dissenting.
Respectfully, I dissent.
Our Court has elected to grant comity to a new law that effects substantial changes in judicial procedure. These changes are poorly conceived and constitutionally flawed.
The Majority Opinion agrees to these changes under the principle of comity. “Comity” means, by definition, judicial adoption “not as a matter of obligation, but out of deference and respect.” Black’s Law Dictionary, p. 242, “Judicial Comity,” (5th ed. 1979). When we do this, it is not the General Assembly but our Court that has spawned this new sentencing system. Our Court, not the General Assembly, must bear the responsibility for its future consequences.
The Majority Opinion states, and I agree, that “KRS 532.055 is a legislative attempt to invade the rule making prerogative of the Supreme Court,” and that “it violates the separation of powers doctrine enunciated in § 28 of the Kentucky Constitution.” Constitutionally this statute is utterly without lawful effect, but we give it life through comity. This “comity” is “A Comity of Errors.” Our Court should know, even if the General Assembly did not, that the name assigned to the bill by its proponents, “Truth-in-Sentencing,” is a euphemism. In practice we are adopting a system of “Half-Truths-in-Sentencing.”
The new Judicial Article enacted in 1975 entrusted the Supreme Court, not the General Assembly, with exclusive power to prescribe “rules of practice and procedure for the Court of Justice” such as the General Assembly set up in the sweeping changes enacted by KRS 532.055. See Ky. Const. § 116. With the power to act goes full responsibility for the action taken. It is our Court, not the General Assembly, that has made KRS 532.055 the law of this Commonwealth. In doing so we have disregarded the carefully thought-out policies and practices that our Court usually follows before adopting any major change in the Rules of Criminal Procedure, including study by a select committee of the bench and bar, and public hearing before the Kentucky Bar Association. We have bypassed the safeguards that would have been provided by study of these new procedures by professionals, and embraced in their stead the very forces of precipitous change that the new Judicial Article was designed to defuse.
It takes no visionary to foretell that the new sentencing procedure will (1) produce sentences that are, in many cases, unduly harsh and abusive, (2) fatally overload an already overcrowded prison system, and (3) exacerbate the problem of disparate sentencing. The impending calamity to our sentencing system (it will be no less) is not just likely, it is inevitable. It will take years of effort to correct the mischief we have done this day, if indeed correction will ever be possible. The Majority opines that we “reserve the right to correct in the future” any “abuses or injustices,” but correction will come too little and too late for those who suffer in the meantime.
In this Dissenting Opinion I will confront some of these abuses and injustices, and some of the legal flaws, but certainly not all. There will be others that do not jump out at the reader of this statute as obviously as the ones I address. I will address these problems, not in the order of their importance, but in the same order as they come forward in the statutory language.
I.
“THE JURY SHALL RECOMMEND WHETHER THE SENTENCES SHALL BE SERVED CONCURRENTLY OR CONSECUTIVELY.” KRS 532.055(2).
This statement conflicts with KRS 532.-110 and RCr 11.04. Presently the law places responsibility for deciding whether sentences should be served consecutively or concurrently with the judge. The power of the judge to decide the problem of consecutive or concurrent sentencing is an important tool available to the court to prevent disparate sentencing. It will be foreclosed, or at least significantly impaired, by the statutory change. The reason for *800granting comity to the statute in this instance escapes me.
If the effect of this provision in practice proves out to be the effect obviously intended, producing consecutive sentencing, we can anticipate rapid acceleration of the overcrowding that has already occurred in our prisons. We can anticipate extended warehousing of nonviolent criminals. This problem will increase by geometric progression because of § 1 of the new “Truth-In-Sentencing” law, now codified as KRS 439.3401, which prescribes a future minimum parole eligibility of “at least fifty percent (50%) of the sentence imposed” for certain Class A and Class B felonies.
The time is long overdue for our General Assembly to dump our present unwieldy and unworkable parole system in favor of a new system of penalties which (1) provides for reasonable maximum sentencing limits in the first instance, (2) abolishes parole, and (3) requires those whom the judge does not probate to serve the sentence imposed.1 It is the parole system more than anything else that has destroyed credibility and public confidence in criminal sentencing. But the Band-Aid approach adopted by the General Assembly will only continue to make matters worse. Of course, it is impossible to discuss the details of a proper sentencing system within the confines of this Dissent. It suffices to say that the changes wrought by the “Truth-In-Sentencing” law will undoubtedly make matters worse.
II.
THE COMMONWEALTH IS PERMITTED TO INTRODUCE EVIDENCE OF “MINIMUM PAROLE ELIGIBILITY.” KRS 532.055(2)(a)(l).
What will the Commonwealth tell the jury about minimum parole eligibility? In our present sentencing system, at the point where a convicted offender is turned over to the Department of Corrections, the power to determine the period of incarceration passes completely to the Parole Board. KRS 439.340. This means that “an offender could conceivably be released from custody immediately after imposition of sentence.” See Commentary to KRS 532.060. Although the Parole Board has promulgated an administrative regulation which establishes a schedule for parole eligibility, “[t]o this schedule, however, the board added the qualification that it could ‘review the case of any inmate for parole consideration prior to his eligibility date if it appears advisable to do so.’ Kentucky Parole Board Reg. DC-Rg-6(8). Thus, at least from a theoretical viewpoint, we [have] in Kentucky an indeterminate sentence with a maximum term that [is] fixed by the jury and no minimum term.” Commentary to KRS 532.060. [Emphasis omitted].
There is no way to comprehensibly convey to the jury all of the conflicting possibilities that surround parole eligibility. It beggars the imagination to visualize the examination and cross-examination of the “experts” who will testify to provide this information. The prospect of confusion and “half-truths” is inevitable.
III.
THE COMMONWEALTH WILL BE PERMITTED TO INTRODUCE EVIDENCE REGARDING “PRIOR CONVICTIONS OF DEFENDANT, BOTH FELONY AND MISDEMEANOR.” KRS 532.055(2)(a)(l).
Considering misdemeanors as well as felonies is a profound change, a dramatic step. Misdemeanors differ from felonies not only in punishment, but often in the nature of the crime. Many misdemeanors are only mala prohibita and not malum in se. Occasionally misdemeanors are pled to as a matter of convenience rather than an admission of guilt. Often safeguards applicable to a felony conviction are not utilized. In short, admitting evidence of this type, as with parole eligibility, has a great potential for producing “half-truths.”
The new statute has no time limitation on use of a prior offense, felony or misdemeanor. It offers the trial court no discretion regarding admissibility. Thus convictions that are twenty years old, or more, that normally would be barred by the trial judge as irrelevant under present decisions *801regarding appropriate use of prior felony convictions for impeachment, are apparently admissible.
This piling up of prior convictions serves no purpose except to provide evidence that will be utilized by the jury to enhance the sentence. It will exacerbate the problems regarding extended warehousing of criminals referred to in Section I above.
Although this use parallels in some respects present use of prior convictions in a persistent felony offender hearing, KRS 532.080, the statute provides none of the safeguards that exist in the persistent felo-iiy statute, or in the decisions of our Court relating thereto. For instance, what about the right to challenge prior convictions as set out in Commonwealth v. Gadd, Ky., 665 S.W.2d 915 (1984)? What about the fact that this statute does not require a finding of fact concerning the existence of prior convictions, whereas the PFO statute does? What about the extraordinary time that must be expended if the right to pretrial discovery regarding prior convictions, felonies and misdemeanors, is to be safeguarded by inquiry regarding their validity?
IV.
THE COMMONWEALTH WILL BE PERMITTED TO OFFER EVIDENCE REGARDING THE “NATURE OF PRIOR OFFENSES.” KRS 532.-055(2)(a)(2).
The “nature of prior offenses” is a much broader term than present limitations applicable to the use of prior felonies in PFO proceedings. At present, evidence is limited to designating the offense involved, but none of the details of the nature of the prior offense are admitted. Evidence of the “nature” of a prior offense calls for reconsideration of the evidence from the previous case. We can expect nothing less than complete review because of subsection (2)(b) which permits the defendant to introduce “evidence which negates any evidence introduced by the Commonwealth.” Thus, both sides will be indulged at length on the “nature” of a prior offense.
This evidence requirement in subsection (2)(b) generates a subsidiary issue of considerable consequence: is this limited only to evidence that directly contradicts the evidence offered by the Commonwealth regarding previous offenses, or does “negate” mean to “mitigate”? Is the defendant entitled to introduce any evidence available regarding his background, i.e., the social, psychological, employment, family, and other factors motivating his behavior which serve indirectly to offset or “negate” evidence of prior offenses? It is a rule of longstanding that a criminal statute subject to more than one interpretation must be interpreted in favor of the defendant. This is the “rule of lenity.” Roney v. Commonwealth, Ky., 695 S.W.2d 863 (1985). Under this rule the defendant rightfully should be entitled to introduce any evidence of a “nature” tending to negate the effect of the evidence of prior convictions that has been introduced against him.
This is a sentencing hearing to determine punishment within the range provided by statute. It is a rule of constitutional magnitude that in such a hearing, once the door is open to extrinsic evidence, i.e., evidence in aggravation or mitigation other than proof relating to the crime for which he stands convicted, that the defendant has a right to go beyond evidence that simply contradicts the Commonwealth’s evidence. See Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967). Unlike a PFO proceeding, wherein no evidence is introduced regarding the “nature” of the offense, in the expanded circumstances now presented any effort to limit the defendant’s presentation of negating evidence, direct or indirect, has serious Due Process implications. See Specht, supra.
V.
THE COMMONWEALTH WILL BE PERMITTED TO INTRODUCE EVIDENCE REGARDING THE “MAXIMUM EXPIRATION OF SENTENCE AS DETERMINED BY THE DIVISION OF PROBATION AND PAROLE FOR ... CURRENT AND PRIOR OFFENSES.” KRS 532.-055(2)(a)(4).
As used in this proviso, the word “current” seemingly applies to the present of*802fense for which the defendant stands convicted. Under this proviso, and the one discussed above in Section II (evidence of minimum parole eligibility), using the pretext of comity, we have abandoned a long line of cases recognizing that it is prejudicial error to inform the jury about the possibility of parole. See Payne v. Commonwealth, Ky., 623 S.W.2d 867 (1981); Broyles v. Commonwealth, Ky., 267 S.W.2d 73 (1954); Boyle v. Commonwealth, Ky.App., 694 S.W.2d 711 (1985); and cases cited therein:
“... the subject of parole' is not to be given any consideration by them [the jury] in determining innocence, guilt, or punishment.” Boyle, supra at 712.
Or, as stated in Payne:
“The consideration of future consequences such as ... parole have no place in the jury’s finding of fact and may serve to distort it. For that reason we now hold that neither the prosecutor, defense counsel, nor the court may make any comment about the consequences of a particular verdict at any time during a criminal trial.” 623 S.W.2d at 870.
We have substituted for this rule a new system in which consideration of the possibility of parole, uncertain as it is, will be central to imposing sentence. Although the time of release on parole is necessarily unknown and unknowable at the time of sentencing, we will introduce evidence that strongly suggests otherwise.
With a single hastily conceived stroke of the pen we will discard our previous jurisprudence to invite speculation about the possibility of parole as a central factor in the jury’s yardstick to use in deciding an appropriate punishment. The legal reasoning underlying our previous decisions holding such evidence irrelevant, inflammatory, and prejudicially erroneous, is overturned without suitable explanation, and largely without comment. In its place we substitute a new approach based on half-truths and speculation.
As stated in 16 A.L.R.3d 1137, at p. 1141: “As to the sentence, the prejudice [from information about the ‘possibility of parole’] operates by urging the jury to impose an excessive punishment in order to compensate for or protect against the action of the pardoning or paroling authority.”
VI.
“ALL HEARINGS HELD PURSUANT TO THIS SECTION SHALL BE COMBINED WITH ANY HEARING PROVIDED FOR BY KRS 532.080” (THE PERSISTENT FELONY OFFENDER HEARING.) KRS 532.055(3).
This scenario presents a variety of problems of insolvable complexity:
(a) As set out above, limitations on evidence admissible to prove previous convictions under the PFO statute are in direct conflict with the evidence regarding these previous felonies that will be permissible under the new statute:
(1) The “nature” of the prior conviction is not admissible in a PFO proceeding.
(2) Evidence regarding parole is not permissible in a PFO proceeding.
(3) The PFO statute requires a finding of fact by the jury that the proof is sufficient to establish the previous conviction(s).
(4) The PFO statute contemplates that a sentence must first be set for the underlying offense before any evidence is received regarding prior offenses.
(5) When a jury finds an accused guilty as a PFO but is unable to agree on the proper punishment, the judge may not impose the punishment. Commonwealth v. Crooks, Ky., 655 S.W.2d 475 (1983).
As a practical matter it is impossible to follow the statutes and decisions applicable to the PFO procedure and the provisions of the new statutes in a single proceeding, because they are in direct conflict.
b) The majority decision proposes that “the jury in the combined bifurcated hearing could be instructed to (1) fix a penalty on the basic charge in the indictment; (2) determine then whether the defendant is guilty as a persistent felony offender, and if so; (3) fix the enhanced penalty as a persistent felony offender.” The practical *803effect of this is inherently abusive. The jury hears, at the same time, evidence that is now permissible in setting a sentence for the underlying offense but which is improper for deciding (a) whether a person is guilty as a PFO, and (b) if so, the proper enhanced penalty as a PFO.
There is no practical way that the jury can compartmentalize this information so as to avoid prejudice in all three decisions: the penalty for the underlying offense, the determination of guilt as a PFO, and the enhanced penalty. The same evidence will be used over and over again with the result that the penalty for the underlying offense will be greater, the determination of guilt as a PFO offender will be prejudiced, and the enhanced penalty as a PFO will be further increased. The multiple enhancement effect of the suggested hearing is so fraught with prejudice that it should be considered fundamentally offensive to the concept of justice.
Our present system contemplates that a jury shall decide the punishment for the offense for which the defendant has been convicted on the basis of the evidence that relates to the nature of this offense. Even Gilbert and Sullivan’s Mikado had sufficient inherent sense of justice to demand that “the punishment fit the crime.” No person, however bad his past record, should receive a punishment greater than the punishment that fits the crime. Our present system contemplates that only after a jury has set a punishment that fits the crime, shall the jury hear evidence of previous offenses. The judge orders a Pre-sentence Report providing information similar to that which will now be heard by the jury only after the jury has fixed the punishment, before imposing sentence, and then uses that Presentence Report only in deciding whether the sentence imposed should be probated or the punishment imposed should be mitigated. KRS 532.050; KRS 532.040; KRS 532.070.
“The report shall be prepared and presented by a probation officer and shall include an analysis of the defendant’s history of delinquency or criminality, physical and mental condition, family situation and background, economic status, education, occupation, personal habits, and any other matters that the court directs to be included.” KRS 532.050(2).
Either the present statute is intended as a substitute for our existing procedures, or it isn’t. If it is, the jury will be deprived of much of the information that is presently included in a Presentence Report, and, indeed much of that information could not be presented in a form admissible under the rules of evidence. The concept that the jury will now do something beyond setting a punishment to fit the crime, which is inherent in the new method for jury sentencing established by KRS 532.055, is simply unworkable. If the defendant cannot present other evidence that may qualify him to leniency coextensive with the range of information provided by a Presentence Report, his rights have been seriously prejudiced. On the other hand, if the defendant is permitted to present other evidence that may qualify him for leniency, the proceedings will become so lengthy and complex as to destroy the system. The problems presented here are not imaginary, they are inherent in the present statutory scheme that we have embraced by way of comity.
In summary, under the new scheme the jury will use the same evidence to enhance punishment three times.
1) The extrinsic evidence of other offenses will be used by the jury in setting the original sentence, rather than, as is presently the case, limiting the evidence to that which relates to the crime for which the jury has convicted.
2) In deciding whether a defendant is guilty of being a persistent felony offender, evidence of “other offenses, felonies and misdemeanors,” which would not be relevant to determining guilt as a PFO, will be presented to the jury to utilize in deciding that question.
3) This evidence of other offenses not involved in the PFO charge will also be utilized in fixing the enhanced penalty as a persistent felony offender.
Recently, in Musselman v. Commonwealth, Ky., 705 S.W.2d 476 (1986), a ma*804jority of our Court had the courage to invalidate on constitutional grounds a portion of the harassment statute, KRS 525.-070(l)(b). We stated that, “[a]s written the statute is unconstitutionally vague and overbroad,” and “[w]e reject the argument that a criminal statute facially unconstitutional can be ‘authoritatively construed’ by the courts to render it constitutional ...” 705 S.W.2d at 477-78. We cited Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983), holding that a “loitering statute was unconstitutionally vague on its face within the meaning of the Due Process Clause of the Fourteenth Amendment.” 705 S.W.2d at 478. See also Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), holding that a statute allowing the death penalty upon proof that the murder was “outrageously or wantonly vile, horrible and inhuman,” was void for vagueness.
However, I need not, and do not, rest the case against the present statute as unconstitutionally and impermissibly vague on these federal cases. The Bill of Rights in our Kentucky constitution, § 2, guarantees citizens of the State of Kentucky procedural due process, stating:
“Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.”
A statute calling for, nay demanding: (1) evidence speculating on the possibility of parole; (2) evidence regarding stale and archaic (and therefore irrelevant) prior convictions for “felonies and misdemeanors” and the “nature” thereof; and (3) a single combined sentencing hearing to consider both the initial sentence and the PFO phase, is an obvious and flagrant violation of our Bill of Rights, § 2. It is an exercise of arbitrary power and a denial of due process and it should have been struck down as such, much less enacted into law by our grant of comity when the General Assembly is admittedly powerless to mandate such judicial procedures.
We have legitimized the exercise of arbitrary power over the lives and liberty of freemen, which is expressly forbidden by § 2 of our Kentucky Constitution. As recently as Kentucky Milk Marketing v. Kroger Co., Ky., 691 S.W.2d 893 (1985), our Court reaffirmed the power of “Section 2 of our Constitution” in these words:
“Section 2 is broad enough to embrace the traditional concepts of both due process of law and equal protection of the law.” Id. at 899.
In that case we held that “the Kentucky Milk Marketing law, on its face, and in its enforcement by the Commission ... is vio-lative of Section 2 of the Kentucky Constitution.” Id. I continue to subscribe to the rationale of the decision in the Kentucky Milk Marketing case, and I urge its application in the present circumstances.
Finally, the appellee, Reneer makes a sound argument to the effect that, in any event, the application of the new sentencing procedure to him would violate prohibitions against ex post facto laws found in Article I, Section 9 of the United States Constitution and in Section 19 of the Kentucky Constitution.
Reneer’s alleged offense was committed before the effective date of the new statute. The new statute calls for important new evidence bearing on the question of sentencing, relating both to prior offenses (felonies and misdemeanors) and the subject of parole, all of which will be introduced by the prosecutor solely for the purpose of obtaining a more severe sentence, which evidence could not have been utilized against him before.
The question which is critical in determining whether there is an ex post facto violation is whether the statute will “aggravate any crime heretofore committed” or “provide a greater punishment therefor than was prescribed at the time of its commission.” Hopt v. Utah, 110 U.S. 574, 589, 4 S.Ct. 202, 28 L.Ed. 262 (1884). There can be no question but that the evidence of past offenses that would have been introduced against Reneer under the new law would have adversely affected the assessment of punishment which Reneer would *805have received for the underlying offense, had it been applied.2
In Miller v. Florida, 482 U.S. —, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987), Florida’s newly enacted statutory sentencing guidelines were held unconstitutionally applied to an offense committed before the statute’s effective date, in violation of the ex post facto clause of Article I of the Federal Constitution. The United States Supreme Court held that the revised guidelines law was “more onerous” than the law in effect at the time of the petitioner’s crimes. Miller v. Florida cites an earlier United States Supreme Court decision in Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) to the effect that “[a] law is retrospective if it ‘changes the legal consequences of acts completed before its effective date.’ ” Miller, 482 U.S. at —, 107 S.Ct. at 2451, 96 L.Ed.2d at 360. That is specifically the intended result if and when the new sentencing procedure, and the new evidence that will be utilized under it, are applied in trial of crimes committed before the effective date of our new law.
The majority opinion cites Murphy v. Commonwealth, Ky., 652 S.W.2d 69 (1983) as authority against application of the ex post facto principle. However, the Murphy case is inapposite. The Murphy case did not involve introducing additional evidence adverse to the accused. The sole issue was whether the defendant was entitled to an instruction to the effect that he could not be convicted on the testimony of an accomplice unless supported by other substantial evidence tending to connect him to the commission of the offense. The record reflected substantial circumstantial evidence, albeit conflicting, that corroborated the accomplice’s testimony which implicated Murphy. Unlike present circumstances, the Murphy case did not turn on the utilization of additional evidence, but on the strength of the evidence necessary to convict. The change abolishing the requirement of a so-called accomplice instruction was held merely procedural, and not subject to protection against ex post facto rules. The law is that “if the change effected is merely procedural” and does not affect “any substantial right” the ex post facto clause is not implicated. Kring v. Missouri, 107 U.S. 221, 232, 2 S.Ct. 443, 452, 27 L.Ed. 506 (1883). In my judgment no one can justly say that the present law is merely procedural and without substantive effect.
In People v. Ramos, 37 Cal.3d 136, 207 Cal.Rptr. 800, 689 P.2d 430 (1984), at issue was a law requiring the trial court to instruct the jury in a capital murder case that one of the sentencing options, a sentence of life without possibility of parole, is subject to the Governor’s power of commutation. In resolving the issue against constitutionality, based solely on state constitutional guarantees, the court states that the statute “is a classic example of a misleading ‘half-truth.’ ” 689 P.2d at 440.
“Viewed realistically and in context, the instruction provides the jury with seriously misleading information.” Id.
The statute presently under consideration, KRS 532.055, presents problems far more serious than the problem in the Ramos case. It involves a piling up and a piling on of evidence of “half-truths.” It invites the use of evidence that will necessarily be misleading and confusing. It invites the use of archaic convictions for both felonies and misdemeanors which are no longer relevant if they ever were. It introduces a new system combining in one sentencing hearing both initial sentencing for the underlying offense and conviction and sentence as a persistent felony offender, a system that will necessarily involve the improper and prejudicial overlapping multiple use of the same evidence for what should be separate purposes. The new statute is surely one that qualifies as a cure worse than the disease.
LAMBERT, J., joins in this dissent.
. There would, of course, still need to be some provision for time off the sentence imposed for good behavior while in prison, to provide an incentive not to attack the guards.
. Reneer was found not guilty thereby eliminating the necessity for trial els a persistent felony offender, so we need not discuss applicability of ex post facto prohibitions to this phase of his case.