The issue is the retroactivity of Lamb v. Brown, 10 Cir., 456 F.2d 18, which held that 10 Okl.St.Ann. § 1101 (Supp. 1969) was unconstitutional in that it violated the equal protection clause of the Fourteenth Amendment. Section 1101 allowed the benefits of juvenile court proceedings to females under the age of 18 years but limited those benefits to males under the age of 16 years. The opinion concluded with the statement that: “This ruling shall not apply retroactively.” Ibid, at 20.
We now have two habeas corpus cases each brought in the Northern District of Oklahoma by a male who was denied juvenile court proceedings because of age. Petitioner-appellant Radcliff, at age 17, was prosecuted as an adult and found guilty of unauthorized use of a motor vehicle. Petitioner-appellee Stringfield, when 17 years old, was prosecuted and sentenced as an adult for second degree burglary. Each claims that § 1101 unconstitutionally deprived him of the right of juvenile proceedings and, hence, the adult proceedings cannot be sustained.
No. 73 — 1520 is an appeal from the denial of the habeas petition of Radcliff. Judge Daugherty construed the Lamb decision as deciding that the issue there involved was procedural rather than substantive and held that he was bound to follow the declaration that Lamb had no retroactive application. Accordingly, he dismissed the habeas action.
No. 73-1550 is an appeal by the warden of the Oklahoma reformatory from the grant of the habeas petition of Stringfield. Judge Barrow held that the action taken in Lamb was substantive and that the declaration of nonretroactivity was dictum, not binding on him. Accordingly, he granted the habeas writ.
The. Lamb decision is the law of the circuit and we are concerned only with its retroactivity. There are decisions that an unconstitutional law must be taken as having no effect whatsoever from the very date of its enactment. See Chicago, Ind. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566, 33 S.Ct. 581, 57 L.Ed. 966; Norton v. Shelby County, 118 U.S. 425, 442, 6 S.Ct. 1121, 30 L.Ed. 178; and Ex parte Siebold, 100 U.S. 371, 376, 25 L.Ed. 717. Later cases have rejected this holding. Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 374, 60 S.Ct. 317, 84 L.Ed. 329, and *1095Linkletter v. Walker, 381 U.S. 618, 622-629, 85 S.Ct. 1731, 14 L.Ed.2d 601. Accordingly, retroactivity must be determined in the light of recent decisions of the Supreme Court.
During its last term the Court reviewed the subject in Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 and Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873. The opinions in those cases analyzed and scrutinized the Court’s previous decisions on retroactivity. Any attempt on our part to reexplore the field would be nonproductive. It is enough that none of the decisions referred to in Robinson and Gosa treat the specific issue before us. Robinson was concerned with the retroactivity of Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435, which barred, on double jeopardy grounds, two prosecutions, state and municipal, based on the same act or offense. In holding that Waller was fully retroactive, the Court said that the practical result of the constitutional provision against double jeopardy “is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial.” 409 U.S. at 509, 93 S.Ct. at 878.
Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873, was concerned with the retroactivity of O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291, which held that a serviceman charged with a nonservice connected crime was entitled to indictment by grand jury and trial in a civilian court. A plurality of the Supreme Court held that O’Callahan should “be accorded prospective application only.” 413 U.S. at 685, 93 S.Ct. 2926. The Court recognized three dominant considerations applicable to a determination of retroactivity. They were (1) purpose of the new constitutional rule, 413 U.S. at 679, 93 S.Ct. at 2936, (2) reliance on the old rule, Ibid, at 682, 93 S.Ct. at 2937 and (3) effect on the administration of justice, Ibid. The Court commented that consideration also must be given to “the impact of a retro-activity holding on the interests of society when the new constitutional standard promulgated does not bring into question the accuracy of prior adjudications of guilt.” Ibid, at 685, 93 S.Ct. at 2938.
The application of the Gosa tests to the issue before us produces no ready answer. The purpose of Lamb was to end sex discrimination in juvenile proceedings. The reliance on § 1101 was confined to the period between January 13, 1969, its effective date (see statement preceding § 1101 in 1 O.S.1971), and the March 16, 1972, decision in Lamb. The record contains nothing to show the impact of Lamb on the administration of justice, other than the two cases before us and the possibility of others wherein sex discrimination occurred during the three-year period. The interests of society must be balanced against “essential justice” to the individuals. See Gosa, 413 U.S. at 685, 93 S.Ct. 2926.
We have here no question of the accuracy of the fact-finding process. We assume that the adult proceedings to which these boys were subjected resulted in the determination of the truth. In any event, the integrity of the fact-finding process is not an absolute criterion. See Robinson, 409 U.S. at 508, 93 S.Ct. 876 citing Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. Robinson points out that the post-Linkletter cases giving prospective application to procedural rules did not involve “the basic fairness of the earlier trial.” 409 U.S. at 509, 93 S.Ct. at 878.
The Oklahoma statutes give to children benefits not allowable to adults. These include form of petition (§ 1103), custody (§ 1104), release to parents (§ 1107), temporary detention (§ 1108), conduct of hearings, including a provision for privacy (§ 1111), and discretionary certification for adult proceedings after a preliminary hearing (§ 1112(b)).
Mr. Justice Black, concurring in In Re Gault, 387 U.S. 1, 59, 87 S.Ct. 1428, 1460, 18 L.Ed.2d 527, said that the juvenile laws “provide a system of courts, procedures, and sanctions deemed to be less harmful and more lenient to children than to adults.” The petitioners were denied the benefits of the system which *1096Oklahoma provides for children. Accordingly, we are concerned here with both basic fairness and essential justice.
Woodall v. Pettibone, 4 Cir., 465 F.2d 49, dealt with the retroactivity of a federal decision holding unconstitutional upon the ground of denial of equal protection certain Maryland statutes permitting different treatment of juveniles in mentioned geographical areas. The court said that to deny in one area the opportunity to take advantage of diminished responsibility as a juvenile and to allow it in another area is “so fundamentally unfair as to impeach the validity of the ‘adult’ proceedings and render unreliable the guilty verdicts obtained in these proceedings.” 465 F.2d at 52.
A certiorari ■ application in Woodall was denied by the Supreme Court, see 413 U.S. 922, 93 S.Ct. 3054, 37 L.Ed.2d 1044, on the same day that it decided Gosa. Although denial of certiorari has normally no implication or inference, we believe that the denial in Woodall, when coupled with the disparity of views expressed in the four opinions filed in Gosa, is some indication of the attitude of the Supreme Court towards the problem before us. Cf. United States v. Kras, 409 U.S. 434, 443, 93 S.Ct. 631, 34 L.Ed.2d 626.
No question of retroactivity was presented in Lamb. The statement that its ruling should not apply retroactively, see 456 F.2d at 20, is dictum which arises no higher than “comment merely obiter.” Hawks v. Hamill, 288 U.S. 52, 59, 53 S.Ct. 240, 77 L.Ed. 610. We believe that the principles of “basic fairness” mentioned in Robinson and “essential justice” mentioned in Gosa require that the Lamb decision be applied retroactively.
In 73 — 1520, Radcliff, the judgment is reversed and the case is remanded to the district court for further proceedings in the light of this opinion.
In 73 — 1550, Stringfield, the judgment is affirmed.