penalty as being purely advisory:
      “[T]o leave sentence reduction in the prerogative of the trial court is to place undue pressures upon this office. Again, admittedly, a trial judge must often be the bulwark of the legal system when presented with unpopular causes and adverse public opinion. This State’s recent history, however, reflects the outcry of unjustified criticism attendant with a trial judge’s reduction of a sentence to life imprisonment without possibility of parole, after a jury has returned a sentence of death. Clearly, this pressure constitutes an undue compulsion on the trial judge to conform the sentence which he imposes with that previously returned by the jury.” (Footnote omitted.)