author: Justice Marshall

text:
    JOHNSON et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.
    No. 84-518.
    Argued April 22, 1985
    Decided June 17, 1985

      Marshall, J., delivered the opinion for a unanimous Court.

      Solicitor General Lee argued the cause for petitioners in both cases. With him on the briefs for petitioner in No. 84-710 were Deputy Solicitor General Wallace, Alan I. Horowitz, Johnny J. Butler, and Vella M. Fink. William H. Engelman, Harriet E. Cooperman, and Paul D. Bekman filed a brief for petitioners in No. 84-518.

      L. William Gawlik argued the cause for respondents in both cases. With him on the brief were Benjamin L. Brown and Ambrose T. Hartman.

       Together with No. 84-710, Equal Employment Opportunity Commission v. Mayor and City Council of Baltimore et al., also on certiorari to the same court.

         Alfred Miller and Steven S. Honigman filed a brief for the American Association of Retired Persons urging reversal.
      Briefs of amici curiae urging affirmance were filed for the State of New York by Robert Abrams, Attorney General, Robert Hermann, Solicitor General, and Harvey M. Berman, Assistant Attorney General; for the State of Vermont by Jeffrey L. Amestoy, Attorney General, and J. Wallace Malley, Jr., Assistant Attorney General; for the National Association for Rights Protection and Advocacy et al. by Steven J. Schwartz, David Ferleger, David Shaw, Paul Jameson, Daniel Stormer, and Nonnie S. Bumes; and for the National League of Cities by Frederick Simpich.

      A brief for the Commonwealth of Massachusetts et al. as amici curiae was filed by Francis X. Bellotti, Attorney General of Massachusetts, H. Reed Witherby and Thomas A. Bamico, Assistant Attorneys General, and by the Attorneys General of their respective States as follows: David L. Armstrong of Kentucky, LeRoy S. Zimmerman of Pennsylvania, Linley E. Pearson of Indiana, William J. Guste, Jr., of Louisiana, Edwin Lloyd Pittman of Mississippi, William L. Webster of Missouri, Irwin I. Kimmel-man of New Jersey, Anthony Celebrezze, Jr., of Ohio, and W. J. Michael Cody of Tennessee.

   Justice Marshall

delivered the opinion of the Court.

The issue is whether a federal statute generally requiring federal firefighters to retire at age 55 establishes, as a matter of law, that age 55 is a bona fide occupational qualification (BFOQ) for nonfederal firefighters within the meaning of the Age Discrimination in Employment Act of 1967, 81 Stat. 602, as amended, 29 U. S. C. §621 et seq. (ADEA or Act).

h — I

Congress enacted the ADEA “to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; [and] to help employers and workers find ways of meeting problems arising from the impact of age on employment.” 29 U. S. C. § 621(b). To this end, the Act today prohibits virtually all employers from discriminating on the basis of age against employees or applicants for employment who are between the ages of 40 and 70 by, for example, discharging them or requiring them to retire involuntarily. §§ 623(a), 631(a). The Act contains one general exception to this prohibition: when age is shown to be “a bona fide occupational qualification reasonably necessary to the normal operation of the particular business,” § 623(f)(1), an employee may be terminated on the basis of his age before reaching age 70.

Since enacting the ADEA in 1967, Congress has amended its provisions several times. The ADEA originally did not apply to the Federal Government, to the States or their political subdivisions, or to employers with fewer than 25 employees, but in 1974 Congress extended coverage to Federal, State, and local Governments, and to employers with at least 20 workers. §§ 630(b), 633a. Also, while the Act initially covered employees only up to age 65, in 1978 Congress raised the maximum age to 70 for state, local, and private employees and eliminated the cap entirely for federal workers. Age Discrimination in Employment Act Amendments of 1978, § 3(a), 92 Stat. 189, 29 U. S. C. § 631(b) (hereinafter 1978 Amendments).

The 1978 Amendments eliminated substantially all federal age limits on employment, but they left untouched several mandatory retirement provisions of the federal civil service statute applicable to specific federal occupations, including firefighters, air traffic controllers, and law enforcement officers, as well as mandatory retirement provisions applicable to the Foreign Service and the Central Intelligence Agency. Among the provisions that were left unaffected by the 1978 Amendments is 5 U. S. C. § 8335(b), which requires certain federal law enforcement officers and firefighters to retire at age 55 if they have sufficient years of service to qualify for a pension and their agency does not find that it is in the public interest to continue their employment. As a result, most federal firefighters must retire at age 55, despite the provisions of the ADEA. At issue here is the effect of this age limit for federal firefighters on the ADEA’s application to state and local firefighters.

A

Six firefighters brought this action in the District Court for the District of Maryland challenging the city of Baltimore’s municipal code provisions that establish for firefighters and police personnel a mandatory retirement age lower than 70. They claimed that these provisions violate the ADEA. The Equal Employment Opportunity Commission (EEOC) subsequently intervened to support the six plaintiffs.

Until 1962, all Baltimore employees, including firefighters, were covered by the Employees Retirement System (ERS), which provided for mandatory retirement at age 70. App. 4. In 1962, the city established the Fire and Police Employee Retirement System (FPERS), which generally requires that all firefighting personnel below the rank of lieutenant retire at age 55. See FPERS, Baltimore City Code, Art. 22, § 34(a) 1-4 (1983); App. 3. Lieutenants and other higher ranking officers may work until age 65. Ibid. When the FPERS was implemented in 1962, special provision was made for personnel hired before 1962, who were given the option of remaining in the ERS or transferring to the FPERS under a special grandfather provision. Firefighters hired before 1962 who chose to remain in the ERS may continue to work until age 70 even today. See 515 F. Supp. 1287, 1297, n. 10 (Md. 1981). Firefighters hired before 1962 who are covered by the newer FPERS may work until age 60 or, in some limited circumstances, until age 65. Ibid. The plaintiffs here include five firefighters covered by this grandfather clause who are subject to retirement at age 60, and one firefighter hired after 1962, who is subject to retirement at age 55.

The city asserted as an affirmative defense that age is a BFOQ for the position of firefighter and that the mandatory retirement provision therefore was permissible under the ADEA. After a 6-day bench trial, at which each side presented expert and nonexpert testimony on the validity of the BFOQ defense, the District Court held that the city had failed to produce sufficient evidence to make out its BFOQ defense. The court considered both the particular condition of the plaintiff firefighters and the general operation of the Baltimore Fire Department, noting that “historically Baltimore firemen have always worked past [age 60] and even up to age seventy,” 515 F. Supp., at 1297. It then applied the two-pronged test developed by the Court of Appeals for the Fifth Circuit in Usery v. Tamiami Trail Tours, Inc., 531 F. 2d 224 (1976), and adopted by the Fourth Circuit. The trial court concluded that the city had shown neither that “there is a factual basis for [it] to believe that all or substantially all Baltimore City firefighters between the ages of sixty and sixty-five, other than officers, would be unable to perform their job safely and efficiently,” 515 F. Supp., at 1296, nor that “it is impossible or impractical to deal with firefighters between sixty and sixty-five on an individualized basis.” Ibid. The court therefore struck down the city’s mandatory retirement plan for firefighters.

A divided panel of the Court of Appeals for the Fourth Circuit reversed. 731 F. 2d 209 (1984). The majority did not take issue with the District Court’s findings that the city had failed to prove that age was a BFOQ for firefighters. Instead, the court held that the city was entitled to the BFOQ defense as a matter of law. To reach that conclusion, the appellate court relied on language from this Court’s decision in EEOC v. Wyoming, 460 U. S. 226 (1983), in which we upheld the constitutionality of Congress’ extension of the ADEA to state and local governments. In that decision we observed that the ADEA tests a State’s discretion to impose a mandatory retirement age “against a reasonable federal standard.” Id., at 240. The Court of Appeals undertook a “search for a ‘reasonable federal standard’ ” by which to test the asserted BFOQ; it found that standard in the federal civil service statute, 5 U. S. C. § 8335(b), which generally requires federal firefighters to retire at age 55. See n. 3, supra. The court held that, because Congress has selected age 55 as the retirement age for most federal firefighters, as a matter of law the same age constitutes a BFOQ for all state and local firefighters as well. Therefore, the court concluded, the city was not required to make any factual showing at trial as to its need for the mandatory retirement age.

Because this case presents serious questions about the administration of the ADEA, we granted certiorari to review the decision of the Court of Appeals. 469 U. S. 1156 (1985). We now reverse.

B

EEOC v. Wyoming arose out of a lawsuit filed by a Wyoming state game warden who was required under state law to retire at age 55. He brought an action against the State and various of its officials claiming that its mandatory requirement violated the ADEA. The District Court held that the ADEA violated the Tenth Amendment insofar as it regulated Wyoming’s employment relationship with its game wardens and other law enforcement officers and dismissed the suit. In rejecting that argument, we explained that the ADEA did not unduly intrude into the exercise of governmental functions because it did not require employers to retain unfit employees, but only at most to make more individualized determinations about fitness. Moreover, we noted that, in light of the BFOQ defense, States might in fact remain free from the obligation even to make more individualized showings:

“Perhaps more important, appellees remain free under the ADEA to continue to do precisely what they are doing now, if they can demonstrate that age is a ‘bona fide occupational qualification’ for the job of game warden. . . . Thus, . . . even the State’s discretion to achieve its goals in the way it thinks best is not being overridden entirely, but is merely being tested against a reasonable federal standard.” 460 U. S., at 240 (emphasis in original).

We remanded to give Wyoming an opportunity to prove at trial that age 55 was in fact a BFOQ for Wyoming game wardens.

In this case, the Court of Appeals interpreted our use of the term “reasonable federal standard” in the quoted passage to mean that the question whether an age limit for nonfederal employees is permissible under the ADEA may be resolved simply by reference to a federal statute establishing a retirement age for a class of federal employees. It seized on the retirement provisions of the federal civil service statute, which require that federal firefighters retire at age 55. Then, without considering the intent underlying that provision, it held that, as a matter of law, age must therefore be a BFOQ for local firefighters.

The “reasonable federal standard” to which we referred in EEOC v. Wyoming, however, is the standard supplied by the ADEA itself — that is, whether the age limit is a BFOQ. By use of that phrase, we intended only to reaffirm that the BFOQ standard permits an employer to maintain a mandatory retirement age as long as the employer makes the requisite showing that age is a BFOQ. Nothing in the ADEA or our decision in Wyoming warrants the conclusion that a federal rule, not found in the ADEA, and by its terms applicable only to federal employees, necessarily authorizes a state or local government employer to maintain a mandatory retirement age as a matter of law. To make the fact that the Federal Government has imposed a mandatory age limit on its own firefighters automatically dispositive of the question whether the same age limit is appropriate for state and local officers, without in any way examining the provision, would extend the federal rule far beyond its scope. It would apply to state and local employees a statute applicable by its terms only to federal officers. The mere fact that some federal firefighters are required to cease work at age 55 does not provide an absolute defense to an ADEA action challenging state and local age limits for firefighters.

The Court of Appeals in this case failed to focus on the city’s factual showing and instead centered its attention on the federal retirement provisions of the United States Code. We would be remiss, in light of Congress’ indisputable intent to permit deviations from the mandate of the ADEA only in light of a particularized, factual showing, see H. R. Rep. No. 805, 90th Cong., 1st Sess., 7 (1967); Legislative History 80; S. Rep. No. 723, 90th Cong., 1st Sess., 7 (1967); Legislative History 111, to permit nonfederal employers to circumvent this plan by mere citation to an unrelated statutory provision that is not even mentioned in the ADEA.

I — I 1 — I

The city, supported by several amici, argues for affirmance nonetheless. It asserts first that the federal civil service statute is not just a federal retirement provision unrelated to the ADEA but in fact establishes age as a BFOQ for federal firefighters based on factors that properly go into that determination under the ADEA, see Western Air Lines, Inc. v. Criswell, post, p. 400. Second, the city asserts, a congressional finding that age is a BFOQ for a certain occupation is dispositive of that determination with respect to non-federal employees in that occupation. We consider each of these contentions in turn.

A

We must first resolve whether the age-55 retirement for federal firefighters reflects a congressional determination that age 55 is a BFOQ within the meaning of the ADEA, as the city urges, or whether Congress established the mandatory retirement age based on an analysis different from that mandated by the BFOQ standard. On this question, the statute is silent. Section 8335(b), the federal civil service provision, does not by its terms or history evince an intent to cover nonfederal employees, or to limit the scope of the ADEA. Nor does the ADEA, which was passed later, cross-reference the civil service statute or in any way express a congressional desire to exempt any firefighters from the full effect of the Act’s reach. In other words, in the language of neither statute has Congress indicated that the civil service provision reflects anything more than a congressional decision that federal firefighters must retire, as a general matter, at the age of 55.

The history of the civil service provision, however, makes clear that the decision to retire certain federal employees at an early age was not based on BFOQs for the covered employment. This history demonstrates instead that Congress has acted to deal with the idiosyncratic problems of federal employees in the federal civil service. The Federal Government first introduced early retirement for certain employees in 1947 with passage of legislation 'permitting investigatory personnel of the Federal Bureau of Investigation to retire at age 50 at an enhanced annuity. Act of July 11, 1947, ch. 219, 61 Stat. 307. Congress in 1948 extended this program to anyone whose duties for at least 20 years were primarily the investigation, apprehension, or detention of persons suspected or convicted of federal criminal law violations, see Act of July 2, 1948, ch. 807, 62 Stat. 1221. In 1972, this voluntary retirement provision was further extended to federal firefighters. See Act of Aug. 14, 1972, Pub. L. 92-382, 86 Stat. 539.

The provision as initially passed was intended only to give certain employees the option to retire early. It was designed in part as an “added stimulus to morale in the Federal Bureau of Investigation . . . [to] stabilize the service of the Federal Bureau of Investigation into a career service. . . . [and to] act as an incentive to investigative personnel of the [FBI] to remain in the Federal service until a reasonable retirement age is reached.” S. Rep. No. 76, 80th Cong., 1st Sess., 1-2 (1947). In addition, as then Attorney General Tom C. Clark explained, the Department of Justice sought to maintain the FBI “as a ‘young man’s service.’” He added that “men in their 60’s and 70’s, forced to remain in the service, faced with the rigors of arduous service demanded of special agents and others, [should not be] forced to carry on for lack of an adequate retirement plan to fit the needs of the FBI service.” Id., at 2.

In 1974, Congress amended the statute to provide that these same federal employees must retire at age 55 if they had completed 20 years of service, and it provided an enhanced annuity. As with the voluntary retirement scheme, one goal of the 1974 amendment was to maintain “relatively young, vigorous, and effective law enforcement and firefighting workforces.” H. R. Rep. No. 93-463, p. 2 (1973). The amendment also was designed to replace the existing provision, which was having an adverse impact on the quality of older federal employees, because “most of those who retire in their early fifties are the more alert and aggressive employees who have found desirable jobs outside of Government,” id., at 3; in contrast, the newer mandatory scheme would enable management to “retire, without stigma, one who suffers a loss of proficiency.” Retirement for Certain Hazardous Duty Personnel: Hearing on H. R. 6078 and H. R. 9281 before the Subcommittee on Compensation and Employment Benefits of the Senate Committee on Post Office and Civil Service, 93d Cong., 2d Sess., 134 (1974) (testimony of Rep. Brasco, sponsor of House bill).

Congress undoubtedly sought in significant part to maintain a youthful work force and took steps through the civil service retirement provisions to make early retirement both attractive and financially rewarding. However, neither the language of the 1974 amendment nor its legislative history offers any indication why Congress wanted to maintain the image of a “young man’s service,” or why Congress thought that 55 was the proper cutoff age, or whether Congress believed that older employees in fact could not meet the demands of these occupations. Indeed, Congressmen who opposed the bill voiced their concern for the singling out of one group of employees for preferential treatment through enhanced annuities and early retirement, and did not even acknowledge that the exigencies of the job might have anything to do with Congress’ willingness to accord special treatment to a group of employees. H. R. Rep. No. 93-463, supra, at 20. Moreover, the allowance that firefighters who had not yet served for 20 years could remain in their jobs, see id., at 6, along with other exceptions to the general rule of retirement, casts serious doubt on any argument that Congress in fact believed that either the employee or the public would be jeopardized by the employment of older firefighters.

The absence of any indication that Congress established the age limit based on the demands of the occupation raises the possibility that the federal rule is merely “an example of the sort of age stereotyping without factual basis that was one of the primary targets of the reforms of the ADEA,” Brief for Petitioner in No. 84-710, p. 38, and surely belies any contention that the age limit is based on actual occupational qualifications. Without knowing whether Congress passed the statute based on factual support, legislative balancing of competing policy concerns, or stereotypical assumptions, we simply have no way to decipher whether it is consistent with the policies underlying the ADEA.

Congress’ treatment of the civil service provision when it extended the ADEA to federal employees in 1978 conclusively demonstrates that the retirement statute does not represent a congressional determination that age is an occupational qualification for federal firefighters. The decision to retain mandatory retirement provisions for certain federal employees resulted not from a finding that the provisions met the standards of the ADEA, but rather from an agreement to provide to the congressional Committees with jurisdiction over the retirement programs at issue the opportunity to review those provisions. Instead of delaying passage of the ADEA while those Committees studied the mandatory retirement provisions in light of the proposed ADEA, Congress decided to preserve the status quo with respect to the retirement program, pending further study. This express purpose definitively rules out any conclusion that Congress approved the retirement programs in light of the ADEA.

As first reported out of Committee in 1977, the 1978 Amendments to the ADEA removed all age limitations on federal employment, “notwithstanding any other provisions of Federal law relating to mandatory retirement requirements. ...” H. R. 5383, 95th Cong., 1st Sess., 5 (1977); Legislative History 396. Representative Nix, Chairman of the House Post Office and Civil Service Committee, thereafter expressed concern that the “broad general language” of the proposed bill would repeal various statutory provisions within the primary jurisdiction of his Committee. See 123 Cong. Rec. 29003-29004 (1977) (letter to Rep. Perkins, Chairman of the House Committeee on Education and Labor); Legislative History 400-401. He suggested that his colleagues’ desire to expedite consideration of the bill could be accommodated through an amendment eliminating provisions of concern to his Committee. Ibid. This proposal met with approval, see ibid., and accordingly, Representative Spellman offered an amendment, on behalf of the House Post Office and Civil Service Committee, to retain the mandatory retirement provisions applicable to certain specific federal occupations, including law enforcement officials and firefighters. See 123 Cong. Rec. 29002 (1977) (statement of Rep. Hawkins); Legislative History 399. In so doing, Representative Spellman stated:

“I hasten to point out that this amendment does not indicate opposition perse [sic] to elimination of mandatory retirement for air traffic controllers, firefighters, and other specific occupations.
“However, since most of these mandatory retirement provisions are part of the liberalized retirement programs, our committee believes that such provisions should not be repealed until the individual retirement programs have been reexamined.” 123 Cong. Rec. 30556 (1977); Legislative History 415.

Similarly, Representative Pepper, a sponsor of the 1978 Amendments, made clear:

“For the record, Mr. Chairman, I should state what might appear to be obvious: That we in the House, in debating and passing this amendment, are making no judgment whatever on the desirability of retaining the ages now established by the various statutes affected for forced retirement. That judgment, I am sure, will be rendered when the committees involved bring subsequent legislation to the floor.” Ibid.

And again, Representative Hawkins, Chairman of the Subcommittee on Employment Opportunities of the House Committee on Education and Labor, stated that “[t]he sole purpose of this agreement is to afford the committees the opportunity to review these statutes.” Ibid. The mandatory retirement provisions were, accordingly, retained when the 1978 Amendments were enacted. See Pub. L. 95-256, § 5(c), 92 Stat. 191; see also H. R. Conf. Rep. No. 95-950, pp. 10 — 11 (1978); Legislative History 521-522.

In sum, almost four decades of legislative history establish that Congress at no time has indicated that the federal retirement age for federal firefighters is based on a determination that age 55 is a BFOQ within the meaning of the ADEA. Congress adopted what might well have been an arbitrarily designated retirement age in an era not concerned with the pervasive discrimination against the elderly that eventually gave rise to the ADEA. Thereafter, although Congress retained mandatory limitations in 1978, while questioning whether they continued to make good policy sense, it did so for the sake of expediency alone. On considering the language and history of the civil service provision, we find it quite possible that factors other than conclusive determinations of occupational qualifications might originally have led to passage of this federal rule, and that the reason for its retention after 1978 further undercuts any argument that Congress has determined that age is a BFOQ for federal firefighters.

In the absence of an indication that Congress in fact grounded the age limit on occupational qualifications, we will not presume that it did so intend. The myriad political purposes for which Congress might properly make decisions affecting federal employees, and that body’s uncontested authority to exempt federal employees from the requirements of federal regulatory statutes, simply do not permit the conclusion that Congress passed or retained this retirement provision because it reflects BFOQs. We therefore conclude that this civil service provision does not articulate a BFOQ for firefighters, that its presence in the United States Code is not relevant to the question of a BFOQ for firefighters, and that it would be error for a court, faced with a challenge under the ADEA to an age limit for firefighters, to give any weight, much less conclusive weight, to the federal retirement provision.

B

Were there evidence that Congress in fact determined that a class of federal employees must retire early based on the same considerations that support a finding of a BFOQ under the Act, the situation might differ. Of course, if Congress expressly extended the BFOQ to nonfederal occupations, that determination would be dispositive. But if it did not, the federal exemption nevertheless might be relevant to an appropriate employer when deciding whether to impose a mandatory retirement age, and to a district court engaged in reviewing an employer’s BFOQ defense. The evidence Congress has considered, and the conclusions it has drawn therefrom, might be admissible as evidence in judicial proceedings to determine the existence of a BFOQ for non-federal employees. The extent to which these factors are probative would, of course, vary depending at least on the congruity between the federal and nonfederal occupations at issue. Indeed,' the need to consider the actual tasks of the nonfederal employees and the circumstances of employment, in order to determine the extent to which congressional conclusions about federal employees in fact are relevant, would preclude the kind of wholesale reliance on the federal rule that the city suggests. See supra, at 362-363. Because in this case the evidence supports no such finding of congressional intent to establish a BFOQ, however, we decline to speculate on the manner in which a different federal rule might affect nonfederal employment.

f — I H-i J — (

We accordingly reverse the Court of Appeals’ holding that the federal retirement provision at issue in this case provides an absolute defense in an ADEA action. We remand to the Court of Appeals for further proceedings consistent with this opinion.

It is so ordered.

       Federal employees are covered in a separate section of the Act and are treated differently from nonfederal employees in various ways not relevant to this case. See 29 U. S. C. § 633a (extending antidiscrimination provisions to federal employees, but providing such employees a different remedy for violations); § 631 (establishing 70 as a permissible retirement age for all but federal employees, for whom there is no permissible cap). Cf. Vance v. Bradley, 440 U. S. 93 (1979) (lower retirement age for federal employees covered by Foreign Service retirement system does not violate equal protection).

       See Senate Special Committee on Aging, Improving the Age Discrimination Law, 93d Cong., 1st Sess., 14, 17-18 (Comm. Print 1973); EEOC, Legislative History of the Age Discrimination in Employment Act 215, 231, 234-235 (1981) (hereinafter Legislative History).
      The Act contains several minor exemptions not at issue here. See, e. g., 29 U. S. C. §§ 630(f), 631(c)(1). It additionally empowers the Equal Employment Opportunity Commission (EEOC) to determine BFOQs for federal employees, 29 U. S. C. §633a(b), and also to establish general exemptions from the ADEA if it finds them to be reasonable and “necessary and proper in the public interest.” 29 U. S. C. § 628. In 1980, the EEOC examined the desirability of fixing a retirement age for local firefighters and concluded that such an exemption from the ADEA was not warranted. The Commission found that individual assessments of fitness would be feasible and that age alone would be a poor indicator of ability in this occupation. See App. 5-23.

       Title 5 U. S. C. § 8335(b) provides:
      “A law enforcement officer or a firefighter who is otherwise eligible for immediate retirement under section 8336(e) of this title shall be separated from the service on the last day of the month in which he becomes 55 years of age or completes 20 years of service if then over that age. The head of the agency, when in his judgment the public interest so requires, may exempt such an employee from automatic separation under this subsection until that employee becomes 60 years of age. The employing office shall notify the employee in writing of the date of separation at least 60 days in advance thereof. Action to separate the employee is not effective, without the consent of the employee, until the last day of the month in which the 60-day notice expires.”

       The defendants were the Mayor and City Council of Baltimore and the Chairman and members of the Board of Trustees of the Fire and Police Employees Retirement System of the city of Baltimore. We refer to these defendants collectively as the “city.”

       Plaintiffs did not argue that a retirement age of 65 would violate the ADEA but instead essentially sought the same retirement age applicable to lieutenants. The case therefore presented only the question whether mandatory retirement prior to age 65 violates the ADEA.

       The District Court required the city to show (1) that the BFOQ it invokes “ ‘is reasonably necessary to the essence of its business’ of operating an efficient fire department within the City of Baltimore, and (2) that defendants have ‘reasonable cause, i. e., a factual basis for believing that all or substantially all persons within the class . . . would be unable to perform safely and efficiently the duties of the job involved, or that it is impossible or impractical to deal with persons over the age limit on an individualized basis.’” 515 F. Supp., at 1295 (quoting Arritt v. Grisell, 567 F. 2d 1267, 1271 (CA4 1977)).

       Chief Judge Winter dissented. He rejected the panel’s conclusion that the civil service provision necessarily constituted a congressional determination that age 55 is a BFOQ for federal firefighters but asserted that even if it were a BFOQ for federal firefighters, that fact would not excuse the city from proving facts necessary to establish a BFOQ under 29 U. S. C. § 623(f)(1). Concluding that the District Court’s factual findings on the city’s proof were not clearly erroneous, he would have affirmed the District Court.

       To this end, the lower courts have fashioned tests for finding a BFOQ that focus, first, on the individual employer’s need for an age limit, and, second, on the factual basis for his belief that all workers above a certain age are not qualified and on his proof that individual testing is highly impractical. We have today elaborated on the precise standard to be applied. Western Air Lines, Inc. v. Criswell, post, at 412-417.

       Recently, legislation to exempt state and local firefighters and law enforcement officers from the ADEA has been introduced in both the Senate and the House of Representatives. See S. 698, 99th Cong., 1st Sess. (introduced March 20, 1985); H. R. 1435, 99th Cong., 1st Sess. (introduced March 6, 1985).

       Congress, of course, may exempt federal employees from application of the ADEA and otherwise treat federal employees, whose employment relations it may directly supervise, differently from those of other employers, see, e. g., 26 U. S. C. § 3306(c)(6) (unemployment compensation not applicable to federal employees); 29 U. S. C. § 152(2) (exempting federal employees from labor relations legislation); indeed it has done so elsewhere in the ADEA. While Congress at first exempted federal employees from the reach of the Act, it now applies even more protective rules to older federal employees than it imposes on other employers. See 29 U. S. C. §§ 631(a), 631(b) (federal employees generally cannot be forced to retire at any age, while similarly situated nonfederal employees may be forced to retire at age 70). It might be that congressional findings leading to the conclusion that age is a BFOQ for a certain federal occupation would be of relevance to a judicial inquiry into age as a BFOQ for other employers, even absent express congressional direction on this point. See infra. But this relevance derives from a recognition that Congress might already have engaged in the same inquiry that a district court must make, and a district court might find congressionally gathered evidence useful and congressional factfinding persuasive. Contrary to the suggestion of the Court of Appeals, 731 F. 2d 209, 212-213 (CA4 1984), Congress is not always required to treat federal and nonfederal employees in the same way.

       Thereafter, Representative Spellman’s Subcommittee held hearings on the retirement provisions of 5 U. S. C. § 8335(b) and heard testimony on the mandatory provision. Special Retirement Policies for Law Enforcement Officers and Firefighters: Hearings before the Subcommittee on Compensation and Employee Benefits of the House Committee on Post Office and Civil Service, 95th Cong., 1st Sess. (1977); Hearings on H. R. 7945 before the Subcommittee on Compensation and Employee Benefits of the House Committee on Post Office and Civil Service, 95th Cong., 1st Sess. (1977). The Subcommittee also considered a report of the General Accounting Office, which found that “[rjetirement policies that disregard difference in physical abilities and productive capacity are costly and wasteful.” Report to the House Committee on Post Office and Civil Service by the Comptroller General of the United States: Special Retirement Policy for Federal Law Enforcement and Firefighter Personnel Needs Reevaluation 10 (1977). The Subcommittee took no action to change the mandatory rules.
      More recently, Congress has again been confronted with a Report suggesting that mandatory age limits for law enforcement personnel are unnecessary and wasteful. The Report, published by the House Select Committee on Aging, states that “it is impossible to justify mandatory retirement or maximum hiring age policies based on arguments of public safety or job-related performance.” Chairman, House Select Committee on Aging, The Myths and Realities of Age Limits for Law Enforcement and Firefighting Personnel, 98th Cong., 2d Sess., IV (Comm. Print 1984). Legislation also has been introduced in the House to eliminate mandatory retirement for all federal employees not currently covered by the ADEA, including firefighters. H. R. 1710, 99th Cong., 1st Sess. (introduced March 25, 1985).

       Nor do we have any reason to believe that, when the city imposed its mandatory retirement scheme in 1962, it was relying on a congressional determination of any kind. The history of the civil service provision up to that time reveals no congressional finding of an occupational qualification, and in fact in 1962 the congressional scheme remained completely voluntary. It was not until 1974 that Congress even rendered early retirement mandatory. Indeed, the city pointed out to the Court of Appeals that it instituted its mandatory retirement plan “more than a decade before the federal government did likewise.” Answer of Appellant City to Petition for Rehearing with Suggestion for Rehearing en Banc in No. 81-1965 (CA4), pp. 9-10.


source: Caselaw Access Project

author:
Justice Blackmun Chief Justice Burger, Justice Brennan,
      Justice Stevens,

license: Public Domain

text:
    BALDWIN v. ALABAMA
    No. 84-5743.
    Argued March 27, 1985
    Decided June 17, 1985

      Blackmun, J., delivered the opinion of the Court, in which White, Powell, Rehnquist, and O’Connor, JJ., joined. Burger, C. J., filed an opinion concurring in the judgment, post, p. 390. Brennan, J., filed a dissenting opinion, post, p. 392. Stevens, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 393.

      John L. Carroll argued the cause and filed a brief for petitioner.

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

delivered the opinion of the Court.

Between 1976 and 1981, an Alabama statute required a jury that convicted a defendant of any one of a number of specified crimes “with aggravation” to “fix the punishment at death.” Ala. Code § 13-ll-2(a) (1975). The “sentence” imposed by the jury, however, was not dispositive. Instead, “[notwithstanding the fixing of the punishment at death by the jury,” §13-11-4, the trial judge then was to hear evidence of aggravating and mitigating circumstances and, after weighing those circumstances, to sentence the defendant to death or to life imprisonment without parole.

This case concerns the constitutionality of the peculiar and unusual requirement of the 1975 Alabama Act that the jury “shall fix the punishment at death,” even though the trial judge is the actual sentencing authority. The United States Court of Appeals for the Eleventh Circuit ruled that the scheme was facially unconstitutional. Ritter v. Smith, 726 F. 2d 1505, 1515-1517, cert. denied, 469 U. S. 869 (1984). Shortly thereafter, however, the Supreme Court of Alabama, with two dissenting votes, ruled to the contrary in the present case. Ex parte Baldwin, 456 So. 2d 129, 138-139 (1984). We granted certiorari to resolve this significant conflict. 469 U. S. 1085 (1984).

I

A

The facts are sordid, but a brief recital of them must be made. Petitioner Brian Keith Baldwin, then 18 years of age, escaped from a North Carolina prison camp on Saturday, March 12,1977. That evening, he and a fellow escapee, Edward Horsley, came upon 16-year-old Naomi Rolon, who was having trouble with her automobile. The two forcibly took over her car and drove her to Charlotte, N. C. There, both men attempted to rape her, petitioner sodomized her, and the two attempted to choke her to death. They then ran over her with the car, locked her in its trunk, and left her there while they drove through Georgia and Alabama. Twice, when they heard the young woman cry out, they stopped the car, opened the trunk, and stabbed her repeatedly. On Monday afternoon, they stole a pickup truck, drove both vehicles to a secluded spot, and, after again using the car to run over the victim, cut her throat with a hatchet. She died after this 40-hour ordeal.

Petitioner was apprehended the following day driving the stolen truck. He was charged with theft. While in custody, he confessed to the victim’s murder and led the police to her body. He was then indicted for “robbery . . . when the victim is intentionally killed,” a capital offense, § 13-11-2(a)(2), and was tried before a jury in Monroe County. At the close of the evidence regarding guilt or innocence, the judge instructed the jury that if it found the petitioner guilty, “the Legislature of the State of Alabama has said this is a situation [in] which . . . the punishment would be death by electrocution,” Tr. 244-245, and the jury therefore would be required to sentence petitioner to death. Id., at 242. The jury found petitioner guilty, in the terms of the statute, of robbery with the aggravated circumstance of intentionally killing the victim, and returned a verdict form that stated: “We, the Jury, find the defendant guilty as charged in the indictment and fix his punishment at death by electrocution.” App. 4.

B

Under Alabama’s 1975 Death Penalty Act, once a defendant was convicted of any one of 14 specified aggravated offenses, see Ala. Code §13-ll-2(a) (1975), and the jury returned the required death sentence, the trial judge was obligated to hold a sentencing hearing:

“[T]he 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.” § 13-11-3.

The judge was then required to sentence the defendant to death or to life imprisonment without parole:

“Notwithstanding the fixing of the punishment at death by the jury, the court, after weighing the aggravating and mitigating circumstances, may refuse to accept the death penalty as fixed by the jury and sentence the defendant to life imprisonment without parole, which shall be served without parole; or the court, after weighing the aggravating and mitigating circumstances, and the fixing of the punishment at death by the jury, may accordingly sentence the defendant to death.” § 13-11-4.

If the court imposed a death sentence, it was required to set forth in writing the factual findings from the trial and the sentencing hearing, including the aggravating and mitigating circumstances that formed the basis for the sentence. Ibid. The judgment of conviction and sentence of death were subject to automatic review by the Court of Criminal Appeals, and, if that court affirmed, by the Supreme Court of Alabama. §§ 13-11-5, 12-22-150; Ala. Rule App. Proc. 39(c). See Beck v. State, 396 So. 2d 645, 664 (Ala. 1981); Evans v. Britton, 472 F. Supp. 707, 713-714, 723-724 (SD Ala. 1979), rev’d on other grounds, 628 F. 2d 400 (CA5 1980), 639 F. 2d 221 (1981), rev’d sub nom. Hopper v. Evans, 456 U. S. 605 (1982).

C

Following petitioner’s conviction, the trial judge held the sentencing hearing required by § 13-11-3. The State reintroduced the evidence submitted at trial, and introduced petitioner’s juvenile and adult criminal records, as well as Edward Horsley’s statement regarding the crime. Petitioner then took the stand and testified that he had “a hard time growing up”; that he left home at the age of 13 because his father did not like him to come home late at night; that he dropped out of school after the ninth grade; that he made a living by “street hustling”; that he had been arrested approximately 30 times; and that he was a drug addict. App. 8-10. At the conclusion of petitioner’s testimony, the trial judge stated:

“Brian Keith Baldwin, today is the day you have in court to tell this judge whatever is on your mind . . . , now is your time to tell the judge anything that you feel like might be helpful to you in the position that you find yourself in. I want to give you every opportunity in the world that I know about. . . . Anything you feel like you can tell this Judge that will help you in your present position.” Id., at 12.

Petitioner then complained about various aspects of his trial, and concluded: “I ain’t saying I’m guilty but I might be guilty for murder but I ain’t guilty for robbery down here. That’s all I got to say.” Id., at 13.

The judge stated that “having considered the evidence presented at the trial and at said sentence hearing,” id., at 17-18, the court found the following aggravating circumstances: the capital offense was committed while petitioner was under a sentence of imprisonment in the State of North Carolina from which he had escaped; petitioner previously had pleaded guilty to a felony involving the use of violence to the person; the capital offense was committed while petitioner was committing a robbery or in flight after the robbery; and the offense was especially heinous, atrocious, or cruel. The judge found that petitioner’s age — 18 at the time of the crime — was the only mitigating circumstance. Id., at 18. He then stated:

“The Court having considered the aggravating circumstances and the mitigating circumstances and after weighing the aggravating and mitigating circumstances, it is the judgment of the Court that the aggravating circumstances far outweigh the mitigating circumstances and that the death penalty as fixed by the jury should be and is hereby accepted.” Ibid.

The Supreme Court of Alabama eventually affirmed the conviction and sentence. 456 So. 2d 129 (1984). In his argument to that court, petitioner contended that the 1975 Act was facially invalid. Tracking the reasoning of the Eleventh Circuit in Ritter v. Smith, 726 F. 2d, at 1516-1517, he argued that the jury’s mandatory sentence was unconstitutional because it was unguided, standardless, and reflected no consideration of the particular defendant or crime, and that the judge’s sentence was unconstitutional because it was based in part upon consideration of the impermissible jury sentence and was infected by it. The court rejected petitioner’s arguments, holding that even though the jury had no discretion regarding the “sentence” it would impose, the sentencing procedure was saved by the fact that it was the trial judge who was the true sentencing authority, and he considered aggravating and mitigating circumstances before imposing sentence. 456 So. 2d, at 139.

I — I I — I

If the jury’s “sentence” were indeed the dispositive sentence, the Alabama scheme would be unconstitutional under the principles announced in Woodson v. North Carolina, 428 U. S. 280 (1976) (plurality opinion), and Roberts (Stanislaus) v. Louisiana, 428 U. S. 325 (1976) (plurality opinion). See also Roberts (Harry) v. Louisiana, 431 U. S. 633 (1977). In Woodson, the Court held that North Carolina’s sentencing scheme, which imposed a mandatory death sentence for a broad category of homicidal offenses, violated the Eighth and Fourteenth Amendments in three respects. First, such mandatory schemes offend contemporary standards of decency, as evidenced by the frequency with which jurors avoid the imposition of mandatory death sentences by disregarding their oaths and refusing to convict, and by the consistent movement of the States and Congress away from such schemes. 428 U. S., at 288-301. Second, by refusing to convict defendants who the jurors think do not deserve the death penalty, juries exercise unguided and unchecked discretion regarding who will be sentenced to death. Id., at 302-303. Third, such mandatory schemes fail to allow particularized consideration of the character and record of the defendant and the circumstances of the offense. Id., at 303-305. Alabama’s requirement that the jury impose a mandatory sentence for a wide range of homicides, standing alone, would suffer each of those defects.

The jury’s mandatory “sentence,” however, does not stand alone under the Alabama scheme. Instead, as has been described above, the trial judge thereafter conducts a separate hearing to receive evidence of aggravating and mitigating circumstances, and determines whether the aggravating circumstances outweigh the mitigating circumstances. The judge’s discretion is guided by the requirement that the death penalty be imposed only if the judge finds the aggravating circumstance that serves to define the capital crime — in this case the fact that the homicide took place during the commission of a robbery — and only if the judge finds that the definitional aggravating circumstance, plus any other specified aggravating circumstance, outweighs any statutory and nonstatutory mitigating circumstances. § 13-11-4. Petitioner accordingly does not argue that the judge’s discretion under § 13-11-4 is not “suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action,” Gregg v. Georgia, 428 U. S. 153, 189 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). Nor is there any issue before this Court that the 1975 Act did not allow “the type of individualized consideration of mitigating factors” by the sentencing judge that has been held constitutionally indispensable in capital cases. Lockett v. Ohio, 438 U. S. 586, 606 (1978) (plurality opinion); see also Eddings v. Oklahoma, 455 U. S. 104 (1982); Woodson v. North Carolina, 428 U. S., at 304 (plurality opinion).

Petitioner’s challenge to the Alabama scheme rests instead on the provision of the 1975 Act that allows the judge to weigh “the aggravating and mitigating circumstances, and the fixing of the punishment at death by the jury” in determining whether death is the appropriate sentence. §13-11-4. This Court has stated that a death sentence based upon consideration of “factors that are constitutionally impermissible or totally irrelevant to the sentencing process, such as for example the race, religion, or political affiliation of the defendant,” would violate the Constitution. Zant v. Stephens, 462 U. S. 862, 885 (1983). Relying upon Zant, petitioner contends that, because the jury’s mandatory “sentence” would be unconstitutional standing alone, it is an impermissible factor for the trial judge to consider, as the statute appears to require, in the sentencing process. That argument conceivably might have merit if the judge actually were required to consider the jury’s “sentence” as a recommendation as to the sentence the jury believed would be appropriate, cf. Proffitt v. Florida, 428 U. S. 242 (1976), and if the judge were obligated to accord some deference to it. The jury’s verdict is not considered in that fashion, however, as the Alabama appellate courts’ construction of the Act, as well as the judge’s statements regarding the process by which he arrived at the sentence, so definitely indicates.

A

The language of § 13-11-4, to be sure, in so many words does not preclude the sentencing judge from considering the jury’s “sentence” in determining whether the death penalty is appropriate. The first clause of the section — “the court, after weighing the aggravating and mitigating circumstances, may refuse to accept the death penalty as fixed by the jury and sentence the defendant to life imprisonment without parole” — does not authorize or require the court to weigh the jury’s “sentence” in determining whether to refuse to impose the death penalty. The second clause — “or the court, after weighing the aggravating and mitigating circumstances, and the fixing of the punishment at death by the jury, may accordingly sentence the defendant to death”— does seem to authorize consideration of the jury’s “sentence.” It is not clear whether the second clause allows consideration of the jury’s “sentence” only if the weighing of the aggravating and mitigating circumstances authorized in the first clause has indicated that the “sentence” should not be rejected, or whether the second clause allows the judge to ignore the first clause and count the jury’s “sentence” as a factor, similar to an aggravating circumstance, weighing in favor of the death penalty. We therefore look to the Alabama courts’ construction of § 13-11-4. See Proffitt v. Florida, supra; Jurek v. Texas, 428 U. S. 262, 272-273 (1976) (opinion of Stewart, Powell, and Stevens, JJ.).

The Alabama appellate courts have interpreted the 1975 Act expressly to mean that the sentencing judge is to impose a sentence without regard to the jury’s mandatory “sentence.” The Alabama Court of Criminal Appeals has stated: “The jury’s function is only to find guilt or innocence. The jury is not the sentencing authority.” Jacobs v. State, 361 So. 2d 607, 631 (1977), aff’d, 361 So. 2d 640 (Ala. 1978), cert. denied, 439 U. S. 1122 (1979). Indeed, the court has gone so far as to state:

“No sentence exists until the pronouncement by the trial judge at the conclusion of the sentence hearing. It is for this reason the court cannot be said to be commuting a sentence of death imposed by the jury, but, in truth and in fact, it is sentencing the accused after a jury’s finding of guilt.” Beck v. State, 365 So. 2d 985, 1005, aff’d, 365 So. 2d 1006 (Ala. 1978), rev’d on other grounds, 447 U. S. 625 (1980).

The court further has described the judge’s role as follows:

“The sentencing hearing is one of the most important and critical stages under Alabama’s death penalty law. The guilt stage has passed. Now an experienced trial judge must consider the particularized circumstances surrounding the offense and the offender and determine if the accused is to die or be sentenced to life imprisonment without parole. . . . The trial evidence must be reviewed to determine all of the aggravating circumstances leading up to and culminating in the death of the victim and then all the mitigating circumstances must be considered in determining if any outweigh the aggravating circumstances so found in the trial court’s findings of fact.” Richardson v. State, 376 So. 2d 205, 224 (1978), aff’d, 376 So. 2d. 228 (Ala. 1979).

Conspicuously absent from the court’s description of the judge’s duty is any mention of according weight or deference to the jury’s “sentence.”

The Supreme Court of Alabama agrees that “the jury is not the sentencing authority in . . . Alabama,” and has described the sentencing judge not as a reviewer of the jury’s “sentence,” but as the sentencer:

“In Alabama, the jury is not the body which finally determines which murderers must die and which must not. In fact, Alabama’s statute mandatorily requires the court to ‘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,’ and specifically provides that the court may refuse to accept the death penalty as fixed by the jury and may ‘sentence’ the defendant to death or life without parole. Code of Ala. 1975, § 13-11-4. That section provides that if the court imposes a ‘sentence of death’ it must set forth, in writing, the basis for the sentence.” Jacobs v. State, 361 So. 2d, at 644 (emphasis in original; footnote omitted).

See also Ritter v. State, 429 So. 2d 928, 935-936 (Ala. 1983); Beck v. State, 396 So. 2d, at 659.

B

In this case, moreover, it is clear that the sentencing judge did not interpret the statute as requiring him to consider the jury’s “sentence,” because he never described the “sentence” as a factor in his deliberations. After the jury returned its verdict, the trial judge informed petitioner:

“Let me say this: The jury has found you guilty of the crime of robbery with the aggravated circumstances of intentionally killing the victim . . . and set your punishment at death by electrocution but the law of this state provides first that there will be an additional hearing in this case at which time the Court will consider aggravating circumstances, extenuating and all other circumstances, concerning the commission of this particular offense” (emphasis added). Tr. 249.

In addition, in imposing the sentence, the judge stated:

“The Court having considered the aggravating circumstances and the mitigating circumstances and after weighing the aggravating and mitigating circumstances, it is the judgment of the Court that the aggravating circumstances far outweigh the mitigating circumstances and that the death penalty as fixed by the jury should be and is hereby accepted” (emphasis added). App. 18.

None of these statements indicates that the judge considered the jury’s verdict to be a factor that he added, or that he was required to add, to the scale in determining the appropriateness of the death penalty, or that he believed the jury’s verdict was entitled to a presumption of correctness. The judge, of course, knew the Alabama system and all that it signified, knew that the jury’s “sentence” was mandatory, and knew that it did not reflect consideration of any mitigating circumstance. The judge logically, therefore, would not have thought that he owed any deference to the jury’s “sentence” on the issue whether the death penalty was appropriate for petitioner.

Ill

Petitioner contends, nevertheless, that a judge’s decision to impose the death penalty must be swayed by the fact that the jury returned a “sentence” of death. He points to this Court’s opinion in Beck v. Alabama, 447 U. S. 625, 645 (1980), which expressed some skepticism about the influence the jury’s “sentence” would have on a judge. Beck held unconstitutional the provision of the 1975 Act that precluded the jury from considering lesser included noncapital offenses. The Court reasoned that the provision violated due process, because where the jury’s only choices were to convict a defendant of the capital offense and “sentence” him to death, or to acquit him, but the evidence would have supported a lesser included offense verdict, the factfinding process was tainted with irrelevant considerations. On the one hand, the Court reasoned, the unavailability of the option of convicting on a lesser included offense may encourage the jury to convict the defendant of a capital crime because it believes 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 the jury to acquit because it believes the defendant does not deserve the death penalty. The unavailability of the lesser included offense option, when it is warranted by the evidence, thus “intro-ducéis] a level of uncertainty and unreliability into the fact-finding process that cannot be tolerated in a capital case.” Id., at 642-643.

In so holding, this Court rejected Alabama’s argument that, even if the unavailability of a lesser included offense led a jury erroneously to convict a defendant, the fact that the judge was the true sentencer would ensure that the defendant was not improperly sentenced to death. It reasoned:

“[I]t 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.” Id., at 645-646 (footnote omitted).

This Court’s concern in Beck was that the judge would be inclined to accept the jury’s factual finding that the defendant was guilty of a capital offense, not that the judge would be influenced by the jury’s “sentence” of death. To “correct” an erroneous guilty verdict, the sentencing judge would have to determine that death was an inappropriate punishment, not because mitigating circumstances outweighed aggravating circumstances, but because the defendant had not been proved guilty beyond a reasonable doubt. Obviously, a judge will think hard about the jury’s guilty verdict before basing a sentence on the belief that the defendant was not proved guilty of the capital offense. Indeed, the judge should think hard before rejecting the guilty verdict, because the determination of guilt is properly within the province of the jury, and the jury heard the same evidence regarding guilt as the judge.

It does not follow, however, that the judge will be swayed to impose a sentence of death merely because the jury returned a mandatory death “sentence,” when it had no opportunity to consider mitigating circumstances. The judge knows that determination of the appropriate sentence is not within the jury’s province, and that the jury does not consider evidence in mitigation in arriving at its “sentence.” The jury’s “sentence” means only that the jury found the defendant guilty of a capital crime — that is, that it found the fact of intentional killing in the course of a robbery — and that if the judge finds that the aggravating circumstances outweigh the mitigating circumstances, the judge is authorized to impose a sentence of death. The “sentence” thus conveys nothing more than the verdict of guilty, when it is read in conjunction with the provisions of the 1975 Act making the offense a capital crime, would convey. It defies logic to assume that a judge will be swayed to impose the death penalty by a “sentence” that has so little meaning. Despite its misdescribed label, it is not a sentence of death.

Petitioner also argues that the requirement that the jury return a “sentence” of death “blurs” the issue of guilt with the issue whether death is the appropriate punishment, and may cause the jury arbitrarily to nullify the mandatory death penalty by acquitting a defendant who is proved guilty, but who the jury, without any guidance, finds undeserving of the death penalty. Petitioner’s argument stems from Wood-son, where the plurality opinion noted that American juries “persistently” have refused to convict “a significant portion” of those charged with first-degree murder in order to avoid mandatory death-penalty statutes, and expressed concern that the unguided exercise of the power to nullify a mandatory sentence would lead to the same “wanton” and “arbitrary” imposition of the death penalty that troubled the Court in Furman. 428 U. S., at 302-303. The Alabama scheme, however, has not resulted in such arbitrariness. Juries deliberating under the 1975 statute did not act to nullify the mandatory “sentence” by refusing to convict in a significant number of cases; indeed, only 2 of the first 50 defendants tried for capital crimes during the time the 1975 Act was in effect were acquitted. See Beck v. Alabama, 447 U. S., at 641, n. 18. Thus, while the specter of a mandatory death sentence may have made juries more prone to acquit, thereby benefiting the two defendants acquitted, it did not render Alabama’s scheme unconstitutionally arbitrary.

> I — I

The wisdom and phraseology of Alabama’s curious 1975 statute surely are open to question, as Alabama’s abandonment of the statutory scheme in 1981 perhaps indicates. This Court has made clear, however, that “we are unwilling to say that there is any one right way for a State to set up its capital-sentencing scheme.” Spaziano v. Florida, 468 U. S. 447, 464 (1984). See also Zant v. Stephens, 462 U. S., at 884; Gregg v. Georgia, 428 U. S., at 195 (opinion of Stewart, Powell, and Stevens, JJ.). Alabama’s requirement that the jury return a “sentence” of death along with its guilty verdict, while unusual, did not render unconstitutional the death sentence the trial judge imposed after independently considering petitioner’s background and character and the circumstances of his crime.

The judgment of the Supreme Court of Alabama is affirmed.

It is so ordered.

Chief Justice Burger,

concurring in the judgment.

It seems to me that the Court evades the constitutional issue presented, see ante, at 386, n. 8, and resolves this case on the basis of a construction of state law (a) that is inconsistent with the relevant state statute, (b) that does not appear in the opinion of the Alabama Supreme Court in this or any other case, and (c) that was not asserted by the State in its arguments before this Court.

The statute at issue states:

“Notwithstanding the fixing of punishment at death by the jury, the court, after weighing the aggravating and mitigating circumstances, may refuse to accept the death penalty as fixed by the jury and sentence the defendant to life imprisonment without parole, which shall be served without parole; or the court, after weighing the aggravating and mitigating circumstances, and the fixing of the punishment at death by the jury, may accordingly sentence the defendant to death.” Ala. Code § 13-11-4 (1975) (emphasis added).

The statutory language, particularly the italicized portions, clearly contemplates that a trial judge sentencing a capital defendant is to consider the jury’s “fixing of the punishment at death” along with the aggravating and mitigating circumstances. But according to the Court’s opinion, the statute is ambiguous as to whether the judge must consider the jury’s “sentence” in all cases or only in cases where he has decided that the death penalty may be appropriate. See ante, at 383. Even if the Court is correct on this point, the ambiguity is irrelevant in every case, including this one, in which the trial judge does in fact impose the death sentence.

Given the clear import of the statutory language, it is difficult to see any reason to depart from the statute, absent an equally clear contrary statement by a state court. Throughout its discussion of Alabama case law, however, the Court simply draws inferences from omissions. No Alabama decision holds affirmatively that the trial judge is not to consider the jury’s “sentence.” The passages quoted by the Court, see ante, at 383-385, establish only that the judge, not the jury, is the sentencing authority. This proposition is not inconsistent with the judge’s having to consider the jury’s “sentence” in the sentencing process.

The opinion of the Alabama Supreme Court does not support the Court’s construction of Alabama law. Indeed, the Supreme Court’s opinion quotes the statement of the Court of Appeals for the Eleventh Circuit that “ ‘the statute [§ 13-11-4] requires the judge to weigh the mandatory death sentence factor in the balance with his consideration of aggravating and mitigating circumstances in deciding to impose the death penalty.’” Ex parte Baldwin, 456 So. 2d 129, 138 (Ala. 1984) (quoting Ritter v. Smith, 726 F. 2d 1505, 1516 (CA11 1984)); accord, 456 So. 2d, at 141 (Jones, J., concurring in part and dissenting in part). The Alabama court did not refute this construction of the statute; instead, it upheld the statute on the grounds that the jury’s “sentence” was not binding on the trial judge and that the statute required the trial judge to consider the circumstances of the particular offense and the character and propensities of the offender. There is no inconsistency between this reasoning and the sentencing judge’s having to consider the jury’s conclusion along with the other relevant factors.

If state law were as clear as the Court suggests, one would expect the State’s otherwise thorough brief to include some support for the Court’s view of Alabama law. According to the petitioner, the “very flaw which kills the statute” is that it requires the trial judge to consider the jury’s “sentence” “as a factor in the sentencing process.” Brief for Petitioner 13. In the face of this contention, it seems that if “[t]he Alabama appellate courts have interpreted the 1975 Act expressly to mean that the sentencing judge is to impose a sentence without regard to the jury’s mandatory ‘sentence/ ” ante, at 383 (emphasis added), the State would have mentioned that fact in its arguments here. It did not.

The Court should decide whether the 1975 Alabama statute is unconstitutional because it requires the trial judge to consider the jury’s “sentence” in determining the sentence actually to be imposed. In my view the statute passes constitutional muster.

The 1975 statutory scheme limits capital offenses to murders involving statutorily specified aggravating circumstances. Because each capital offense already includes an aggravating circumstance in the definition of the offense, the jury’s mandatory death “sentence” reflects the jury’s determination that the State has proved the defined aggravating circumstance beyond a reasonable doubt. Because the trial judge must weigh that circumstance along with the other aggravating circumstances and the mitigating circumstances, Ex parte Kyzer, 399 So. 2d 330, 338 (Ala. 1981), it makes complete sense for the judge to take into account the jury’s finding on that issue. The statute requires no more in having the trial judge take into account the jury’s “sentence” in the process of weighing the aggravating and mitigating circumstances.

Justice Brennan,

dissenting.

I adhere to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227 (1976) (Brennan, J., dissenting), and would therefore vacate the petitioner Brian Keith Baldwin’s death sentence in any event. But even if I thought otherwise, I would vacate Baldwin’s death sentence imposed pursuant to Ala. Code §§ 13-ll-2(a) and 13-11-4 (1975) for the reasons set forth in Justice Stevens’ dissent, which I join.

Justice Stevens,

with whom Justice Brennan and Justice Marshall join,

dissenting.

Under a unique statutory provision, since repealed, the jury that convicted Brian Keith Baldwin of aggravated murder was required to “fix [his] punishment at death.” Ala. Code § 13-ll-2(a) (1975). The trial judge was permitted either to “refuse to accept” the jury’s death penalty or to sentence Baldwin to death “after weighing the aggravating and mitigating circumstances, and the fixing of the punishment at death by the jury.” § 13-11-4. In this case, the judge decided that “the death penalty as fixed by the jury should be and hereby is accepted.” App. 18.

In my dissenting opinion in Spaziano v. Florida, 468 U. S. 447, 467 (1984), I explained at some length why the jury, as the spokesman for the community, plays a critical role in the process of deciding whether to impose the death penalty on a defendant convicted of a capital offense. It is my view that no death sentence is constitutionally valid unless it has the sanction of a jury. Even if I did not hold that view, however, I could not accept the Court’s conclusion that a “mis-described” jury sentence of death does not infect a judge’s subsequent decision to “accept” that sentence. Ante, at 388.

As the Court demonstrates, it would be patently unconstitutional to uphold the death sentence in this case if the jury’s mandatory capital verdict were dispositive. Ante, at 379-380. In my view, it is also unconstitutional to present an elected trial judge who might otherwise regard the arguments for and against a death sentence as equally balanced with the burden of rejecting a jury verdict of this kind before he can impose a sentence of life.

One reason that we have condemned mandatory jury death sentences in the past is that they are unintelligible. When a jury that convicts a defendant of the crime charged must impose a sentence of death, there is no assurance that its sentence represents the jury’s belief that death is the “just and appropriate sentence.” Woodson v. North Carolina, 428 U. S. 280, 304 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). For when the jury has followed proper instructions, conviction should mean nothing more than that the jury believed the defendant guilty beyond a reasonable doubt; unless the jury is willing to violate a sworn oath and nullify the evidence, the death sentence is automatic. See Beck v. Alabama, 447 U. S. 625, 642, 644 (1980). Of course, even though the verdict is automatic, the jury might believe that the defendant should die. But even if the jury did intend the consequent death sentence in some sense, it did so with “no guidance whatsoever,” id., at 640, and without the “particularized consideration” of relevant factors that the Constitution requires in capital cases. Woodson, supra, at 303; see Roberts v. Louisiana, 428 U. S. 325, 333-336 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). Thus a mandatory jury death sentence cannot be said to represent the sort of considered community judgment the Court has approved in the past. See Jurek v. Texas, 428 U. S. 262, 271-275 (1976) (opinion of Stewart, Powell, and Stevens, JJ.); Witherspoon v. Illinois, 391 U. S. 510, 519 (1968). Instead, such a mandatory sentence is so “uncertain] and unreliable]” that it “cannot be tolerated in a capital case.” Beck, supra, at 643.

The arbitrariness and uncertainty of the message conveyed by a mandatory jury death sentence makes such a sentence a constitutionally impermissible factor in a sentencing judge’s deliberations. Rather than representing the considered judgment of the community based on consideration of all relevant information concerning the particular offense and defendant at bar, such a sentence represents at best the jury’s unguided and arbitrary judgment regarding the proper sentence, and at worst merely an unwillingness to set a violent criminal free even though the jury would not have imposed death had it had any discretion. Because the sentencing judge cannot possibly know what meaning, if any, a mandatory jury death sentence conveys, such a sentence is “totally irrelevant to the sentencing process.” Zant v. Stephens, 462 U. S. 862, 885 (1983). In my view, due process of law requires that any death sentence based even in part on such a factor be set aside. Ibid.

The record in this case plainly indicates that the jury’s sentence was, in fact, on the mind of the judge that sentenced Baldwin in 1977. When the judge scheduled Baldwin’s sentencing hearing, he noted that “the jury has ... set your punishment at death by electrocution, but. . . first” he would hold a hearing to consider “all. . . circumstances.” 2 Record 249 (emphasis added). His subsequent decision to sentence Baldwin to death was delivered not without reference to the jury’s sentence, but rather in terms of “accepting]” the death penalty “as fixed by the jury.” App. 18. Theoretical speculation regarding what the judge “logically” should have concluded regarding the jury’s sentence, ante, at 385, is insufficient to overcome the obvious consideration demonstrated by the judge’s repeated references to the jury’s sentence. We do not know how the sentence weighed in the judge’s deliberations, but not even the most careful parsing of words can support a conclusion that he did not “conside[r]” it at all. Ibid.

Moreover, it is unrealistic to maintain that such a sentence from the jury does not enter the mind of the sentencing judge. When the Court examined this same sentencing provision in 1980, seven Justices agreed that “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.” Beck v. Alabama, 447 U. S., at 645. Today, three Justices have changed their view, and the Court now maintains that “[i]t defies logic to assume that a judge will be swayed to impose the death penalty” by a jury sentence of death that was mandatory. Ante, at 388. I cannot so easily change my appraisal of human nature. Judges in Alabama, as in many States, are elected. Ala. Const., Amdt. No. 328, § 6.13. They are not insulated from community pressure; indeed, responsiveness and accountability to the community provide the justification for an elected judiciary. Although a judge may understand that a mandatory jury sentence of death is, in some sense, meaningless (but see n. 2, swpra), the community probably does not. A jury sentence of death is likely to be reported and understood as a real sentence of death, as it was in this case.

Whether it “logically” need be so or not, ante, at 385, 388, the plain fact is that a judge who later decides to sentence to life in such circumstances is publicly perceived to have rejected the jury’s sentence; indeed, the terms of the statute itself embody that perception. The pressures on a judge that inevitably result should not be ignored. In my view, only the Court’s distance from the realities of an elected state trial bench can explain its declaration that, as a matter of fact, a jury’s mandatory sentence of death will not enter the judge’s mind when he considers whether to “refuse” or “accept” the jury’s sentence.

Baldwin’s argument is not that a capital sentencing judge may never consider the views of a jury as to the appropriate sentence. The Court has approved a capital sentencing system in which a judge ultimately determines the appropriate punishment after receiving an advisory sentence from a fully informed and properly instructed jury. Proffitt v. Florida, 428 U. S. 242 (1976). But when the jury’s sentence is mandatory — as it is here — it does not represent the jury’s view of an “appropriate” sentence based on full information and the exercise of guided discretion. Rather than providing a sentencing judge with some arguably helpful information about the community’s view, such a sentence is either misleading or, at best, irrelevant to the capital sentencing decision.

The statutory provision at issue has been repealed and is unlikely ever to be replicated. Nevertheless, 10 persons remain to be executed under its command. Because capital punishment is the most extreme and uniquely irreversible expression of societal condemnation, I continue to believe that “[i]t 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, 358 (1977) (opinion of Stevens, J.) (emphasis added); accord, Barefoot v. Estelle, 463 U. S. 880, 938 (1983) (Blackmun, J., dissenting). A mandatory jury death sentence serves only to mislead the public and to complicate the task of the sentencing judge with confusing signals and irrelevant pressures. Because I believe the Constitution prohibits such influences in capital cases, I respectfully dissent.

       The originating statute was 1975 Ala. Acts, No. 213, effective March 7, 1976. Act No. 213 was enacted in response to this Court’s decision in Furman v. Georgia, 408 U. S. 238 (1972), and revised the State’s death-penalty statutes. Chapter 11 of Title 13 of the Alabama Code, as it thereafter stood, was repealed in its entirety and replaced by new death-penalty provisions set forth in 1981 Ala. Acts, No. 81-178, effective July 1, 1981. The repeal did not moot the present case because petitioner’s offense was committed and his sentence was imposed in 1977 while the 1975 Act was in effect. See 1981 Ala. Acts, §§19 and 20, codified as Ala. Code, § 13A-5-57 (1982).

       Our own research has disclosed no other death-penalty statute currently in effect that requires the jury to return a death “sentence,” but then has the judge make the actual sentencing decision. Indeed, as is noted herein, Alabama has changed its death-penalty scheme and no longer has the requirement.

       The sentencing judge found, as an additional aggravating factor, that petitioner had been adjudged delinquent in juvenile proceedings after being charged with kidnaping and rape. The Alabama Court of Criminal Appeals ruled that the delinquency adjudication was not valid as an aggravating circumstance, but held that the judge’s consideration of it was harmless error. 456 So. 2d 117, 125-128 (1983), aff’d, 456 So. 2d 129 (Ala. 1984). That issue was not raised in the petition for certiorari here, and we have no reason to consider it.

       Petitioner’s conviction and sentence were affirmed initially by the Alabama Court of Criminal Appeals, 372 So. 2d 26 (1978), and by the Supreme Court of Alabama, 372 So. 2d 32 (1979). This Court, however, 448 U. S. 903 (1980), vacated and remanded the case for reconsideration in the light of Beck v. Alabama, 447 U. S. 625 (1980), which held unconstitutional a clause in Alabama’s 1975 Act that precluded the jury from considering lesser included noncapital offenses. On remand, the Court of Criminal Appeals reversed the judgment of conviction on the basis of Beck. 405 So. 2d 699 (1981). After this Court ruled that due process requires a lesser included offense instruction only when warranted by the evidence, Hopper v. Evans, 456 U. S. 605 (1982), the Court of Criminal Appeals granted rehearing, rescinded its earlier reversal, and reaffirmed petitioner’s conviction and sentence. 456 So. 2d 117 (1983). The Supreme Court of Alabama affirmed that decision, 456 So. 2d 129 (1984), and it is that judgment which we now review.

       The Court of Criminal Appeals, as has been noted in the text, must review the decision of a trial court that imposes the death penalty, § 12-22-150, and if that court affirms the sentence, certiorari review by the Supreme Court of Alabama is automatic. Ala. Rule App. Proc. 39(c). Both appellate courts “review . . . the aggravating and mitigating circumstances found in the case by the trial judge” and independently weigh those circumstances to determine whether the imposition of a death sentence is appropriate. Jacobs v. State, 361 So. 2d 640, 647 (Ala. 1978) (Torbert, C. J., concurring in part and dissenting in part), cert. denied, 439 U. S. 1122 (1979); see also Beck v. State, 396 So. 2d. 645, 664 (Ala. 1981). In reviewing petitioner’s sentence, neither appellate court gave any indication of including the jury’s “sentence” in the weighing. In describing its review of petitioner’s sentence, the Court of Criminal Appeals stated:
      “We have reviewed the aggravating and mitigating circumstances set out in the record and the trial court’s findings relative to those circumstances. . . . After review of the hearing on aggravating and mitigating circumstances, we find no error on the part of the trial court in reaching the conclusion that the aggravating circumstances far outweigh the mitigating circumstances in this case. The sentence fits the crime.” 372 So. 2d, at 32.
      Upon reaffirming petitioner’s conviction in light of Hopper v. Evans, 456 U. S. 605 (1982), the Court of Criminal Appeals again noted its obligation to weigh independently the aggravating and mitigating circumstances, and found that petitioner’s death sentence was appropriate. 456 So. 2d, at 128. The State Supreme Court also found that the “aggravating circumstances greatly outweighed the mitigating circumstances.” 456 So. 2d, at 140.

       See § 13-11-6. The 1975 Act required the judge to weigh aggravating circumstances specified in §13-11-6 against mitigating circumstances. The Alabama courts interpreted the Act, however, to require the judge to find the presence of the § 13-ll-2(a) definitional aggravating circumstance (in other words, to agree with the jury’s finding that the defendant is guilty of the offense charged in the indictment) before weighing any § 13-11-6 aggravating circumstances against mitigating circumstances. Ex parte Kyzer, 399 So. 2d 330 (Ala. 1981). Generally, the definitional aggravating circumstances of § 13-ll-2(a) have counterparts in § 13-11-6. Where there is no counterpart, the judge must find the definitional aggravating circumstance or no death sentence can be imposed, even though § 13-11-6 aggravating circumstances outweigh mitigating circumstances. 399 So. 2d, at 337.

       In his statement of facts, petitioner asserts that the sentencing judge limited his consideration of mitigating circumstances to those specified by § 13-11-7, in violation of Lockett v. Ohio, 438 U. S. 586 (1978) (plurality opinion). That issue was not addressed by the Supreme Court of Alabama in the decision under review, and was not raised in the petition for certio-rari. We have no reason to consider the issue here. We note, however, that in its first review of petitioner’s sentence, the Court of Criminal Appeals held that petitioner “was' given the opportunity to present any mitigating circumstance” (emphasis supplied), and that the 1975 Act did not preclude consideration of any aspect of petitioner’s character or of the circumstances of the offense. 372 So. 2d, at 32. We already have noted that the sentencing judge asked petitioner to “tell the judge anything that you feel like might be helpful to you in the position that you find yourself in.” App. 12. Petitioner’s counsel three times asked petitioner while he was on the stand if there was “anything else you would like for the judge to know or to be able to tell him at this point?” Id., at 10-11. Finally, at the conclusion of petitioner’s testimony, the judge asked petitioner’s counsel if he had “anything else that you might be able to offer in the way of mitigating circumstances.” Id., at 14.

       We express no view regarding the constitutionality of a death sentence imposed by a judge who did consider the jury’s verdict in this Alabama statutory structure as a factor that weighed in favor of the imposition of the death penalty.

       Following this Court’s decisions in Beck v. Alabama, 447 U. S. 625 (1980), and Hopper v. Evans, 456 U. S. 605 (1982), the Supreme Court of Alabama held that in a capital case in which the jury is instructed regarding a lesser included noncapital offense
      “the requirement in § 13-ll-2(a), that the jury ‘shall fix the punishment at death’ [is construed] to be permissive and to mean that the jury cannot fix punishment at death until it takes into account the circumstances of the offense together with the character and propensity of the offender, under sentencing procedures which will miminize the risk of an arbitrary and capricious imposition of the death penalty” (emphasis in original). Beck v. State, 396 So. 2d, at 660.
      The Alabama Legislature then repealed the 1975 Act, and replaced it with a trifurcated proceeding in which the jury first determines guilt or innocence, and, if it returns a guilty verdict, hears evidence concerning aggravation and mitigation. On the basis of that evidence, the jury issues an advisory sentence. If the verdict is for death, that sentence is not binding on the trial judge, who then is required to hold another hearing regarding aggravating and mitigating circumstances before determining the actual sentence. Ala. Code §§ 13A-5-39 to 13A-5-59 (1982).

       The same is true of the statements of the trial judge in this case. See ante, at 385-386.

       “Because it is the one punishment that cannot be prescribed by a rule of law as judges normally understand such rules, but rather is ultimately understood only as an expression of the community’s outrage — its sense that an individual has lost his moral entitlement to live — I am convinced that the danger of an excessive response can only be avoided if the decision to impose the death penalty is made by a jury rather than by a single governmental official. This conviction is consistent with the judgment of history and the current consensus of opinion that juries are better equipped than judges to make capital sentencing decisions. The basic explanation for that consensus lies in the fact that the question whether a sentence of death is excessive in the particular circumstances of any case is one that must be answered by the decisionmaker that is best able to ‘express the conscience of the community on the ultimate question of life or death.’ Witherspoon v. Illinois, 391 U. S. 510, 519 (1968) (footnote omitted).” 468 U. S., at 468-470 (footnotes omitted).

       “ ‘[M]ost, 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 Beck v. Alabama, 447 U. S., at 642, quoting Jacobs v. State, 361 So. 2d 640, 652 (Ala. 1978) (Shores, J., dissenting), cert. denied, 439 U. S. 1122 (1979). In this case, Baldwin’s jury was told that death was the mandatory sentence upon conviction. 1 Record 20 (“This is a capital crime under the law of this state and the punishment upon conviction is death by electrocution. There are no lesser included offenses”). The jury was not informed that the judge could later refuse its death sentence. See 2 id,., at 237-247, 298-303; Beck, supra, at 639, n. 15. The jury’s subsequent verdict stated: “We, the Jury, find the defendant guilty as charged in the indictment, and fix his punishment at death by electrocution.” App. 4. Given these facts, I cannot agree with the Court’s view that the jury’s sentence necessarily “conveys nothing more than the verdict of guilty.” Ante, at 388. It may or it may not. The unavoidable uncertainty of the message is one reason such a sentence creates constitutional difficulties.

       Justice Jones of the Alabama Supreme Court relied on similar reasoning to make a slightly different nonconstitutional point in his dissent from affirmance of Baldwin’s death sentence:
      “In my opinion, [the Court’s result] overlooks the statutory scheme . . . that gives the jury a vital role in the sentencing process. It may well be that, under the United States Supreme Court’s guidelines for administering the death penalty, the [Alabama] statutory scheme would meet federal constitutional muster if the jury’s role in the sentencing process had been omitted altogether (assuming, of course, that the statute prescribes an appropriate bifurcated sentencing hearing before the trial judge). But it was not omitted ....
      “Obviously, the legislature, in retaining the jury’s role in the two-step sentencing process, intended for the trial judge, as the final sentencing authority, to have the benefit of the community’s input as expressed in the jury’s ‘recommendation’ of sentence. That legislative will — as a due process requisite — is thwarted where the jury is legally bound to ‘recommend’ only the death penalty.” Ex parte Baldwin, 456 So. 2d 129, 141-142 (1984) (concurring in part and dissenting in part) (emphasis in original).

       Cf. Eddings v. Oklahoma, 455 U. S. 104, 112-114 (1982) (considering record evidence of judge’s actual application of Oklahoma capital sentencing law).

       See, e. g., P. Dubois, From Ballot to Bench: Judicial Elections and the Quest for Accountability 3, 29, 145 (1980); Sheldon & Lovrich, Judicial Accountability vs. Responsibility: Balancing the Views of Voters and Judges, 65 Judicature 470, 471 (1982).

       The day after the jury rendered its verdict, the two major newspapers in Alabama reported the result as “[Baldwin] gets death,” The Birmingham News, Aug. 10,1977, p. 2 and “[Baldwin] Gets Death Penalty,” The Montgomery Advertiser, Aug. 10, 1977, p. 15.

       We approvingly quoted Justice Jones of the Supreme Court of Alabama to this effect in Beck, 447 U. S., at 645, n. 22, after noting that “it is fair to infer that the jury verdict will ordinarily be followed by the judge,” id., at 645.
      “[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.” Jacobs v. State, 361 So. 2d, at 650-651.
      See also Spaziano v. Florida, 468 U. S., at 475, n. 14 (Stevens, J., dissenting) (“if the jury recommends death, an elected Florida judge sensitive to community sentiment would have an additional reason to follow that recommendation”); Ritter v. Smith, 568 F. Supp. 1499, 1521 (SD Ala. 1983) (the identical claim to Baldwin’s “appears to be substantial. The automatic death penalty, combined with the inclusion of that penalty in the actual sentencing formula and the sentencing judge’s position with respect to the public, might in some circumstances prejudice a defendant where the sentencing decision presented a close case”).

       Alabama argues that the mandatory jury verdict is really only a procedural mechanism by which the legislature conveys to the sentencing judge its legislative judgment that death presumptively should be the punishment when the definitional facts of capital murder are proved. Aside from the fact that there is no evidence that the legislature actually so intended the mandatory verdict, the implausibility of the legislature choosing such a clumsy means to achieve the suggested end argues against this pendente lite interpretation. The Alabama Supreme Court has suggested instead that this mandatory scheme was merely the legislature’s response to this Court’s somewhat confusing signals in Furman v. Georgia, 408 U. S. 238 (1972). See Ritter v. State, 429 So. 2d 928, 934 (Ala. 1983).
      In any case, such a purpose would not save this scheme from invalidation, given the arbitrariness inherent in the means. Because every jury in this situation knows that death is the mandatory sentence and has the option of acquittal, the legislature’s message will be conveyed only at the whim of any particular jury. Thus, whether or not such a legislative message would be constitutional standing alone, the constitutional procedural flaw of “unguided and unchecked jury discretion” condemned in Woodson v. North Carolina, 428 U. S. 280, 302 (1976) (opinion of Stewart, Powell, and Stevens, JJ.), is not removed by the State’s theory.