(respectfully dissenting):
The majority opinion placed reliance upon the opinions of the Supreme Court in Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973), and Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973), as “recent” decisions dealing with the issue of retroactive versus prospective application of a new constitutional rule. By implication, I interpret the reference to these cases to signify that the majority believes that the Supreme Court thereby generated a shift from rules it had previously laid down governing the subject matter. My reading of the cases does not so indicate.
In Gosa the Court specifically recognized its time-honored dominant considerations determinative of the retroactive versus prospective application of a new constitutional rule, i. e.: (1) the purpose to be served by the new rule; (2) the extent of reliance placed on the old rule; and (3) the effect on the administration *1100of justice of the retroactive application of the new rule. The Court did in those opinions place emphasis on its concern for both basic fairness and essential justice. The difficulty I encounter, however, arises from the fact that the majority opinion recognizes- — as it must— that there was no challenge in Lamb aimed at the accuracy of the truth-finding process. There could not have been such a challenge because the condemned proceedings were undertaken under Oklahoma criminal statutes whereby due process requirements were obviously much more stringent and compulsory on the State than those prevailing under Oklahoma juvenile statutes. That being so, I believe that our Lamb non-retroactive ruling was on all fours with the rule of reason. The issue in Lamb was basically one of procedural law, not substantive law.
In applying the three considerations determinative of the retroactive versus prospective application set forth in Gosa, supra, to the cases at bar, we should first observe that the sole justification advanced by the State of Oklahoma in Lamb for the age-sex disparities was that the disparity was justified against an equal protection constitutional challenge based upon unexplained “demonstrated facts of life.” Lamb v. State, 475 P.2d 829 (Okl.Cr.1970). In our Lamb opinion we did not state that the disparity was without constitutional justification, but rather that no logical justification had been presented for our consideration. It was for that reason that the opinion volunteered that the ruling would not have retroactive application.
Those decisions whereby the courts have granted full retroactive effect to new constitutional rules involve, inter alia: (1) an accused’s right to the assistance of counsel at trial, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); (2) specific procedures designed to determine the substantive voluntariness of an accused’s confession, Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); (3) an accused’s right to confront the witnesses against him, Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969); (4) an indigent’s right to a free transcript on appeal, Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), reh. den. 351 U.S. 958, 76 S.Ct. 844, 100 L.Ed. 1480; and- (5) the impropriety of disqualifying prospective jurors because they have certain views as to capital punishment in proceedings involving the possible imposition of such punishment, Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), reh. den. 393 U.S. 898, 89 S.Ct. 67, 21 L.Ed.2d 186. The rules announced in these and many like cases were applied retroactively because they were found to be basic deprivation of rights casting serious doubts upon the reliability of the previous judicial determinations — in other words, challenges to the accuracy of the truth-finding process under the old rule. While these decisions necessarily, dealt with procedural techniques required to effectuate the new rules, each of the decisions were substantive in nature. Our volunteered non-retroactive holding in Lamb, supra, did not involve a substantive ruling.
To be sure, the issue of retroactive-prospective application was not raised by the parties in Lamb. That, however, is of no consequence. It is basic that the Federal Constitution has no voice upon the subject and that, accordingly, retroactive application of new constitutional rules is neither compelled nor prohibited thereby. Tehan v. United States, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966) ; Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).
In Gosa, supra, relied upon by the majority, the Court held that the three-pronged test heretofore referred to, first announced in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) , required that the decision in O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), holding that a serviceman charged with a crime that is not “service connected” is entitled to indictment by a grand jury and trial by jury in a civilian court rather than trial by court-martial, and that the ruling be accorded prospective effect only. *1101And in the recent case of Wolff, Warden et al. v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Supreme Court reversed the holding of the Court of Appeals that certain due process requirements involving prison disciplinary proceedings were to be applied retroactively. In Wolff, the Supreme Court held that the retroactivity of new procedural rules is effectively foreclosed by its holding in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The Court, 418 U.S. on page 573 of its opinion, 94 S.Ct. on page 2983 said:
Despite the fact that procedures are related to the integrity of the fact-finding process, in the context of disciplinary proceedings, where less is generally at stake for an individual than at a criminal trial, great weight should be given to the significant impact a retroactivity ruling would have on the administration of all prisons in the country, and the reliance prison officials placed, in good faith, on prior law not requiring such procedures, (emphasis supplied).
The United States Supreme Court has shied away from applying constitutional rulings retroactively in criminal cases because of the unknown number of convictions which would be affected. DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969). The Lamb holding, as noted, was not entered to overcome errors in the criminal trials which impaired the truth finding process and the accuracy of the guilty verdicts [Linkletter v. Walker, supra], or to guarantee a specific constitutional right. The holding involved the procedural issue of forum— not whether Lamb should have been tried but, rather, which forum (Criminal Court or Juvenile Court) should have conducted the proceedings — not whether, but where. The sole purpose was to deter further age/sex discriminations, absent constitutional justification.
In my judgment we must here recognize that Oklahoma relied upon the condemned statute re sex/age differential in all good faith for some thirty-one years without challenge. It is most inappropriate for the Court to now proceed to nullify and void all Oklahoma state convictions from 1941 to 1972 rendered under the condemned statute, involving at least some 2,173 convictions unquestionably accounted for. Furthermore, at the date of our Lamb decision there were 24 males incarcerated under the condemned act, convicted after April 4, 1972, who can overturn their convictions in reliance of the Lamb retroactive application involving, inter alia, the commission of the crimes of Rape, Manslaughter, Burglary, Larceny, and Robbery with Firearms. It is unknown whether or how many could be effectively retried. Releasing those convicted of such serious offenses against persons and property to the public “streets” without knowledge of the ability of the State to effectively undertake the burden of other proceedings, or to seek any recourse would, in my opinion, be wholly contrary to public policy. In addition, we now know that the records involving crimes committed by at least 2,173 males prosecuted under the condemned statute relied upon by Oklahoma officials for thirty-one years will have a most serious effect on the administration of justice by application of the Lamb ruling retroactively because their records must be expunged, again effectively impeding the search for truth — that which I consider the primary objective of the criminal justice system. By comparison, the juvenile records of female offenders under the age of 18 years shall not be expunged. This, I suggest, creates a question of basic fairness. In terms of essential justice, the Oklahoma statutes — although discriminatory between the sexes in the specific age categories — were not discriminatory in terms of application on the particular class, i. e., male or female.
Our ruling here assures that males between ages 16 and 18 in the following four categories of convictions are absolutely “home free” by reason of the retroactive application, i. e: (1) those who were convicted of felony offenses; (2) those whose convictions were the predi*1102cate for “former convictions” under enhancement statutes; (3) those who committed misdemeanors; and (4) those whose convictions may have been used to impeach their credibility.
I believe that the following observations made by Mr. Justice Blackmun, in writing for the majority in Gosa v. Mayden, supra, are most appropriate to the case at bar:
We must necessarily consider the impact of a retroactivity holding on the interest of society when the new constitutional standard promulgated does not bring into question the accuracy of prior adjudication of guilt. Wholesale invalidation of convictions rendered years ago could well mean that convicted persons would be freed without retrial, for witnesses, particularly military ones, no longer may be readily available, memories may have faded, records may be incomplete or missing, and physical evidence may have disappeared. Society must not be made to tolerate a result of that kind when there is no significant question concerning the accuracy of the process by which judgment was rendered or, in other words, when essential justice is not involved. 413 U.S. at 685, 93 S.Ct. at 2938-2939.