minimum of seventy months to life. U.S.S.G. §§ 2A1.1-2A1.3; § 2H1.3. This substantial difference in outcomes would certainly affect any rehabilitative prospects adversely.
Second, in accordance with the fundamental policy upon which this 1974 law rests, Congress recognized that the States had far greater experience in dealing with juvenile crime and were far better able to provide juvenile rehabilitative services than the federal government. See Juvenile Justice and Delinquency prevention Act of 1974, 1974 U.S.C.C.A.N. 5283 ("While [juvenile crime] is essentially a State and local problem which must be dealt with by the State and local governments, Federal assistance is very necessary to provide needed financial assistance and resources."). The purpose of the Juvenile Justice and Delinquency Prevention Act was to "provide federal leadership and coordination of the resources necessary to develop and implement at the State and local community level effective programs for the prevention and treatment of juvenile delinquency." 1974 U.S.C.C.A.N. 5283. Thus, the lack of availability of appropriate programs in state facilities is an argument for retention of the case in the federal system, see 18 U.S.C. § 5032, P1(2), not an argument for transfer to adult status. The statutory policy requires that a lack of availability of appropriate programs in the state system should lead to a search for an appropriate program in the federal system.
Such a program does exist in which Nelson, if convicted, would spend five years in a secure facility which could provide him with counseling, therapy, as well as educational opportunities. Consequently, regardless of Nelson's age, there is an available program appropriate to his needs, even if he is convicted as a juvenile. Accordingly, this factor does not favor transfer to adult status.
(6) Past Treatment Efforts
Finally, before addressing the critical issue of potential for rehabilitation, mention must be made of the fifth statutory factor, past treatment efforts and their success or lack of effectiveness.
As far as this court is aware, the only psychological assistance Nelson has received since the event in 1991 was minimal counseling while under arrest in the New York state case. Prior to 1991, the only counseling that Nelson had received was in school. Even Dr. Berrill, the government's expert, noted that this effort was "short lived." Berrill's Report at 16. This past treatment effort was "desultory," and the record is devoid of any real program which provided appropriate therapy or an adequate support structure. See United States v. Juvenile Male # 1, 47 F.3d 68, 70 (2d Cir. 1995) (allowing the district court to weigh this factor, the lack of prior treatment, and the background of the defendant (factor two) more heavily than the seriousness of the offense and his prior record). Clearly, then, this factor provides no support for treating Nelson as an adult. The factor is a neutral one although one might well argue that, in light of the statutory policy favoring rehabilitation, there should be a presumption that the absence of any treatment efforts should favor an attempt at rehabilitation.
Prospects for Rehabilitation
All of the statutory factors, with the exception of the second, the seriousness of the offense, ultimately directly impact on the critical question of the prospects for the defendant's rehabilitation. This issue, therefore, deserves separate treatment.
The government has entered into evidence the defendant's plea agreement in the Georgia case, in which Nelson was convicted, as an adult, of aggravated assault for cutting the victim's jacket and skin with a razor blade, on January 14, 1994, and carrying a concealed weapon, a scalpel, on March 5, 1994. It has also entered into evidence a charge of resisting arrest in New York City on June 23, 1995, and judicial notice has been taken of the most recent charge of criminal trespass on February 8, 1996.
Both psychologists administered tests which, among other things, attempt to predict the probability of recidivism. Dr. Berrill's test results stated that Nelson had a "below average probability of success; tendency toward violent crime." As previously mentioned, this court does not understand what the "average probability of success" is, Gov't Ex. 4 at 3, but will assume it to be "poor." Hearing Tr. at 94. Dr. Landsmark's similar test concluded that thirty-three percent of the individuals in Nelson's psychological type were not reconvicted in a four year post release survey. Hearing Tr. at 200-01; Def's Ex. D. While Dr. Landsmark did not characterize this figure, I view this result as indicative of a substantial potential for rehabilitation.
Both psychologists also testified as to the prospects for rehabilitation. Dr. Berrill testified that the prognosis for rehabilitation is "guarded," especially since Nelson does not feel that he needs treatment. Hearing Tr. at 38-39.
Prognosis is really very guarded. Folks in this profile . . . having been convicted of a violent crime . . . [and] having anti-social behavior features. Basically, when you speak to folks like [this] they don't think anything is wrong with them, they think their behavior is perfectly fine, it's everybody else's problem; that the police caught them, that's the problem, or it was just bad luck that they are in the situation that they are in. Internally, they don't feel tremendous distress about who they are. They feel ultimately almost rather comfortable with that, so it's hard to jar someone out of that place . . . Id.
Still, he did not conclude that rehabilitation was impossible. Hearing Tr. at 39.
Dr. Landsmark was also concerned by the fact that Nelson had created a pattern of anti-social actions rather than having just one isolated act. However, contrary to Dr. Berrill's opinion, she was firm in her opinion that Nelson did not have an anti-social personality disorder, but rather only exhibited these features at times. Hearing Tr. at 186. Moreover, Dr. Landsmark was optimistic that with treatment, Nelson could be helped. Specifically, she noted that "he has strengths that make it probable that he could [be rehabilitated] . . . His prognosis, in my opinion was fair to good." Hearing Tr. at 211-12.
Furthermore, according to Dr. Landsmark, Hearing Tr. at 248, Nelson's subsequent arrests are part of a consistent pattern, which began with the incident in this Information. They are indications that he is one in need of help, who has received no help, rather than a sign that he cannot be rehabilitated:
[The fact that Nelson has been convicted in Georgia and charged with resisting arrest] doesn't surprise me, because as far as I know, this kid still needs help and nothing has happened intervening to change the way in which he has tried to solve the problems that he thinks he faces. So, I'm not surprised. . . . I still compare him with the population of kids that I work with, what they call the throwaway kids, who nobody wants, who has had more assistance than he seems to have had, and many of them have made it, all right? It's a matter of will, a matter of what you want. I believe this guy wants it. . . . When I knew him, he wanted the things that we say are values that we adhere to in this culture that we want; that are to be reached for. . . . Hearing Tr. at 248.