HARSHBARGER, Justice:
In this original proceeding in habeas corpus, the relator, Tammy Denise Flack, challenges the validity of the sentence imposed upon her by the Circuit Court of Raleigh County that resulted in her imprisonment at the Federal Correctional Institution at Alderson for an indeterminate term of one to ten years. She posits that her sentence violates her equal protection rights under the federal and state constitutions.
On December 21, 1983, Flack, then twenty years old, was sentenced to prison for not less than one nor more than ten years upon her guilty plea to uttering a forged check, a felony. W.Va.Code, 61-4-5. The circuit court delayed imposition of sentence until after the Christmas holidays, however, and her lawyer requested reconsideration of the sentence, both orally at the sentencing hearing and by written motion filed on December 23, 1983. The written motion requested that in lieu of imprisonment, Ms. Flack be sentenced to probation or be assigned to a center for youthful offenders pursuant to W.Va.Code, 25-4-1,
et seq.
(1980 Replacement Vol. and 1984 Cum.Supp.). By order entered December 27, 1983, the court took the motion for reconsideration of sentence under advisement and ordered Flack to jail pending transfer to a penal facility.
The court apparently did not act on the motion for reconsideration, and on January 4, 1984, she was transferred to Alderson to begin serving her sentence.
On February 8, she made a pro se motion for reduction of sentence, summarily denied because “no substantial change has been made in the circumstances of the [relator].”
Ms. Flack’s petition for a writ of habeas corpus was filed here on March 19, and on the 28th, a writ, directed to respondent Gwynne Sizer, Warden of the Alderson facility, was issued. By order entered May 8, we permitted W. Joseph McCoy, Commissioner of the Department of Corrections, to
be joined as an additional respondent.
Is W.Va.Code, 25-4-1,
et seq.,
commonly called the Youthful Male Offender Act, constitutional? The relevant part of the Act provides that a trial judge may suspend imposition of the sentence of any male between the ages of sixteen and twenty-one who has been convicted of a crime not punishable by life imprisonment and may instead assign him to a youthful offender center for treatment for a period of from six months to two years. W.Va.Code, 25-4-6.
It provides a sentencing alternative to close confinement for young men who, by virtue of their youth and background and of the nature of their crimes, are likely to benefit from the rehabilitative atmosphere of a detention center.
State v. Hersman,
161 W.Va. 371, 242 S.E.2d 559 (1978).
W.Va.Code, 25-4-1,
et seq.,
is, by its very terms, applicable only to male offenders who satisfy the eligibility requirements. The State admits that the relator would have been eligible to be considered a youthful offender for purposes of sentencing but for the fact that she is female.
Statutory classifications which distinguish between males and females are subject to scrutiny under both the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States and the guarantee of equal protection embodied in Article III, Section 17 of the West Virginia Constitution. “To withstand scrutiny under the Equal Protection Clause, ‘classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.’ (Footnote omitted.)”
Peters v. Narick,
165 W.Va. 622, 270 S.E.2d 760, 762 (1980),
quoting Craig v. Boren,
429 U.S. 190, 197, 97 5.Ct. 451, 457, 50 L.Ed.2d 397, 407 (1976),
reh. denied,
429 U.S. 1124, 97 S.Ct. 1161, 51 L.Ed.2d 574 (1977), which sets the federal rule.
The standard of scrutiny under our state constitution is much stricter.
Gender-based classifications challenged as denying the right to equal protection guaranteed by Article III, Section 17 of the West Virginia Constitution are to be regarded as suspect, accorded the strictest possible judicial scrutiny, and are to be sustained only if the State can demonstrate a compelling interest to justify the classification.
Syllabus Point 2,
Peters v. Narick, supra.
The State admits it can forward neither an important governmental objective nor a compelling State interest that is furthered by denial of youthful offender status to females for sentencing purposes.
Nor can we perceive any legitimate justification for such discrimination. Indeed, the State’s interest in rehabilitation of criminal offenders would appear to be perfectly compatible with allowing qualified females the opportunity to be sentenced as youthful offenders.
We must conclude that W.Va. Code, 25-4-1,
et seq.,
denies equal protection of law to females under both the federal and state constitutions.
"This office has conferred with the court below and the prosecuting attorney of Raleigh County, neither of whom take issue with the position that the statute, as written, is discriminatory. After conferring with the Department of Corrections, counsel is unable to discern any compelling or rational basis for providing youthful offender sentencing only to males that is clearly related to the rehabilitation goals of the statute.”
This conclusion does not require invalidation of the provisions of the Youthful Male Offender Act. As we noted in
Peters v. Narick, supra,
165 W.Va. at 635, 270 S.E.2d at 767:
Where a statute is defective because of under-inclusion there exist two remedial alternatives: a court may either declare it a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by its exclusion.
Welsh v. United States,
398 U.S. 333, 361, 90 S.Ct. 1792, 1807-08, 26 L.Ed.2d 308, 331 (1970).
“Choosing between invalidation or neutral extension requires an ascertainment of the predominate legislative purpose underlying the statute’s enactment.”
Peters v. Narick, supra
at 767,
citing Beal v. Beal,
388 A.2d 72 (Me.1978). The primary purpose of the act is rehabilitative, offering a second chance to offenders who, because of their youth and background, are likely candidates ^or reformation. W.Va. Code, 25-4-1;
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HARSHBARGER, Justice:
In this original proceeding in habeas corpus, the relator, Tammy Denise Flack, challenges the validity of the sentence imposed upon her by the Circuit Court of Raleigh County that resulted in her imprisonment at the Federal Correctional Institution at Alderson for an indeterminate term of one to ten years. She posits that her sentence violates her equal protection rights under the federal and state constitutions.
On December 21, 1983, Flack, then twenty years old, was sentenced to prison for not less than one nor more than ten years upon her guilty plea to uttering a forged check, a felony. W.Va.Code, 61-4-5. The circuit court delayed imposition of sentence until after the Christmas holidays, however, and her lawyer requested reconsideration of the sentence, both orally at the sentencing hearing and by written motion filed on December 23, 1983. The written motion requested that in lieu of imprisonment, Ms. Flack be sentenced to probation or be assigned to a center for youthful offenders pursuant to W.Va.Code, 25-4-1,
et seq.
(1980 Replacement Vol. and 1984 Cum.Supp.). By order entered December 27, 1983, the court took the motion for reconsideration of sentence under advisement and ordered Flack to jail pending transfer to a penal facility.
The court apparently did not act on the motion for reconsideration, and on January 4, 1984, she was transferred to Alderson to begin serving her sentence.
On February 8, she made a pro se motion for reduction of sentence, summarily denied because “no substantial change has been made in the circumstances of the [relator].”
Ms. Flack’s petition for a writ of habeas corpus was filed here on March 19, and on the 28th, a writ, directed to respondent Gwynne Sizer, Warden of the Alderson facility, was issued. By order entered May 8, we permitted W. Joseph McCoy, Commissioner of the Department of Corrections, to
be joined as an additional respondent.
Is W.Va.Code, 25-4-1,
et seq.,
commonly called the Youthful Male Offender Act, constitutional? The relevant part of the Act provides that a trial judge may suspend imposition of the sentence of any male between the ages of sixteen and twenty-one who has been convicted of a crime not punishable by life imprisonment and may instead assign him to a youthful offender center for treatment for a period of from six months to two years. W.Va.Code, 25-4-6.
It provides a sentencing alternative to close confinement for young men who, by virtue of their youth and background and of the nature of their crimes, are likely to benefit from the rehabilitative atmosphere of a detention center.
State v. Hersman,
161 W.Va. 371, 242 S.E.2d 559 (1978).
W.Va.Code, 25-4-1,
et seq.,
is, by its very terms, applicable only to male offenders who satisfy the eligibility requirements. The State admits that the relator would have been eligible to be considered a youthful offender for purposes of sentencing but for the fact that she is female.
Statutory classifications which distinguish between males and females are subject to scrutiny under both the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States and the guarantee of equal protection embodied in Article III, Section 17 of the West Virginia Constitution. “To withstand scrutiny under the Equal Protection Clause, ‘classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.’ (Footnote omitted.)”
Peters v. Narick,
165 W.Va. 622, 270 S.E.2d 760, 762 (1980),
quoting Craig v. Boren,
429 U.S. 190, 197, 97 5.Ct. 451, 457, 50 L.Ed.2d 397, 407 (1976),
reh. denied,
429 U.S. 1124, 97 S.Ct. 1161, 51 L.Ed.2d 574 (1977), which sets the federal rule.
The standard of scrutiny under our state constitution is much stricter.
Gender-based classifications challenged as denying the right to equal protection guaranteed by Article III, Section 17 of the West Virginia Constitution are to be regarded as suspect, accorded the strictest possible judicial scrutiny, and are to be sustained only if the State can demonstrate a compelling interest to justify the classification.
Syllabus Point 2,
Peters v. Narick, supra.
The State admits it can forward neither an important governmental objective nor a compelling State interest that is furthered by denial of youthful offender status to females for sentencing purposes.
Nor can we perceive any legitimate justification for such discrimination. Indeed, the State’s interest in rehabilitation of criminal offenders would appear to be perfectly compatible with allowing qualified females the opportunity to be sentenced as youthful offenders.
We must conclude that W.Va. Code, 25-4-1,
et seq.,
denies equal protection of law to females under both the federal and state constitutions.
"This office has conferred with the court below and the prosecuting attorney of Raleigh County, neither of whom take issue with the position that the statute, as written, is discriminatory. After conferring with the Department of Corrections, counsel is unable to discern any compelling or rational basis for providing youthful offender sentencing only to males that is clearly related to the rehabilitation goals of the statute.”
This conclusion does not require invalidation of the provisions of the Youthful Male Offender Act. As we noted in
Peters v. Narick, supra,
165 W.Va. at 635, 270 S.E.2d at 767:
Where a statute is defective because of under-inclusion there exist two remedial alternatives: a court may either declare it a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by its exclusion.
Welsh v. United States,
398 U.S. 333, 361, 90 S.Ct. 1792, 1807-08, 26 L.Ed.2d 308, 331 (1970).
“Choosing between invalidation or neutral extension requires an ascertainment of the predominate legislative purpose underlying the statute’s enactment.”
Peters v. Narick, supra
at 767,
citing Beal v. Beal,
388 A.2d 72 (Me.1978). The primary purpose of the act is rehabilitative, offering a second chance to offenders who, because of their youth and background, are likely candidates ^or reformation. W.Va. Code, 25-4-1;
State v. Hersman, supra. See also State ex rel. Simpkins v. Harvey,
172 W.Va. 312, 305 S.E.2d 268 (1983). This laudatory legislative purpose would be thwarted by invalidation of the statute. Accordingly, we conclude that W.Va.Code, 25-4-1,
et seq.,
is to be applied in a gender-neutral fashion that will afford both males and females the opportunity to be sentenced as youthful offenders under its terms. Youthful offender status will henceforth be granted solely on the basis of the offender’s eligibility under the statute and decisions of this Court.
The State contends that even if W.Va. Code, 25-4-1,
et seq.,
violates equal protection as written, Ms. Flack made no timely request to be sentenced as a youthful offender and the lower court never had an opportunity to rule on the issue.
The record shows that her request to be sentenced as a youthful offender was contained in her motion for reconsideration of sentence filed December 23, 1983, taken under advisement by the circuit court by its order entered December 27. The fact that the court took cognizance of her motion undermines the State’s argument.
However, there is no record of any hearing or ruling by the court on the motion for reconsideration of sentence, and, therefore, we are unable to determine whether the relator was in fact unconstitutionally denied youthful offender status solely because of gender. Accordingly, we remand the case to the Circuit Court of Raleigh County with directions to forthwith conduct a hearing and rule on the relator’s motion for reconsideration of sentence, all in accordance with W.Va.Code, 53-4-7 (1981 Replacement Vol.).
Remanded with instructions.