Dissenting Opinion by
Hoffman, J.;I respectfully dissent.
*168In my view, the Muncy Act constitutes an arbitrary and invidious discrimination against women offenders as a class.
The statute concededly requires longer sentences for women than for men convicted of the same crime. In the case of women offenders, the judge is precluded from exercising his discretion so as to achieve an equitable matching of crime and punishment. All women sentenced for offenses punishable by imprisonment for more than one year must be sentenced to the maximum permissible term. Men, on the other hand, may be sentenced to lesser terms.
Furthermore, the statute robs the trial judge of his discretion in the area of sentencing, and therefore lends itself to arbitrary and erratic administration by nonjudicial authorities. Thus, in theory, a woman sentenced under the provisions of the Muncy Act receives no minimum sentence. In practice, however, she will be required to spend a substantial period of time in prison before referral for parole, because of the rigid schedules of “time to be served” established by the Muncy authorities.1
In the instant case, the trial judge attempted to sentence the defendant to a term of one to four years. Were it not for the fact that she is a woman, she would have become eligible for parole in one year. Even if never released on parole, she would have been completely discharged after four years. Because of *169the mandatory language of the Muncy statute, however, she may serve a term whose maximum is 10 years. Because of the scheme of parole referral in force at Muncy, she will probably serve a minimum of three years at that institution. It is therefore apparent that the Act imposes heavier sentences on women in general and has worked to impose a more severe punishment on defendant Daniels in particular.
Acknowledging that the statute discriminates on the basis of sex alone, the majority nevertheless rejects the defendant’s challenge, by relying on “a strong presumption in favor of the constitutionality of acts of the legislature.” The operation of the statute is said to be free from arbitrariness so long as there is any “rational basis” for the harsher punishments it imposes on women.
In my view, the “any rational basis” formula is inadequate to test the validity of the Muncy Act against the present challenge. That doctrine derives from a number of cases upholding economic regulatory measures or statutes not directly impinging on personal liberties or fundamental rights. See, e.g., New York v. O’Neill, 359 U.S. 1 (1959) (Uniform Law to Secure the Attendance of Witnesses in Criminal Proceedings Within or Without a State); Loomis v. Philadelphia School District Board, 376 Pa. 428, 103 A. 2d 769 (1954) (Act providing leave of absence with pay for public employees on active or reserve duty in the armed forces); Daly v. Hemphill, 411 Pa. 263, 191 A. 2d 835 (1963) (Magistrates Court Act); Greenville Borough v. Guerrini, 208 Pa. Superior Ct. 42, 220 A. 2d 366 (1966) (Borough sewer rental ordinance discriminating against apartment houses in favor of rooming houses and hotels).
Surely, the proper inquiry here, as in McLaughlin v. Florida, 379 U.S. 184 (1964), is whether there clearly appears in the relevant materials some “overriding *170statutory purpose” requiring the imposition of more severe penalties on women than on men, and requiring the delegation of the sentencing power to a nonjudicial agency in whose hands it is manifestly susceptible of abuse.
The majority concedes that: “In certain cases, where a classification results in restricting personal liberties, the classification is specially suspect and the state in the first instance must show a subordinating interest that is compelling.” Ante, p. 163. But it distinguishes the present ease, apparently on the ground that since the legislature may punish those convicted of crime, inequalities in the nature of the punishment imposed are not subject to judicial scrutiny.
I find this distinction altogether untenable. The Supreme Court, in Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), has already spoken on the question. In Skinner, an Oklahoma statute required the sterilization of “habitual criminals.” That term included all persons three times convicted of felonies involving moral turpitude, but excepted persons convicted of embezzlement. The Court struck down the statute, as offensive to the Equal Protection clause, observing: “When the law lays an unequal hand upon those who have committed intrinsically the same quality of offense ... it has made an invidious discrimination.” Again, in McLaughlin v. Florida, supra at 192, the Court stated: “[In the context of a criminal statute] where the power of the state weighs most heavily on the individual or the group, we must be especially sensitive to the policies of the Equal Protection clause . . . which were intended .. .to subject all persons ‘to like punishments, pains, penalties . . . and exactions of every kind, and to no other.’ ” (Emphasis supplied)
In my view, the imposition of an especially severe criminal sentence on a particular individual or group impinges on his liberty as substantially as legislative *171action which denies him the right to vote, Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966), or the right to attend an unsegregated school.
To justify such discriminatory treatment, the Commonwealth must demonstrate more than the fragmentary and tenuous theories presented to us. Absent any compelling psychological, statistical, or scientific data, we cannot, nor should we, sanction a legislative scheme which is patently arbitrary and manifestly unfair.2
The recent decision by the Supreme Court in In the Matter of Gault, 387 U.S. 1 (1967), reflects a similar concern that high-minded ideals may obscure a harsh reality. In considering the nature of the Juvenile Court, the Supreme Court stated: “[T]he highest motives and most enlightened impulses led to a peculiar system for juveniles, unknown to our law in any comparable context. The constitutional and theoretical basis for this peculiar system is — to say the least — debatable. And in practice . . . the results have not been entirely satisfactory. Juvenile court history has again *172demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure.”
Similarly, under tbe guise of special rehabilitative treatment for women, the legislature, in the Muncy statute, has adopted a system which accomplishes little more than the imposition of harsher punishment for women offenders. As such, it denies them the Equal Protection of the laws guaranteed by the Constitution of the United States.
For these reasons, I would reverse.
According to a letter from the Superintendent of Muncy to the Voluntary Defender, the schedule is as follows:
Sentence Time to be served
8 years 18 to 20 months
5 years 2 to 2 y2 years
7 years 2% to 3 years
10 years (robbery) 2 y2 to 3 y¡ years
12 years (voluntary manslaug 4 to 4 y2 years
15 years Sys to 4y2 years
Philadelphia District Attorney Arlen Specter lias filed a candid and persuasive brief in support of tbe conclusion that the Muncy Act is unconstitutional. He offers tbe following excerpt from the work of a leading criminologist of fifty years ago to illustrate the philosophy underlying the statute:
“There is little doubt in the minds of those who have had much experience in dealing with women delinquents, that the fundamental fact is that they belong to the class of women who lead sexually immoral lives. . . .
“[Such a statute] would remove permanently from the community the feeble-minded delinquents who are now generally recognized as a social menace, and would relieve the state from the ever increasing burden of the support of their illegitimate children. Furthermore, . . . such a policy, thoroughly carried out, would do more to rid the streets ... of soliciting, loitering, and public vice than anything that could be devised. There is nothing the common prostitute fears so greatly as to know that if she offends and is caught she will be subject to the possibility of prolonged confinement.”