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. Through*391out 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 *392Alabama 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.
The same is true of the statements of the trial judge in this case. See ante, at 385-386.