dissenting.
I must dissent because I believe the continued imposition of a sentence of life without the possibility of parole for rape, which was originally imposed on Appellant in 1972, constitutes cruel and unusual punishment in violation of Sections Two and Seventeen of the Kentucky Constitution, as well as of the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. Although this sentence may not have offended our Commonwealth’s standards of decency at the time it was imposed, I believe it does offend those standards today.
The question of what constitutes cruel and unusual punishment is not static and fixed. Rather, the prohibition against cruel and unusual punishment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” See Trop v. Dulles, 356 U.S. 86, 100, 78 S.Ct. 590, 598, 2 L.Ed.2d 630, 642 (1958). “[T]he concept changes with the continual development of society and with sociological views concerning the punishment for the crime. There is no doubt but that the courts of England in Blackstone’s day would have accepted means of punishment which would be completely intolerable in our time.” McQueen v. Parker, Ky., 950 S.W.2d 226, 228 (1997) (Stumbo, J., dissenting) (quoting Workman v. Commonwealth, Ky., 429 S.W.2d 374, 377 (1968)).
In 1975, the Kentucky legislature abolished the sentence of life without the possibility of parole for rape. Although the legislature at that time declared that any offense committed prior to January 1, 1975, shall be punished under the provisions of the law existing at the time the offense was committed (KRS 500.040(1)), the fact that the sentence was abolished for all rape convictions after that date was the first clear indication that our changing societal standards no longer condoned the complete denial of eligibility for parole for offenders convicted of rape. The majority cites McDonald v. Commonwealth, Ky., 569 S.W.2d 134 (1978); Green v. Commonwealth, Ky., 556 S.W.2d 684 (1977); Fryrear v. Commonwealth, Ky., 507 S.W.2d 144 (1974); and Workman v. Commonwealth, Ky., 429 S.W.2d 374 (1968), for the proposition that the sentence of life without the possibility of parole for rape is constitutional. Workman and Fryrear, however, were decided prior to the abolishment of that sentence in 1975, and Green and McDonald were decided over twenty years ago. Thus, they have little bearing on today’s societal standards of decency and fairness. As in McQueen, I remain troubled by this Court’s tendency to take refuge in the safety of precedent rather than to confront the weighty issue of what constitutes cruel punishment under our current value system. See McQueen, 950 S.W.2d at 227-28.
Rather than looking to precedent established a generation ago, I believe this Court should turn its attention to more recent indicators of society’s views on this issue, as expressed by our legislative and executive branches. Specifically, I am referring to the amended version of KRS 532.030(1), which took effect July 15, 1998, and which reinstated a sentence of life without the possibility of parole as an alternative sentence in cases in which the defendant qualifies for the death penalty. Contrary to the majority’s suggestion that the enactment of this statute somehow supports the notion that our Commonwealth has once again embraced the notion that those convicted of rape may be denied the possibility of parole, I believe the statute indicates the exact opposite. The new law does not authorize the imposition of life without the possibility of parole for rape, but rather, authorizes that penalty for those *444convicted of murder in a capital case. Although Appellant was convicted and sentenced to life imprisonment (with the possibility of parole) for the murder of Edwin Dorsey, it is not that conviction or sentence which is challenged here today. Rather, Appellant challenges the sentence imposed for his conviction of raping Connie Lou Jones. Appellant’s rape of Jones was not a capital offense and thus KRS 532.030(1) would have no bearing on Appellant’s case were he tried and convicted of that crime today. In fact, if Appellant were to be tried and convicted today for Jones’ rape, he could not be sentenced to life without the possibility of parole.
In the process of amending KRS 532.030(1), the legislature clearly contemplated the question of which crimes merit the imposition of a sentence of life without the possibility of parole. Its decision not to reauthorize such a sentence for rape indicates that the notion is as objectionable today as it was in 1975 when that sentence was repealed. This, when combined with the fact that 45 of the 55 men ever denied the possibility of parole for the crime of rape have since had their sentences commuted to life with the possibility of parole, leads me to conclude that in the 20 years which have passed since the appropriateness of this punishment was last considered by this Court, today’s standards of decency have evolved and, therefore, the sentence is no longer constitutionally sound.
LAMBERT, C.J., joins.