U.S. Supreme Court Beck v. Alabama, 447
U.S. 625 (1980) Beck v. Alabama No. 78-6621 Argued February 20,
1980 Decided June 20, 1980 447
U.S. 625 CERTIORARI TO THE SUPREME COURT OF
ALABAMA Syllabus Under Alabama law, felony murder is a lesser included offense of
the capital crime of robbery-intentional killing. Under the Alabama
death penalty statute, the trial judge is prohibited from giving
the jury the option of convicting the defendant of the lesser
included offense; instead, the jury must either convict the
defendant of the capital crime, in which case it must impose the
death penalty, or acquit him. If the defendant is convicted, the
trial judge must hold a hearing to consider aggravating and
mitigating circumstances, and may then refuse to impose the death
sentence and instead sentence the defendant to life imprisonment.
Petitioner was convicted of robbery-intentional killing, and the
jury accordingly imposed the death sentence, which the Alabama
trial court refused to overturn. At petitioner's trial, his own
testimony established his participation in the robbery, but he
denied killing, or any intent to kill, the victim. Because of the
statutory prohibition, the trial court did not instruct the jury as
to the lesser included offense of felony murder. The Alabama
appellate courts upheld the conviction and death sentence,
rejecting petitioner's constitutional attack on the statutory
prohibition on lesser included offense instructions. Held: The death sentence may not constitutionally be
imposed after a jury verdict of guilt of a capital offense where
the jury was not permitted to consider a verdict of guilt of a
lesser included offense. Pp. 447 U. S.
633 -646.

															(a) Providing the jury with the "third option" of convicting on
a lesser included offense ensures that the jury will accord the
defendant the full benefit of the reasonable doubt standard. This
procedural safeguard is especially important in cases such as this
one. For when the evidence establishes that the defendant is guilty
of a serious, violent offense but leaves some doubt as to an
element justifying conviction of a capital offense, the failure to
give the jury such a "third option" inevitably enhances the risk of
an unwarranted conviction. Such a risk cannot be tolerated in a
case in which the defendant's life is at stake. Pp. 447 U. S.
633 -638.

															(b) Alabama's argument that, in the context of an apparently
mandatory death penalty statute, the preclusion of lesser included
offense instructions heightens, rather than diminishes, the
reliability of the guilt determination, must be rejected. The
unavailability of lesser included Page 447 U. S. 626 offense instructions and the apparently mandatory nature of the
death penalty both interject irrelevant considerations into the
factfinding process, diverting the jury's attention from the
central issue of whether the State has satisfied its burden of
proving beyond a reasonable doubt that the defendant is guilty of a
capital crime. Thus, on the one hand, the unavailability of the
"third option" may encourage the jury to convict for an
impermissible reason -- its belief that the defendant is guilty of
some serious crime and should be punished. On the other hand, the
apparently mandatory nature of the death penalty may encourage the
jury to acquit for an equally impermissible reason -- that,
whatever his crime, the defendant does not deserve death. While, in
any particular case, these two extraneous factors may favor the
defendant or the prosecution or may cancel each other out, in every
case, they introduce a level of uncertainty and unreliability into
the factfinding process that cannot be tolerated in a capital case.
Pp. 447 U. S.
638 -643.

															(c) The jury's "option" of refusing to return any verdict at
all, thus causing a mistrial, is not an adequate substitute for
proper instructions on lesser included offenses. Nor does the fact
that the trial judge has the ultimate sentencing power compensate
for the risk that the jury may return an improper verdict because
of the unavailability of the "third option." If the jury finds the
defendant guilty only of a lesser included offense, the judge would
not have the opportunity to impose the death sentence. Moreover,
the jury's verdict must have a tendency to motivate the judge to
impose the same sentence that the jury did. Under these
circumstances, it cannot be presumed that a post-trial hearing will
always correct whatever mistakes occurred in the performance of the
jury's factfinding function. Pp. 447 U. S.
643 -646. 365 So.
2d 1006 , reversed.

															STEVENS, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, STEWART, BLACKMUN, and POWELL, JJ.,
joined. BRENNAN, J., filed a concurring opinion, post, p. 447 U. S. 646 .
MARSHALL, J., filed an opinion concurring in the judgment, post, p. 447 U. S. 646 .
REHNQUIST, J., filed a dissenting opinion, in which WHITE, J.,
joined, post, p. 447 U. S.
646 . Page 447 U. S. 627 MR. JUSTICE STEVENS delivered the opinion of the Court.

															We granted certiorari to decide the following question:

															"May a sentence of death constitutionally be imposed after a
jury verdict of guilt of a capital offense when the jury was not
permitted to consider a verdict of guilt of a lesser included
noncapital offense, and when the evidence would have supported such
a verdict?"

															444 U.S. 897. We now hold that the death penalty may not be
imposed under these circumstances.

															Petitioner was tried for the capital offense of "[r]obbery or
attempts thereof when the victim is intentionally killed by the
defendant." [ Footnote 1 ] Under
the Alabama death penalty statute, Page 447 U. S. 628 the requisite intent to kill may not be supplied by the felony
murder doctrine. [ Footnote 2 ]
Felony murder is thus a lesser included offense of the capital
crime of robbery-intentional killing. However, under the statute,
the judge is specifically prohibited from giving the jury the
option of convicting the defendant of a lesser included offense.
[ Footnote 3 ] Instead, the jury
is given the Page 447 U. S. 629 choice of either convicting the defendant of the capital crime,
in which case it is required to impose the death penalty, or
acquitting him, thus allowing him to escape all penalties for his
alleged participation in the crime. If the defendant is convicted
and the death penalty imposed, the trial judge must then hold a
hearing with respect to aggravating and mitigating circumstances;
after hearing the evidence, the judge may refuse to impose the
death penalty, sentencing the defendant to life imprisonment
without possibility of parole. [ Footnote 4 ]

															In this case, petitioner's own testimony established his
participation in the robbery of an 80-year-old man named Roy
Malone. Petitioner consistently denied, however, that he killed the
man or that he intended his death. Under petitioner's version of
the events, he and an accomplice entered Page 447 U. S. 630 their victim's home in the afternoon, and, after petitioner had
seized the man intending to bind him with a rope, his accomplice
unexpectedly struck and killed him. As the State has conceded,
absent the statutory prohibition on such instructions, this
testimony would have entitled petitioner to a lesser included
offense instruction on felony murder as a matter of state law.
[ Footnote 5 ]

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

															In the courts below, petitioner attacked the prohibition on
lesser included offense instructions in capital cases, arguing that
the Alabama statute was constitutionally indistinguishable from the
mandatory death penalty statutes struck down in Woodson v.
North Carolina, 428 U. S. 280 , and Roberts v. Louisiana, 428 U. S. 325 .
[ Footnote 6 ] The Alabama Court
of Criminal Page 447 U. S. 631 Appeals rejected this argument on the ground that the jury's
only function under the Alabama statute is to determine guilt or
innocence, and that the death sentence it is required Page 447 U. S. 632 to impose after a finding of guilt is merely advisory. [ Footnote 7 ] In a brief opinion denying
review, the Alabama Supreme Court also rejected petitioner's
arguments, citing Jacobs v. State, 361 So. 2d
640 (Ala.1978), cert. denied, 439 U.S. 1122, in which
it had upheld the constitutionality of the Alabama death penalty
statute against a similar challenge. 365 So.
2d 1006 , 1007 (1978).

															In this Court, petitioner contends that the prohibition on
giving lesser included offense instructions in capital cases
violates both the Eighth Amendment as made applicable to the States
by the Fourteenth Amendment and the Due Process Clause of the
Fourteenth Amendment by substantially increasing the risk of error
in the factfinding process. Petitioner argues that, in a case in
which the evidence clearly establishes the defendant's guilt of a
serious noncapital crime such as felony murder, forcing the jury to
choose between conviction on the capital offense and acquittal
creates a danger that it will resolve any doubts in favor of
conviction. [ Footnote 8 ] Page 447 U. S. 633 In response, Alabama argues that the preclusion of lesser
included offense instructions does not impair the reliability of
the factfinding process or prejudice the defendant in any way.
Rather, it argues that the apparently mandatory death penalty will
make the jury more prone to acquit in a doubtful case, and that the
jury's ability to force a mistrial by refusing to return a verdict
acts as a viable third option in a case in which the jury has
doubts but is nevertheless unwilling to acquit. The State also
contends that prohibiting lesser included offense instructions is a
reasonable way of assuring that the death penalty is not imposed
arbitrarily and capriciously as a result of compromise verdicts.
Finally, it argues that any error in the imposition of the death
penalty by the jury can be cured by the judge after a hearing on
aggravating and mitigating circumstances. I At common law, the jury was permitted to find the defendant
guilty of any lesser offense necessarily included in the offense
charged. [ Footnote 9 ] This rule
originally developed as an aid to the prosecution in cases in which
the proof failed to establish some element of the crime charged. See 2 C. Wright, Federal Practice and Procedure § 515, n.
54 (1969). But it has long been recognized that it can also be
beneficial to the defendant because it affords the jury a less
drastic alternative than the choice between conviction of the
offense charged and acquittal. As MR. JUSTICE BRENNAN explained in
his opinion Page 447 U. S. 634 for the Court in Keeble v. United States, 412 U.
S. 205 , 412 U. S. 208 ,
providing the jury with the "third option" of convicting on a
lesser included offense ensures that the jury will accord the
defendant the full benefit of the reasonable doubt standard:

															"Moreover, it is no answer to petitioner's demand for a jury
instruction on a lesser offense to argue that a defendant may be
better off without such an instruction. True, if the prosecution
has not established beyond a reasonable doubt every element of the
offense charged, and if no lesser offense instruction is offered,
the jury must, as a theoretical matter, return a verdict of
acquittal. But a defendant is entitled to a lesser offense
instruction -- in this context or any other -- precisely because he
should not be exposed to the substantial risk that the jury's
practice will diverge from theory. Where one of the elements of the
offense charged remains in doubt, but the defendant is plainly
guilty of some offense, the jury is likely to resolve its
doubts in favor of conviction. In the case before us, for example,
an intent to commit serious bodily injury is a necessary element of
the crime with which petitioner was charged, but not of the crime
of simple assault. Since the nature of petitioner's intent was very
much in dispute at trial, the jury could rationally have convicted
him of simple assault if that option had been presented. But the
jury was presented with only two options: convicting the defendant
of assault with intent to commit great bodily injury or acquitting
him outright. We cannot say that the availability of a third option
-- convicting the defendant of simple assault -- could not have
resulted in a different verdict. Indeed, while we have never
explicitly held that the Due Process Clause of the Fifth Amendment
guarantees the right of a defendant to have the jury instructed on
a lesser included offense, it is nevertheless clear that a
construction of the Major Crimes Act to preclude such an Page 447 U. S. 635 instruction would raise difficult constitutional questions." Id. at 412 U. S.
212 -213 (emphasis in original).

															Alabama's failure to afford capital defendants the protection
provided by lesser included offense instructions is unique in
American criminal law. [ Footnote
10 ] In the federal courts, it has long been

															"beyond dispute that the defendant is entitled to an instruction
on a lesser included offense if the evidence would permit a jury
rationally to find him guilty of the lesser offense and acquit him
of the greater." Keeble v. United States, supra, at 412 U. S. 208 .
[ Footnote 11 ] Similarly, the
state courts that have addressed Page 447 U. S. 636 the issue have unanimously held that a defendant is entitled to
a lesser included offense instruction where the evidence warrants
it. [ Footnote 12 ] Indeed,
for all noncapital crimes, Page 447 U. S. 637 Alabama itself gives the defendant a right to such instructions
under appropriate circumstances. See n 5, supra. While we have never held that a defendant is entitled to a
lesser included offense instruction as a matter of due process, the
nearly universal acceptance of the rule in both state and federal
courts establishes the value to the defendant of this procedural
safeguard. That safeguard would seem to be especially important in
a case such as this. For when the evidence unquestionably
establishes that the defendant is guilty of a serious, violent
offense -- but leaves some doubt with respect to an element that
would justify conviction of a capital offense -- the failure to
give the jury the "third option" of convicting on a lesser included
offense would seem inevitably to enhance the risk of an unwarranted
conviction.

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

															"[D]eath is a different kind of punishment from any other which
may be imposed in this country. . . . From the point of view of the
defendant, it is different in both its severity and its finality.
From the point of view of society, the action of the sovereign in
taking the life of one of its citizens also differs dramatically
from any other legitimate state action. It is of vital importance
to the defendant and to the community that any decision to impose
the death sentence be, and appear to be, based on Page 447 U. S. 638 reason, rather than caprice or emotion." Gardner v. Florida, 430 U. S. 349 , 430 U. S.
357 -358 (opinion of STEVENS, J.). To insure that the
death penalty is indeed imposed on the basis of "reason, rather
than caprice or emotion," we have invalidated procedural rules that
tended to diminish the reliability of the sentencing determination.
[ Footnote 13 ] The same
reasoning must apply to rules that diminish the reliability of the
guilt determination. Thus, if the unavailability of a lesser
included offense instruction enhances the risk of an unwarranted
conviction, Alabama is constitutionally prohibited from withdrawing
that option from the jury in a capital case. [ Footnote 14 ] II Alabama argues, however, that petitioner's factual premise is
wrong and that, in the context of an apparently mandatory Page 447 U. S. 639 death penalty statute, the preclusion of lesser included offense
instructions heightens, rather than diminishes, the reliability of
the guilt determination. The State argues that, because the jury is
led to believe that a death sentence will automatically follow a
finding of guilt, [ Footnote
15 ] it it will be more likely to acquit than to convict
whenever it has anything approaching a reasonable doubt. In support
of this theory, the State relies on the historical data described
in Woodson v. North Carolina, 428 U.S. at 428 U. S. 293 (opinion of STEWART, POWELL, and STEVENS, JJ.), which indicated
that American juries have traditionally been so reluctant to impose
the death penalty that they have

															"with some regularity, disregarded their oaths and refused to
convict defendants where a death sentence was the automatic
consequence of a guilty verdict."

															The State's argument is based on a misreading of our cases
striking down mandatory death penalties. In Furman v.
Georgia, 408 U. S. 238 , the
Court held unconstitutional a Georgia statute that vested the jury
with complete and unguided discretion to impose the death penalty
or not as it saw fit, on the ground that such a procedure led to
the "wanton" and "freakish" imposition of the penalty. Id. at 408 U. S. 310 (STEWART, J., concurring). In response to Furman. several
States enacted statutes that purported to withdraw any and all
discretion from the jury with respect to the punishment decision by
making the death penalty automatic on a finding of guilt. But, as
the prevailing opinion noted in Woodson v. North Carolina, in so doing, the States "simply papered over the problem of
unguided and unchecked jury discretion." 428 U.S. at 428 U. S. 302 (opinion of STEWART, POWELL, and STEVENS, JJ.). For, as historical
evidence indicated, juries faced with a mandatory death penalty
statute often Page 447 U. S. 640 created their own sentencing discretion by distorting the
factfinding process, acquitting even a clearly guilty defendant if
they felt he did not deserve to die for his crime. Because the jury
was given no guidance whatsoever for determining when it should
exercise this de facto sentencing power, the mandatory
death statutes raised the same possibility that the death penalty
would be imposed in an arbitrary and capricious manner as the
statute held invalid in Furman. [ Footnote 16 ]

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

															In Jacobs v. State, 361 So. 2d
640 (Ala.1978), cert. denied, 439 U.S. 1122, Chief
Justice Torbert attempted to distinguish the Alabama death statute
from the North Carolina and Louisiana statutes on the ground that
the unavailability of lesser included offense instructions
substantially reduces the risk of jury nullification. Thus, because
of their reluctance to acquit a defendant who is obviously guilty
of some serious crime, juries will be unlikely to disregard their
oaths and acquit a defendant who is guilty of a capital crime
simply because of their abhorrence of the death penalty. Page 447 U. S. 641 However, because the death penalty is mandatory, the State
argues that the jury will be especially careful to accord the
defendant the full benefit of the reasonable doubt standard. In the
State's view, the end result is a perfect balance between competing
emotional pressures that ensures the defendant a reliable
procedure, while at the same time reducing the possibility of
arbitrary and capricious guilt determinations. [ Footnote 17 ]

															The State's theory, however, is supported by nothing more than
speculation. The 96 conviction rate achieved by prosecutors under
the Alabama statute hardly supports the notion that the statute
creates such a perfect equipoise. [ Footnote 18 ] Page 447 U. S. 642 Moreover, it seems unlikely that many jurors would react in the
theoretically perfect way the State suggests. As Justice Shores
stated in dissent in Jacobs v. State, supra, at
651-652:

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

															In the final analysis, the difficulty with the Alabama statute
is that it interjects irrelevant considerations into the
factfinding process, diverting the jury's attention from the
central issue of whether the State has satisfied its burden of
proving beyond a reasonable doubt that the defendant is guilty of a
capital crime. Thus, on the one hand, the unavailability of the
third option of convicting on a lesser included offense may
encourage the jury to convict for an impermissible reason -- its
belief that the defendant is guilty of some serious crime and
should be punished. On the other hand, the apparently mandatory
nature of the death penalty may encourage it to Page 447 U. S. 643 acquit for an equally impermissible reason -- that, whatever his
crime, the defendant does not deserve death. [ Footnote 19 ] In any particular case, these two
extraneous factors may favor the defendant or the prosecution, or
they may cancel each other out. But in every case they introduce a
level of uncertainty and unreliability into the factfinding process
that cannot be tolerated in a capital case. III The State also argues that, whatever the effect of precluding
lesser included offense instructions might otherwise be, there is
no possibility of harm under the Alabama statute because of two
additional safeguards. First, although the jury may not convict the
defendant of a lesser included offense, the State argues that it
may refuse to return any verdict at all in a doubtful case, thus
creating a mistrial. After a mistrial, the State may reindict on
the capital offense or on lesser included offenses. [ Footnote 20 ] In this case, the jury was
instructed Page 447 U. S. 644 that a mistrial would be declared if it was unable to agree on a
verdict or if it was unable to agree on fixing the death penalty;
it was also told that, in the event of a mistrial, the defendant
could be tried again. Record 743.

															We are not persuaded by the State's argument that the mistrial
"option" is an adequate substitute for proper instructions on
lesser included offenses. It is extremely doubtful that juries will
understand the full implications of a mistrial [ Footnote 21 ] or will have any confidence
that their choice of the mistrial option will ultimately lead to
the right result. Thus, they could have no assurance that a second
trial would end in the conviction of the defendant on a lesser
included offense. Moreover, invoking the mistrial option in a case
in which the jury agrees that the defendant is guilty of some
offense, though not the offense charged, would require the jurors
to violate their oaths to acquit in a proper case -- contrary to
the State's assertions that juries should not be expected to make
such lawless choices. Finally, the fact that lesser included
offense instructions have traditionally been given in noncapital
cases despite the availability of the mistrial "option" Page 447 U. S. 645 indicates that such instructions provide a necessary additional
measure of protection for the defendant.

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

															If a fully instructed jury would find the defendant guilty only
of a lesser, noncapital offense, the judge would not have the
opportunity to impose the death sentence. Moreover, it is manifest
that the jury's verdict must have a tendency to motivate the judge
to impose the same sentence that the jury did. Indeed, according to
statistics submitted by the State's Attorney General, it is fair to
infer that the jury verdict will ordinarily be followed by the
judge even though he must hold a separate hearing in aggravation
and mitigation before he imposes sentence. [ Footnote 22 ] Under these circumstances, we are
unwilling to presume that a post-trial hearing will always
correct Page 447 U. S. 646 whatever mistakes have occurred in the performance of the jury's
factfinding function.

															Accordingly, the judgment of the Alabama Supreme Court is Reversed. [ Footnote 1 ]

															There are 14 capital offenses under the Alabama statute,
Ala.Code §§ 13-11-2(a)(1)-(14) (1975):

															"(1) Kidnapping for ransom or attempts thereof, when the victim
is intentionally killed by the defendant;"

															"(2) Robbery or attempts thereof when the victim is
intentionally killed by the defendant;"

															"(3) Rape when the victim is intentionally killed by the
defendant; carnal knowledge of a girl under 12 years of age, or
abuse of such girl in an attempt to have carnal knowledge, when the
victim is intentionally killed by the defendant;"

															"(4) Nighttime burglary of an occupied dwelling when any of the
occupants is intentionally killed by the defendant;"

															"(5) The murder of any police officer, sheriff, deputy, state
trooper or peace officer of any kind, or prison or jail guard while
such prison or jail guard is on duty or because of some official or
job-related act or performance of such officer or guard;"

															"(6) Any murder committed while the defendant is under sentence
of life imprisonment;"

															"(7) Murder in the first degree when the killing was done for a
pecuniary or other valuable consideration or pursuant to a contract
or for hire;"

															"(8) Indecent molestation of, or an attempt to indecently
molest, a child under the age of 16 years, when the child victim is
intentionally killed by the defendant;"

															"(9) Willful setting off or exploding dynamite or other
explosive under circumstances now punishable by section 13-2-60 or
13-2-61, when a person is intentionally killed by the defendant
because of said explosion;"

															"(10) Murder in the first degree wherein two or more human
beings are intentionally killed by the defendant by one or a series
of acts;"

															"(11) Murder in the first degree where the victim is a public
official or public figure and the murder stems from or is caused by
or related to his official position, acts or capacity;"

															"(12) Murder in the first degree committed while the defendant
is engaged or participating in the act of unlawfully assuming
control of any aircraft by use of threats or force with intent to
obtain any valuable consideration for the release of said aircraft
or any passenger or crewman thereon, or to direct the route or
movement of said aircraft, or otherwise exert control over said
aircraft;"

															"(13) Any murder committed by a defendant who has been convicted
of murder in the first or second degree in the 20 years preceding
the crime; or"

															"(14) Murder when perpetrated against any witness subpoenaed to
testify at any preliminary hearing, trial or grand jury proceeding
against the defendant who kills or procures the killing of witness,
or when perpetrated against any human being while intending to kill
such witness."

															[ Footnote 2 ]

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

															[ Footnote 3 ]

															Alabama Code § 13-11-2(a) (1975) provides:

															"If the jury finds the defendant guilty, it shall fix the
punishment at death when the defendant is charged by indictment
with any of the following offenses and with aggravation, which must
also be averred in the indictment, and which offenses so charged
with said aggravation shall not include any lesser offenses."

															The last phrase of this subsection has been consistently
construed to preclude any lesser included offense instructions in
capital cases. See Jacobs v. State, 361 So. 2d
640 , 646 (Ala.1978) (Torbert, C.J., concurring in part and
dissenting in part), cert. denied, 439 U.S. 1122; Evans v. Birtton, 472 F.
Supp. 707 , 714 (SD Ala.1979).

															[ Footnote 4 ]

															Alabama Code § 13-11-3 (1975) provides:

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

															[ Footnote 5 ]

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

															[ Footnote 6 ]

															In the trial court, petitioner's counsel argued that telling the
jury that "you have got a choice of two things, either you can
sentence him to die or you can acquit him" unconstitutionally
interfered with its factfinding role and made the statute an
unconstitutional mandatory death penalty. Record 40. In the Alabama
Court of Criminal Appeals, the court described petitioner's
argument with respect to the constitutionality of the Alabama death
penalty statute as follows:

															"The trial jury cannot be instructed on lesser included
offenses."

															"In the absence of such a provision, the appellant insists that
the only choice that a petit jury has is imposing death or
acquitting the defendant. He states that, because only those two
choices are presented to the jury, the statute can only be
interpreted as having a mandatory death provision."

															365 So. 2d 985, 999 (1978).

															In his petition for certiorari to the Alabama Supreme Court,
petitioner specifically stated that he was challenging the Alabama
statute as being in violation of the Eighth, Sixth, and Fourteenth
Amendments to the United States Constitution, and argued that it is
"in fact a mandatory death sentence." However, petitioner did not
explore these issues more fully in his brief to the Alabama Supreme
Court, Tr. of Oral Arg. 5, and, in its one-paragraph opinion
affirming the judgment of the Alabama Court of Criminal Appeals,
the Supreme Court adverted only to the state constitutional issues
petitioner had raised.

															In his dissenting opinion, MR. JUSTICE REHNQUIST takes the
position that we are required to construe the Alabama Supreme
Court's failure to address petitioner's federal constitutional
claims as a determination that petitioner had waived those claims.
We disagree. It is clear that petitioner did present his federal
claims in some fashion to the Alabama Supreme Court. The State has
never argued that this presentation was insufficient, as a matter
of state law, to preserve the issue. On the contrary, in its brief
in opposition to the petition for certiorari, the State argued that
"the Alabama Appellate Courts have reviewed these matters raised in
the petition, fully considered them and correctly decided the
issues." Similarly, after certiorari was granted, the State again
did not argue that petitioner's due process and Eighth Amendment
claims were not properly raised or preserved below.

															While the parties, of course, cannot confer jurisdiction on this
Court by agreement, we should not simply brush aside the Alabama
Attorney General's view of his own State's law. Cf. Chambers v.
Mississippi, 410 U. S. 284 , 410 U. S. 290 ,
n. 3. That is especially true in a case such as this, where the
death penalty was imposed in a plainly unconstitutional manner. Cf. Vachon v. New Hampshire, 414 U.
S. 478 .

															[ Footnote 7 ]

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

															[ Footnote 8 ]

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

															[ Footnote 9 ]

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

															[ Footnote 10 ]

															Mississippi's post- Furman death penalty statute also
contained a prohibition on charging lesser included offenses. In Jackson v. State, 337 So. 2d
1242 , 1255 (1976), the Mississippi Supreme Court struck down
this part of the statute on the ground that it

															"constitutes an impediment to full and complete administration
of justice in the trial of capital cases, and is therefore not
binding on the courts. . . ."

															While warning that lesser included offense instructions should
not be given "indiscriminately or automatically," the court held
that they should continue to be given when "warranted by the
evidence."

															[ Footnote 11 ]

															This principle was first announced in Stevenson v. United
States, 162 U. S. 313 , 162 U. S.
323 :

															"A judge may be entirely satisfied from the whole evidence in
the case that the person doing the killing was actuated by malice;
that he was not in any such passion as to lower the grade of the
crime from murder to manslaughter by reason of any absence of
malice; and yet if there be any evidence fairly tending to bear
upon the issue of manslaughter, it is the province of the jury to
determine from all the evidence what the condition of mind was, and
to say whether the crime was murder or manslaughter." See also Berra v. United States, 351 U.
S. 131 , 351 U. S. 134 ,
where Mr. Justice Harlan indicated that the defendant's entitlement
to such an instruction could not be doubted:

															"In a case where some of the elements of the crime charged
themselves constitute a lesser crime, the defendant, if the
evidence justified it, would no doubt be entitled to an instruction
which would permit a finding of guilt of the lesser offense. See Stevenson v. United States, 162 U. S.
313 ."

															Rule 31(c) of the Federal Rules of Criminal Procedure provides
that "[t]he defendant may be found guilty of an offense necessarily
included in the offense charged. . . ." Although the Rule is
permissively phrased, it has been universally interpreted as
granting a defendant a right to a requested lesser included offense
instruction if the evidence warrants it. See, e.g., United
States v. Scharf, 558 F.2d 498, 502 (CA8 1977); United
States v. Crutchfield, 547 F.2d 496, 500 (CA9 1977); Government of Virgin Islands v. Carmona, 422 F.2d 95, 100
(CA3 1970); 2 C. Wright, Federal Practice and Procedure § 515, n.
57 (1969).

															[ Footnote 12 ]

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

															[ Footnote 13 ] See Gardner v. Florida, 430 U.
S. 349 (opinion of STEVENS, J.); Lockett v.
Ohio, 438 U. S. 586 . In Lockett, THE CHIEF JUSTICE explained the rationale for
requiring more reliable procedures in capital sentencing
determinations:

															"There is no perfect procedure for deciding in which cases
governmental authority should be used to impose death. But a
statute that prevents the sentencer in all capital cases from
giving independent mitigating weight to aspects of the defendant's
character and record and to circumstances of the offense proffered
in mitigation creates the risk that the death penalty will be
imposed in spite of factors which may call for a less severe
penalty. When the choice is between life and death, that risk is
unacceptable, and incompatible with the commands of the Eighth and
Fourteenth Amendments." Id. at 438 U. S. 605 . See also Woodson v. North Carolina, 428 U.
S. 280 , 428 U. S. 305 (opinion of STEWART, POWELL, and STEVENS, JJ.):

															"Death, in its finality, differs more from life imprisonment
than a 100-year prison term differs from one of only a year or two.
Because of that qualitative difference, there is a corresponding
difference in the need for reliability in the determination that
death is the appropriate punishment in a specific case."

															[ Footnote 14 ]

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

															[ Footnote 15 ]

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

															[ Footnote 16 ]

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

															[ Footnote 17 ]

															In Gregg v. Georgia, 428 U. S. 153 , 428 U. S. 199 (opinion of STEWART, POWELL, and STEVENS, JJ.), the prevailing
opinion specifically rejected the argument that the new Georgia
statute was unconstitutional because the availability of lesser
included offense instructions made it possible that a jury might
erroneously remove a defendant from consideration as a candidate
for the death penalty. Under a statute like Georgia's, where guilt
is determined separately from punishment, there is little risk that
the jury will use its power to decide guilt to make a de
facto punishment decision. Thus, eliminating lesser included
offense instructions would not have the effect of reducing the risk
of arbitrariness in the imposition of the death penalty. On the
contrary, as was stated in a footnote in Gregg, eliminating this and other procedural safeguards that have long
been accorded criminal defendants would raise serious
constitutional questions. Id. at 428 U. S. 199 ,
n. 50.

															Thus, it is only in cases like this in which the preclusion of
lesser included offenses is linked to a mandatory death penalty
that the State could even raise the possibility that the
elimination of this procedural safeguard was a permissible way to
reduce the arbitrary and capricious infliction of the death
penalty.

															[ Footnote 18 ]

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

															[ Footnote 19 ]

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

															[ Footnote 20 ]

															Alabama Code § 13-11-2(c) (1975) provides:

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

															[ Footnote 21 ]

															The jury in this case could hardly have been sure of the effect
of a mistrial. In his closing argument, one of petitioner's
attorneys told the jury that,

															"if I can have any opportunity under any reindictment or any
other way to take him [petitioner] before this bar of justice and
enter a plea of guilty of murder, robbery, either one, life in
prison, I'll take him."

															Record 689. At another point, however, petitioner's other
attorney indicated that petitioner could still be punished even if
he were acquitted, stating:

															"I submit to you if you acquit him, he's still in the Etowah
County Jail. I submit to you if you acquit him, that he can receive
his due punishment, but I say to you his due punishment is not
death." Id. at 709.

															In his instructions to the jury, the trial judge stated that, if
acquitted, petitioner could not be tried "for anything he ever did
to Roy Malone." And, although he explained that petitioner could be
retried in the event of a mistrial, he did not elaborate on what
that retrial would entail. Id. at 743.

															[ Footnote 22 ]

															The State's brief in opposition to the petition for certiorari
in Jacobs v. Alabama, O.T. 1978, No. 78-5696, states that,
of the first 45 defendants sentenced after conviction by a jury of
capital offenses, 37 received the death penalty from the trial
judge. See pp. 10, 35 of that brief. In his dissent in Jacobs v. State, 361 So. 2d at 650-651, Justice Jones
pointed out the practical obstacles to treating the jury's
imposition of the death penalty as being purely advisory:

															"[T]o leave sentence reduction in the prerogative of the trial
court is to place undue pressures upon this office. Again,
admittedly, a trial judge must often be the bulwark of the legal
system when presented with unpopular causes and adverse public
opinion. This State's recent history, however, reflects the outcry
of unjustified criticism attendant with a trial judge's reduction
of a sentence to life imprisonment without possibility of parole,
after a jury has returned a sentence of death. Clearly, this
pressure constitutes an undue compulsion on the trial judge to
conform the sentence which he imposes with that previously returned
by the jury."

															(Footnote omitted.)

															MR. JUSTICE BRENNAN, concurring.

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

															MR JUSTICE MARSHALL, concurring in the judgment.

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

															MR JUSTICE REHNQUIST, with whom MR. JUSTICE WHITE joins,
dissenting.

															The opinion of the Court begins by stating that we granted
certiorari to decide the question of whether a sentence of Page 447 U. S. 647 death may be constitutionally imposed after a jury verdict of
guilt of a capital offense, when the jury was not permitted to
consider a verdict of guilt of a lesser included noncapital offense
where the evidence would have supported such a verdict. I find the
Court's treatment of this issue highly unusual, since, although
this question was raised in the Alabama trial court and the Alabama
intermediate Court of Appeals, it was not preserved in the Supreme
Court of Alabama. That court began its opinion with this
language:

															"Petitioner Beck raises only one issue here:"

															"'Whether the Alabama Court of Criminal Appeals erred in its
finding that the Alabama Death Penalty Statute is not in violation
of Article III, Section 43, Article V, Section 124 and Amendment
38, of the 1901 Constitution of Alabama.'" 365 So.
2d 1006 , 1007.

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

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

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

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

															"It is urged that in the writ of error and petition for citation
it is stated that certain rights and privileges were Page 447 U. S. 648 claimed under the Constitution of the United States, and that
the Supreme Court of the State of Illinois decided against such
rights and privileges, and, it is further urged, that the chief
justice of the court allow the writ of error. This is not
sufficient."

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

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

															(Emphasis supplied.)

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

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