The Court finds that TLW's entire juvenile record can be
considered, but that it was improper for the Government to
present evidence trying to prove the underlying validity of
some of the juvenile arrests. See United States v. H.S., Jr.,
717 F. Supp. at 916. In other words, the Court should and must
consider the entire record, including reasons for dismissal,
but it is not appropriate to litigate the merits of a previous
arrest at the transfer hearing.
After considering only the appropriate record, the Court
finds that this factor is similar to the first factor, age and
social history, in that it weighs both ways. On one side, there
is a pattern of violence beginning at a very young age. On the
other side, there is the fact that TLW has never been convicted
of a serious offense.
4. Intellectual Development and Psychological Maturity
Because TLW initially tried to manipulate the evaluation
process, the staff at the Southwest Multi-County Correction
Center had difficulty assessing him. Nevertheless, the basic
conclusion of the evaluation report is that TLW is of low
average to average intellectual ability. One of the
psychologists, Dr. Fehr, also concluded that TLW "is clearly
manipulative and probably meets the criteria for a Conduct
Disorder. . . ." Dr. Fehr also noted that TLW's tested mental
age of 12 "is probably lower than his true ability."
The Court concludes that this factor weighs in favor of
juvenile treatment. Although TLW is manipulative, his
intellectual development and psychological maturity would not
seem to preclude rehabilitation.
5. Past Treatment Efforts
Besides some apparent treatment at age 13 following the death
of his grandfather, TLW's only treatment occurred during the
evaluation process in North Dakota. Accordingly, there is no
evidence that TLW has tried and failed in a treatment program.
Moreover, the basic conclusion of the evaluation report is that
TLW "has some capability of possibly being responsive to a
The Court finds that this factor weighs in favor of treatment
as a juvenile.
6. Available Programs
At the hearing, the Probation Office and the Government
presented evidence of possible juvenile treatment programs
available in the Bureau of Prisons. Based upon that evidence
and the evaluation report, the Court finds that appropriate
programs are available, and that this factor weighs in favor of
Because some of the factors weigh in opposite directions, an
analysis of the six factors does not result in a one-sided
decision. Accordingly, striking the balance between
rehabilitation, protection, and punishment is not easy in this
case. Nevertheless, when all six factors are carefully
considered and balanced, the Court finds that it is in the
interest of justice to transfer TLW to adult status.
Specifically, the Court finds that the nature of the offense
coupled with TLW's social history and past juvenile record
mitigates in favor of transfer to adult status.
Ergo, the Government's motion (d/e 12) is ALLOWED.