(dissenting).
The effect of the majority opinion is to make eligible for parole two young men who have committed heinous crimes and have subjected their victim to an outrageous indignity. They should be content to serve their life sentences and give thanks that they did not receive the death penalty, which they so richly deserve. Instead, they may now be paroled and turned loose on society to rape and rob again.
I dissent from so much of the majority opinion which holds that the punishment for rape, a life sentence without parole, when applied to fourteen-year-old males is cruel and unusual punishment. The majority opinion is contrary to existing law and is an encroachment on the prerogative of the Legislature.
First, to answer the query in the majority opinion as to why rape is the only offense in this jurisdiction where punishment without benefit of parole may be inflicted: A murderer’s victim does not live in shame —the victim of a rapist may live in shame and horror forever. The punishment was made to fit the offense.
The proposition advanced by the majority opinion that such punishment is cruel and unusual has no foundation in law. No cases are cited in support of it. The cases *379in the majority opinion stand for the proposition that it is the prerogative of the Legislature to fix the punishment for an offense, and when the punishment given by the court is less than the maximum, in this case death, it is not cruel and unusual punishment. The courts “have steadfastly declined to interfere” in this matter of legislative judgment and discretion. Fry v. Commonwealth, 259 Ky. 337, 82 S.W.2d 431; McElwain v. Commonwealth, 289 Ky. 446, 159 S.W.2d 11. In Crutchfield v. Commonwealth, 248 Ky. 704, 59 S.W.2d 983, Rees, C. J., said:
* * * The Legislature is the judge of the adequacy of the penalties necessary to prevent crime, * *
In Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793, 19 Ann.Cas. 705, the Supreme Court declared: “It is a precept of justice that punishment for crime should be graduated and proportioned to offense * * It held that in order to justify a court in declaring any punishment to be cruel and unusual with reference to its duration, it must be so proportioned to the offense committed that it shocks the moral sense of all reasonable men as to what is right and proper under the circumstances. The Legislature in fixing different punishments for the offense of rape may well have had in mind that this law would apply alike to all adults and to all juveniles, fourteen years old and older, who were to be treated as adults.
When the offense here is considered, it shocks one to read the majority opinion and find that the punishment is cruel and unusual. To say that the individuals involved here would not be dangerous or incorrigible or constant threats to society if released is to ignore reality.
At this time the lack of law and order is especially of prime concern. Our courts must bear their share of blame and shame for this condition. See Wedding v. Commonwealth, Ky., 394 S.W.2d 105, and Hall v. Commonwealth, Ky., 429 S.W.2d 359 (decided June 14, 1968). Decisions such as the majority opinion help to create the situation where it is not safe for women to be alone on the streets or even in their homes. Many surveys will be made and many remedies will be suggested. The courts should be the first to honor the responsibility for law and order. Until our courts quit coddling criminals, disobedience and disrespect for law and order will continue.
For these reasons I respectfully dissent.