specially concurring:
I concur that the statutes are unconstitutional for vagueness. But after a thorough study of the issues presented, I would hold, in addition, the subject statutes create an impermissible presumption having no rational connection to the juvenile’s competency to stand trial as an adult.
Prior to the 1978 amendments of those two statutes, the Oklahoma certification process, in my view, complied with Constitutional requirements and provided a viable procedure for determining which juveniles *331were to face adult prosecution.1 The class of juveniles was then defined as: “The term ‘child’ means any person under the age of eighteen (18) years.” Title 10 O.S. Supp.1977, § 1101(a). Numerous privileges and protections were afforded this class by members of the Legislature, including the presumption of incompetency to stand trial as an adult (10 O.S.Supp.1977, § 1112).2
With the 1978 amendments a subclass was created which was composed of sixteen and seventeen-year-olds who had been charged with one of eleven enumerated crimes. Members of this subclass had a common basis of difference from the class, i. e., age and severity of the crime. While the Constitution does not deny to states the power to treat separate classes of persons in different ways, nevertheless, to uphold the subject statutes as constitutional, that common basis of difference must be “reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” See Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971), quoting from F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed.2d 989 (1920).3
The question presented is whether the difference in age and offense warrants the distinction in accountability to stand trial as an adult. The gravity of these types of crimes and their threat to public safety is demonstrated by their respective prescribed penalties. The apparent purpose of the legislation is the protection of society from juveniles accused of more violent crimes.4 Another reason suggested for including these individuals in the adult justice system is that it will keep them separated from the less criminally sophisticated juveniles.5 Finally, there is the political reality that highly visible serious offenses evoke community outrage or fear that only the punitive sanction of an adult conviction can mollify.6
The Juvenile Court is theoretically engaged in determining the needs of the child and of society rather than adjudicating criminal conduct. Our Juvenile Code specifically articulates this general policy and purpose of the juvenile court system. The major premise of the system is that measures of guidance and regenerative treatment postulated for children should be provided until the juveniles reach a legislatively determined age. Whether to transfer a juvenile from the statutory structure of the Juvenile Court to the criminal processes of the District Court is a critically important decision accompanied by tremendous consequences.
Implicit in the scheme is that noncriminal treatment for juveniles is to be the rule— and adult criminal treatment the exception, which must be governed by a consideration of particular factors in individual cases.7 It *332appears to me the State seeks to eliminate this consideration in the instant case by the mere accusation of a violent crime, in direct contravention of Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045,16 L.Ed.2d 84 (1966).
The primary benefit afforded juveniles below the statutory age is the presumption of incompetency to stand trial as an adult. Prior to October 1, 1978, the State had the burden of proof by substantial evidence to overcome this presumption of incompetency.8
Then the Legislature in its response to the public outcry against violent crimes, enacted this legislation without the benefit of sufficient empirical data or extensive public hearings — the result being legislation which presumes the competency of every sixteen and seventeen-year-old accused of one of the enumerated crimes, and further presumes all other juveniles within the subclass act out of incompetency when they are accused of a nonenumerated offense.
The power of the Legislature to make proof of one fact evidence of another is limited by the Fourteenth Amendment. The United States Supreme Court substantially defined the constitutional limitations on the use of presumptions in criminal cases in a series of opinions beginning with Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943).9 In Tot the Court struck down a provision of the Federal Firearms Act which made it unlawful for any person convicted of a crime of violence to receive any firearm shipped in interstate commerce. Further, possession of a firearm was presumptive evidence that it was received in violation of the Act. In holding the presumption violated due process the Court said:
“. . . Under our decisions, a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience. But where the inference is so strained as not to have a reasonable relation to the circumstances of life as we know them it is not competent for the legislature to create it as a rule governing the procedure of courts.” (Emphasis added)
Applying Tot v. United States, supra, to the case at bar, what is the rational connection between the basic fact proved (age/offense classification) and the presumed fact (competency)?
In the trial court, the juvenile presented the uncontradicted testimony of Judge Stewart M. Hunter, who for seven years was Presiding Judge of the Juvenile Division of the District Court of Oklahoma County. His testimony was that from his experience, the age of the juvenile and the offense alleged have no relationship to the ability to know right from wrong or the amenability to rehabilitation of a “subclass” member. This witness concluded that the seriousness of a particular crime is of no benefit in deciding whether a particular juvenile possesses sufficient maturity or competency to be held accountable for his acts as an adult.
It is significant to note that the State did not refute Hunter’s testimony. Nor does the State attempt on appeal to this Court to show that the common basis of difference between the “class” and “subclass,” the age and severity of the criminal offense, has the necessary constitutional relationship to the elimination of the incompetency to stand *333trial as an adult. The connection between age/offense and competency is too tenuous and arbitrary to pass constitutional muster. Furthermore, it is not too much to say that the presumptions created by the statutes in question are inconsistent with any argument drawn from accumulated common experience. The parties have not brought to the attention of this Court any available pertinent reports, studies, or compilations of statistics by governmental or nongovernmental agencies, courts, bar associations, etc., for evidence to support or rebut the inferences called for by the statutes. From my research and from an examination of the studies that have been conducted, it appears the seriousness of an offense provides little basis or enlightenment for distinguishing those juveniles who are not susceptible to rehabilitation and are likely to recidivate from those for whom disposition as a juvenile is appropriate.10
I am compelled to conclude the presumptions of competency cannot be upheld without making serious incursions into the holdings of Tot, Gainey, and Romano. These holdings require that it be determined with “substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.”11 It cannot be said with substantial assurance that the presumed fact (competency) is more likely than not to flow from the basic proved fact (the age/offense classification). Judged by this standard and the foregoing analysis, I would hold the statutory presumption in issue does not comport with due process and is constitutionally infirm.
Having found the challenged statutes on “reverse certification” unconstitutional, the Legislature might be guided in enacting future legislation concerning the serious juvenile offender. First, the “rational connection test,” previously discussed, must be considered in evaluating any proposed legislation. Second, the Legislature, in its urgency to enact legislation in response to the more sophisticated juvenile offender accused of more violent crimes, must recognize that the statute must be more than a procedural shortcut for prosecutors seeking to bring these juveniles to the adult criminal justice system.
Offense exclusion, standing alone, is clearly at odds with the rehabilitative philosophy of the juvenile court that the waiver of juvenile division jurisdiction should be based on findings about the child rather than on findings about the offense. Legislative exclusion on the basis of a present serious offense combined with a consideration of the juvenile’s prior record is much more likely to be upheld by the federal appellate courts. To maintain the present classification will invite reversals and retrials of hundreds of cases in the future.
Statutes incorporating an offender’s age, present offense, and prior juvenile record classification to determine competency to stand trial as an adult, in my opinion, would meet the requirements of Tot v. United States, supra. This approach appears to be more realistic toward identifying the seri*334ous and persistent offender and could (1) establish a minimum age at the time of the criminal act as a precondition for adult prosecution and (2) create categories combining different degrees of offense seriousness with different measures of persistence, under which adult prosecution vrould be mandated. Under these guidelines, as the seriousness of the present offense increases, the number of prior convictions required would decline. As the seriousness of the present offense decreases, the number of prior convictions required for adult prosecution would increase.
Seriousness of the offense would be determined by legislative classifications and authorized penalties. Only offenses committed after a juvenile attained the minimum age would be counted among the offenses included in the prior record. At least one separate involvement in serious misconduct seems necessary to warrant the conclusion that the youth’s act requires adult disposition. This would have the effect of legislatively distinguishing between the persistent serious offender and the isolated serious offender.
The Institute of Judicial Administration and American Bar Association, Juvenile Justice Standards Project, Standards Relating to Transfer Between Courts (1977), required a prior adjudication of an offense against the person as a prerequisite for adult prosecution:
“The juvenile must have been previously adjudicated on charges of threatening or inflicting serious bodily injury. The presumption in favor of juvenile court jurisdiction is strong. Only juveniles who pose genuine threats to community safety should be waived and exposed to the greater sanctions of the criminal court. A prior record of violent acts is evidence of that threat.” (Emphasis added)
This recommendation might be incorporated in proposed legislation by requiring a prior offense or adjudication that a set number of prior felony adjudications coupled with a present serious offense against the person warrant adult prosecution. Any statutes enacted could attempt to balance lesser offenses, as compared to offenses against the person.
Initially, the prosecutor’s decision could be determinative of juvenile or adult court jurisdiction. Upon consideration of the present offense and probable cause to believe the juvenile committed a particular felony, the prosecutor could consult the juvenile’s prior juvenile record. If the juvenile’s age, present offense, and prior record excluded him from juvenile court jurisdiction, the case could then be transferred for adult prosecution. Further, a statutory provision could be made to transfer the juvenile back to juvenile court where probable cause was found only for a lesser offense, for which the seriousness and persistence did not mandate adult prosecution.
Following these or similar guidelines, adoption of an age/offense/prior record classification could contribute to the rationalization of the dispositional decision-making process. In addition, such a classification could provide a finite outer limit on the length of juvenile court jurisdiction, which would place both the youth and court on notice that continued criminal involvement would eventually lead to prosecution as an adult.
Accordingly, I specially concur with the majority opinion.
. Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966); J. T. P. v. State, Okl.Cr., 544 P.2d 1270 (1975).
. Other protections afforded the class included: The right to a private hearing under 10 O.S.Supp.1975, § 1111; consideration of release to parents under 10 O.S.Supp.1977, § 1107; a stricter admissibility standard for confessions, 10 O.S.Supp.1977, § 1109; and detention alternatives pursuant to 10 O.S.Supp.1977, § 1108.
. For other cases applying this standard see: Craig v. Boren, 429 U.S. 190, 210-211, 97 S.Ct. 451, 463-464, 50 L.Ed.2d 397 (1976); Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 688, 54 L.Ed.2d 618 (1978).
. The purpose is not directly apparent from the face of the statute and the Oklahoma Legislature does not preserve statutory history materials capable of clarifying the objectives served by its legislative enactments.
. See note, “Youthful Offenders and Adult Courts: Prosecutorial Discretion v. Juvenile Rights,” 121 U.Pa.L.Rev. 1184 (1973).
. See comment, “Representing the Juvenile Defendant in Waiver Proceedings,” 12 St. Louis U.L.J. 424, 437 (1968).
. Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). In accord, see State v. Juvenile Division, Tulsa County District Court, Okl.Cr., 560 P.2d 974 (1977), and In the Matter of G. A. M., Okl.Cr., 563 P.2d 161 (1977).
. Matter of G. D. C., Okl.Cr., 581 P.2d 908 (1978).
. For two other cases dealing with the constitutional limits on the creation of presumptions in criminal cases, see United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965), and United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965). In Gainey the Court sustained the validity of a presumption applying the rational connection test. There, the statute provided that presence at the site was sufficient to convict a defendant of the offense of carrying on the business of distilling without giving bond, unless the defendant explained his presence to the satisfaction of the jury. In Romano the Court struck down as violative of the Tot principle a presumption of possession of an illegal still from unexplained presence.
. For a thorough discussion, see “Reference of Juvenile Offenders for Adult Prosecution: The Legislative Alternative to Asking Unanswerable Questions,” by Barry C. Feld, 62 Minn.L. Rev. 515 (1978). This article states that the seriousness of a present offense, plus an extensive prior criminal record, provides a rational predictive basis for certification that is more accurate than any clinical judgment. The author proposes an empirically derived actuarial matrix, excluding offenders with various combinations of present offenses and prior offenses from juvenile court jurisdiction, could be adopted by a legislature, explicitly incorporating the actuarial prediction methods on which the courts implicitly rely in making amenability/dangerousness determinations.
. See Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), discussed in “The Unconstitutionality of Statutory Criminal Presumptions,” 22 Stan.L.Rev. 341, 346 (1970). Leary held unconstitutional a statutory presumption that unless satisfactorily explained, possession of marihuana was sufficient to prove the defendant knew the marihuana had been illegally imported into the United States.
For two more recent decisions considering the validity under the Due Process Clause of criminal law presumptions and inferences see: Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970); Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973).