The opinion
CLARK, Circuit Judge,
dissenting:
I. BACKGROUND
The facts in this case are uncontroverted. In 1969, appellant-petitioner Edward Eugene Penn pled guilty to burglary and received a jail sentence. He was 16 years old. In 1970, he pled guilty to grand larceny and received a jail sentence. He was then 17 years old. Penn has one other prior felony conviction. In 1985, Penn was convicted of robbery and was sentenced to life without parole as a habitual offender. Had the state sentencing court not considered his 1969 and 1970 convictions, he would have been eligible for parole in 10 years.
Penn has challenged the enhancement of his 1985 sentence for the reason that his convictions in 1969 and 1970 violated the equal protection clause of the Fourteenth Amendment. He claims that an Alabama statute that was in effect in 1969 and 1970 irrationally discriminated between males and females in its definition of juvenile status. 1 This statute, which was applicable only to Jefferson County, Alabama (the county encompassing Birmingham and in which all of Penn’s convictions were entered), mandated that female delinquents would be treated as juveniles until they reached the age of 18, whereas male delinquents would only be treated as juveniles until the age of 16. In all of the other counties in the state, both males and females were treated as juveniles only until they reached 16. The exception for Jefferson County females was abolished in 1975.
Penn filed a habeas petition in federal district court on February 21, 1989. The district court determined that Penn’s convictions in 1969 and 1970 as an adult offender violated the equal protection clause, in that a similarly situated woman would have been convicted as a juvenile offender. The district court then denied habeas relief on the ground that, had the equal protection claim been adjudicated at the time of Penn’s convictions in 1969 and 1970, the court would have had no choice but to declare the statute unconstitutional and therefore nullify it completely (as opposed to extending the statute’s benefits to the excluded classes).
II. EXTENSION OR NULLIFICATION
The district court was certainly correct to find that Penn’s 1969 and 1970 convictions violated the equal protection clause. 2 Just as certainly, the district court erred in *844 refusing to grant relief. The district court should have found that the benefits of the statute would have been extended to all defendants between the ages of 16 and 18. At a minimum, Penn’s current sentence cannot be allowed to stand because of its unconstitutional component.
A. The Requirement of a Concrete Remedy
This court’s precedents conclusively show that Penn cannot be allowed to go remediless. In Cox v. Schweiker, 3 we held:
When a statute conferring benefits on a certain class of persons is held unconstitutional due to a violation of the equal protection clause, then the unlawful discrimination or classification must be eradicated, either by granting the benefits to the inappropriately excluded class, or by denying them to the class theretofore benefitted unlawfully. In such cases where a sovereign has intentionally conferred some type of benefit upon one group and thereby unconstitutionally deprived another, the normal judicial remedy is to extend the benefits to the deprived group. Otherwise, the result is an imposition of hardship on a number of persons whom the legislature intended to protect. 4
The “normal judicial remedy” should be applied in this case as well.
Our decision in Cox was informed by a line of Supreme Court cases that discuss the means by which courts are to determine whether an unconstitutional statute is to be nullified or extended. Justice Harlan’s concurrence in Welsh v. United States 5 is the seminal authority in this area of law. All nine members of the Supreme Court adopted Justice Harlan’s basic remedial formulation in Califano v. Westcott. 6 In Welsh, the Supreme Court overturned Welsh’s criminal conviction for draft evasion and ruled that “deeply held moral, ethical, or religious beliefs” 7 entitled Welsh to conscientious objector status. Justice Harlan concurred to explain his views on the proper remedy, among other things. He wrote:
The appropriate disposition of this case ... is determined by the fact that at the time of Welsh’s induction notice and prosecution the Selective Service was, as required by statute, exempting individuals whose beliefs were identical in all respects to those held by petitioner except that they derived from a religious source. Since this created a religious benefit not accorded to petitioner, it is clear to me that this conviction must be reversed under the Establishment Clause of the First Amendment unless Welsh is to go remediless. 8
Justice Harlan also stated that, because Welsh’s challenge to the statute involved a criminal conviction, the statute’s extension was “mandated by the Constitution.” 9 Justice Harlan’s concurrence thus indicates that classifications such as those formulated by the statute at issue here create concrete injuries that require concrete remedies. 10
*845 Even in non-criminal cases, the Supreme Court has recognized that the harm of an equal protection violation may require more than rectification of the inequality. In Iowa-Des Moines Nat’l Bank v. Bennett, 11 the Court struck on equal protection grounds a state bank tax that favored certain institutions over others. As to the remedy, Justice Brandéis held:
The right invoked is that to equal treatment; and such treatment will be attained if either [the petitioning banks’] competitors' taxes are increased or their own reduced. But it is well settled that a taxpayer who has been subjected to discriminatory taxation through the favoring of others in violation of federal law cannot be required himself to assume the burden of seeking an increase of the taxes which the others should have paid. Nor may he be remitted to the necessity of awaiting such action by the state officials upon their own initiative.
The petitioners are entitled to obtain in these suits refund of the excess of taxes exacted from them. 12
Although writing in the context of taxation, Justice Brandéis clearly expressed a preference for tangible relief to litigants subjected to discriminatory laws. Applying Brandéis’ reasoning to this case, our court should refuse to lower the age of criminal majority (raise the tax rate) but instead should require that all defendants be subject to the same age of criminal majority (tax rate) as the favored group.
B. The Issue of Legislative Intent
The most recent Supreme Court pronouncement on this question indicates that courts “must look to the intent of the state legislature to determine whether to extend benefits or nullify the statute.” 13 But where the legislature has not indicated its intent through a severability clause, it is almost impossible to determine the contingent intent of the legislature. As Justice Harlan noted in Welsh, nullifying a statute goes against legislative intent as much as extending statutory benefits; nullification requires that a statute’s “benefits not extend to the class that the legislature intended to benefit.” 14
In this case, we have little evidence as to what the Alabama legislature would have intended had the statute at issue been declared unconstitutional at the time of Penn’s convictions in 1969 and 1970. The legislature later abolished the distinction created by the statute and established 16 as the statewide age of criminal majority for both sexes. 15 The district court’s decision seems to have turned on the assumption that the legislature of Alabama intended for most persons over the age of 15 to be treated as adults and only wanted to protect the relatively few females in Jefferson County who fell between the ages of 16 and 18. The district court then attempted to approximate this legislative decision as best as possible by applying the lower age of criminal majority across the board. But for all we know, females in Jefferson County between the ages of 16 and 18 could have constituted the majority of persons in the state of Alabama in that age range. (Jefferson County encompasses Birmingham, Alabama’s largest city.) We also have no way of weighing the legislature’s intensity of preference. The state legisla *846 ture may have felt extremely strongly that females in Jefferson County should be treated as juveniles until reaching the age of 18 and may have been indifferent as to the treatment of all others in the state between the ages of 16 and 18. Given our lack of information as to the true intent of the legislature, the wisest approach would be to extend the statute. This approach is the only way to be sure we are at least protecting those citizens we are certain the Alabama legislature meant to protect. 16
Perhaps more importantly, the Supreme Court in Skinner v. Oklahoma 17 refused even to speculate as to whether nullification or extension of Oklahoma’s habitual offender sterilization statute would be appropriate and simply reversed the petitioner’s conviction on equal protection grounds: “We have ... a situation where the Act as construed and applied to petitioner is allowed to perpetuate the discrimination which we have found to be fatal.” 18 The Court reasoned that, despite the presence of a severability clause, the question of whether to extend or nullify the statute was “more appropriately left for adjudication by the Oklahoma court.” 19 We are faced with an exactly analogous situation in the instant case: Penn’s convictions were entered in violation of the equal protection clause, we have even less information than the Supreme Court in Skinner had as to the legislature’s intent in the event of the unconstitutionality of the statute, and we should therefore at a minimum reverse Penn’s present sentence, which is based on the prior, unconstitutional convictions.
C. Policy Considerations
Policy reasons also indicate that the benefits of the statute should be retroactively extended to all defendants in the state of Alabama. The statutory scheme in question is no longer in effect. The consequences of declaring a superseded statute unconstitutional are minimal. There is little possibility of disrupting Alabama’s current administration of its criminal justice system, of requiring large expenditures of funds to right the inequality, or even of causing friction between state legislative leaders and the federal courts. The only consequence is that those who are currently incarcerated on sentences that stem at least in part 20 from convictions entered against them in Alabama while they were between the ages of 16 and 18 and who were not females in Jefferson County may be eligible for resentencing proceedings.
III. PRESENT RELEVANCE OF PRIOR CONVICTIONS
Penn’s requested relief should be granted on the alternate ground that the Supreme Court has indicated that it is the present effect of Penn’s prior, unconstitutional convictions that must be remedied, regardless of whether Penn would have been ultimately successful had he sought relief in 1969 or 1970. The Court has reversed criminal sentences that have been enhanced by prior, unconstitutional convictions without taking heed of whether the defendant would have escaped punishment under the prior convictions, had his rights been secured in the earlier proceedings. In the context of a federal enhanced sentence in United States v. Tucker, 21 the Court declared:
We need not speculate about whether the outcome of the respondent’s 1938 and 1946 prosecutions would necessarily have been different if he had had the help of a lawyer. Such speculation is not only fruitless, but quite beside the point. For the real question here is not whether the results of the Florida and Louisiana pro *847 ceedings might have been different if the respondent had had counsel, but whether the sentence in the 1953 federal case might have been different if the sentencing judge had known that at least two of the respondent’s previous convictions had been unconstitutionally obtained. 22
Applying the words of Tucker to the facts of this case, we have: “The real question here is not whether the results of the 1969 and 1970 prosecutions might have been different if the age-differentiation statute had been found unconstitutional at that time, but whether the sentence in the 1985 conviction might have been different if the sentencing judge had known that at least two of the respondent’s previous convictions had been unconstitutionally obtained.” The Tucker Court looked only to the present effect of the unconstitutional action, not to hypothetical past effects. The Court in Tucker was willing to overturn Tucker’s conviction even though the lack of counsel may well have been harmless error. Analogously, even assuming that the statute at issue would have been nullified and not extended if it had been challenged at the time of Penn’s prior convictions, Penn’s prior convictions as an adult were all the same entered in violation of the equal protection clause, and his present sentence was unconstitutionally enhanced. 23
IV. CONCLUSION
Penn is suffering severely from a violation of his rights to equal protection. He has been sentenced to life in prison without parole on the basis of prior convictions that were unconstitutionally entered against him. This court should follow the Supreme Court’s decisions in Skinner and Tucker and grant the writ of habeas corpus. Any other course of action leaves Penn remediless.
. Tit. 62, § 311, Code of Alabama (1940, recompiled 1952).
. See, e.g., Lamb v. Brown, 456 F.2d 18, 20 (10th Cir.1972) ("Because the purpose of the disparity in the age classification between 16-18 year old males and 16-18 year old females has not been demonstrated, we hold that [the statute creating the disparate treatment] is violative of the equal protection clause.”); Raiford v. State, 296 Md. 289 , 462 A.2d 1192 (1983) (extending statewide statute establishing 18 as the limit for juvenile status to Baltimore).
. 684 F.2d 310 (5th Cir. Unit B 1982).
. Id. at 317 (emphasis added and citations omitted),
. 398 U.S. 333, 344 , 90 S.Ct. 1792, 1798 , 26 L.Ed.2d 308 (1970) (Harlan, J., concurring).
. 443 U.S. 76, 89, 94 , 99 S.Ct. 2655, 2663, 2666 , 61 L.Ed.2d 382 (1979).
. 398 U.S. at 344 , 90 S.Ct. at 1798 .
. 398 U.S. at 362 , 90 S.Ct. at 1808 (citations and footnote omitted).
. 398 U.S. at 363 , 90 S.Ct. at 1809 .
. See also Miller, Constitutional Remedies for Underinclusive Statutes: A Critical Appraisal of Heckler v. Mathews, 20 Harv.C.R.-C.L.L.Rev. 79 (1985):
In Welsh, the unconstitutionality of Welsh’s injury plainly could have been remedied by nullifying the exemption granted to religious objectors. As Justice White pointed out in dissent, Welsh had no constitutional claim to exemption independent of the fact that it had been granted to others. Nevertheless, nullification was inadequate as a constitutional remedy. The reason, for Justice Harlan and implicitly for Justice White, was that while nullification would correct the unconstitutionality of the statutory exemption scheme, it would not touch the injury suffered by Welsh — the conviction for refusing induction and the corresponding prison sentence.
Id. at 115 (footnote omitted).
. 284 U.S. 239 , 52 S.Ct. 133 , 76 L.Ed. 265 (1931).
. 284 U.S. at 247 , 52 S.Ct. at 136 (citations omitted).
. California Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272 , 292 n. 31, 107 S.Ct. 683 , 695 n. 31, 93 L.Ed.2d 613 (1987).
. Welsh, 398 U.S. at 361 , 90 S.Ct. at 1808 ; see also Westcott, 443 U.S. at 90 , 99 S.Ct. at 2664 (‘‘[A]n injunction suspending the program’s operation would impose hardship on beneficiaries whom Congress plainly meant to protect.”); Kalina v. Railroad Retirement Bd., 541 F.2d 1204, 1210 (6th Cir.1976) (invalidating gender-based disparate treatment of spouses of railroad employees; "the Board suggests that we should hold that all spouses, female as well as male, of railroad employees must prove that they are dependent in fact in order to qualify for a spouse's annuity. This result would he contrary to the considered decision of Congress that spouses of male railroad workers are to be conclusively presumed dependent.”), aff’d, 431 U.S. 909 , 97 S.Ct. 2164 , 53 L.Ed.2d 220 (1977).
.Ala.Code § 12-15-1(3) (1975).
. See Cox, 684 F.2d at 317 ("Otherwise the result is an imposition of hardship on a number of persons whom the legislature intended to protect.” (citation omitted)).
. 316 U.S. 535 , 62 S.Ct. 1110 , 86 L.Ed. 1655 (1942).
. 316 U.S. at 543 , 62 S.Ct. at 1114 .
. Id. (citation omitted).
. See generally Maleng v. Cook, 490 U.S. 488 , 109 S.Ct. 1923 , 104 L.Ed.2d 540 (1989).
. 404 U.S. 443 , 92 S.Ct. 589 , 30 L.Ed.2d 592 (1972).
. 404 U.S. at 447-48 , 92 S.Ct. at 592 (footnotes omitted).
. See generally United States v. Addonizio, 442 U.S. 178, 187 , 99 S.Ct. 2235, 2241 , 60 L.Ed.2d 805 (1979) (emphasizing that challenge to enhanced sentence must rest on "misinformation of constitutional magnitude").