The opinion of the court was delivered by: Richard Mills, District Judge:
Federal juvenile delinquency.
Government's motion to transfer juvenile to adult status.
Thereafter, on December 6, 1995, the Government filed a
motion to transfer TLW to adult status and a motion to have TLW
obtain a psychiatric evaluation. On the same day, TLW filed a
motion to substitute counsel. On December 12, 1995, the Court
conducted a hearing and new counsel was appointed.
On January 12, 1996, TLW filed a motion stating that he
wanted a full inpatient psychological evaluation. Following a
hearing and proper consent, the Court ordered TLW to be
transported to the Southwest Multi-County Correctional Center
in Dickinson, North Dakota, and that a complete psychological
evaluation be performed. On April 22, 1996, the Court received
the report of the evaluation, and in due course the parties
filed respective memoranda for and against the transfer motion.
On April 29, 1996, the Court conducted a hearing on the motion
in which the Government presented evidence and the Court heard
Because Federal juvenile proceedings are rare, there is
little binding authority interpreting the statute governing
transfer motions, 18 U.S.C. § 5032. But see United States v.
J.J.K., 76 F.3d 870 (7th Cir. 1996) (discussing issues not
relevant to this case). Thus, the Court must address the issues
presented by § 5032 without the aid of Seventh Circuit
In pertinent part, § 5032 states:
Evidence of the following factors shall be
considered, and findings with regard to each
factor shall be made in the record, in assessing
whether a transfer would be in the interest of
justice: the age and social background of the
juvenile; the nature of the alleged offense; the
extent and nature of the juvenile's prior
delinquency record; the juvenile's present
intellectual development and psychological
maturity; the nature of past treatment efforts and
the juvenile's response to such efforts; the
availability of programs designed to treat the
juvenile's behavioral problems. In considering the
nature of the offense, as required by this
paragraph, the court shall consider the extent to
which the juvenile played a leadership role in an
organization, or otherwise influenced other
persons to take part in criminal activities,
involving the use or distribution of controlled
substances or firearms. Such a factor, if found to
exist, shall weigh in favor of a transfer to adult
status, but the absence of this factor shall not
preclude such a transfer.
Unfortunately, § 5032 raises more questions than it provides
answers. For example, what exactly did Congress mean by "in the
interest of justice"? — What is the burden of proof? — Is
there a presumption in favor of maintaining juvenile status? —
Does one or more of the six factors carry more weight? — Does
"prior delinquency record" include arrests or only convictions?
— Should the alleged offense be taken as true or does the
Government need to prove the charged offense? — How far does
the requirement to examine the juvenile's leadership role
extend the definition of "alleged offense"? — Can evidence of
a conspiracy be considered even though conspiracy is not a
Compounding the problem is the fact that the legislative
history to § 5032 is sparse. See United States v. Brian N.,
900 F.2d 218, 221 (10th Cir. 1990) (noting that the legislative
history to — 5032 "is scant and capable of differing
interpretations."). In short, although § 5032 is not
unconstitutionally vague, it is far from precise. Accordingly,
the Court must sail on uncharted waters.
Most other circuits that have addressed the issue, however,
generally decline to prescribe an exact definition or test.
See e.g., United States v. Nelson, 68 F.3d 583, 587 (2nd Cir.
1995). Regardless of how the standard is described, however, it
is clear that whether a transfer is warranted is a case-by-case
determination that strikes a balance between the need to
provide a rehabilitative environment for young offenders on one
hand, and the need to protect society and the need to provide
adequate sanctions for anti-social acts on the other hand.
United States v. Alexander, 695 F.2d 398, 401 (9th Cir. 1982)
(citing United States v. E.K., 471 F. Supp. 924, 932 (D.Or.
Although § 5032 does not expressly mandate a presumption, at
least two circuits maintain that a presumption in favor of
juvenile treatment exists. See United States v. A.R.,
38 F.3d 699, 706 (3rd Cir. 1994) ("[t]he statute clearly intends a
presumption of juvenile treatment."); ...