and a severe lack of empathy. Dr. Rosenfeld explained during his
testimony that while a diagnosis of ASPD did not necessarily suggest
criminal behavior per se because there are plenty of people with ASPD who
do not commit crimes, there is nevertheless a high overlap between ASPD
and criminal behavior. He also testified that his diagnosis of
defendant's ASPD was based in large part on his knowledge of defendant's
past antisocial behaviors, including his prior parole violation, lack of
fidelity to his "common-law" wife, lack of any vocational history or
realistic long-term life plan, and prior criminal behaviors, including
5. Response to Past Treatment Efforts
John Doe had not undergone any psychiatric or psychological treatment
in the past. While on parole he was required to attend a daily, hour-long
drug treatment program and pursue his education. He failed to do both.
6. Availability of Treatment Programs
Dr. Rosenfeld testified that the types of rehabilitative programs he
thought would be most suitable for defendant, i.e., outpatient mental
health treatment, substance abuse treatment and vocational training, were
widely and readily available. He was presumably referring to the general
availability of these programs outside of the prison system.
The government otherwise provided no information about the availability
of either juvenile or adult treatment programs for defendant's behavioral
problems. It did not indicate where defendant might be incarcerated if he
were sentenced as a juvenile, nor did it present any evidence that it had
investigated various juvenile programs but found none of them suitable.
Rather, the government simply asserted that since defendant is now 21
years of age he is ineligible to participate in any juvenile
Analysis of Factors
The following factors weigh against the transfer of John Doe to adult
status: his social background, his present intellectual development and
the availability of programs designed to treat his behavioral problems.
John Doe has clearly had a troubled and impoverished childhood,
punctuated by his parents' drug use and early deaths. The loss of his
relationship with his father, and the ensuing strains on his mother,
undoubtedly contributed to his drift into criminal behavior. Defendant's
low IQ score also disfavors his prosecution as an adult.
In addition, the court finds that since the government did no more than
"merely assert the unavailability of an appropriate [juvenile
rehabilitative] program" for defendant, it failed to carry its burden of
persuading the court that no such programs exist. Nelson I, 68 F.3d at 591
(stating government must "make a showing that it has investigated various
options but is still unable to find a suitable and available program" for
a juvenile's behavioral problems).
The court finds the following factors to be neutral: defendant's age at
the time of the crimes charged in the information and his psychological
maturity. Defendant's alleged commission of the offenses in the
information when he was as young as fifteen, and as old as eighteen,
years of age neither favors nor disfavors transfer.
As to defendant's psychological maturity, the court initially notes its
surprise that defense counsel failed to submit any report or testimony
from the psychologist it was authorized to hire and have examine
defendant. This omission tends to bolster Dr. Rosenfeld's report inasmuch
as it suggests that his opinions were not contradicted by defendant's
Nonetheless, the court finds Dr. Rosenfeld's diagnoses as too
provisional and too reliant on questionable assumptions to be persuasive.
First, even if it is true that defendant's infidelity reflects an
irresponsible or immature personality, such behavior cannot seriously be
considered indicative of a criminally antisocial or
pathological personality. This strains credulity. Second, defendant's lack
of vocational history undoubtedly reflects his poverty as much as it may
reflect a supposed unwillingness to engage in legitimate work. It may
also reflect his difficulty finding work without a high school degree and
burdened with a criminal record. Third, any conclusion about defendant's
psychopathy based on a belief that he continues to use marijuana is
speculative, as Dr. Rosenfeld admitted, at best. Moreover, although
smoking marijuana is criminal, it is not necessarily indicative of
psychopathy and it is certainly not suggestive of violent criminal
recidivism. Fourth, the reliability of defendant's psychological test
results was undermined by Dr. Rosenfeld's admission that the MMPI-2
results were of questionable validity and that the PCL-R assessment was
hindered by a lack of objective information about defendant's past. Dr.
Rosenfeld testified that he was therefore unsure about, and did not even
rate, many of the items on the PCL-R.
Ultimately, the most persuasive evidence supporting Dr. Rosenfeld's
diagnosis of ASPD, as well as his opinion that defendant was unlikely to
benefit from rehabilitation, was defendant's prior parole violation. By
itself, it strongly suggests a likelihood that defendant will benefit
little from further rehabilitative efforts. However, the court is already
obliged to consider defendant's parole violation under other factors.
Moreover, it alone — or even in conjunction with other evidence
— does not compel the conclusion that plaintiff is psychopathic.
In spite of the foregoing, the court concludes that transfer of John
Doe to adult status is warranted in the interest of justice. In carefully
weighing the factors, the court is particularly concerned about the
seriousness of the crimes alleged, defendant's recidivist behavior and
his current age. Defendant is charged with a host of serious crimes,
including murder and other acts of violence, that arise out of his
alleged involvement with a criminal organization. The disturbing nature
of these crimes; defendant's continued involvement in them even after his
parole from state prison; his prior conviction for criminal possession of
a loaded gun; and his arrest for armed robbery in 1993, heighten the
court's concern about the threat he poses to society. See Nelson I, 68
F.3d at 590 ("[W]hen a crime is particularly serious, the district court
is justified in weighing this factor more heavily than the other
Of equally grave concern to the court is defendant's demonstrated
tendency to revert to criminal behavior. Defendant had already been given
at least one opportunity to straighten his life out when he was paroled,
yet he apparently continued to engage in narcotics trafficking and other
crimes. Although the court recognizes that while on parole defendant was
not provided with the resources, supervision and guidance necessary for
him to fully benefit from rehabilitation, it cannot disregard his lack of
motivation to change and his confessed inability to cope with the
commonplace pressures of school and work. Defendant's parole violation is
particularly troubling given the financial and parental responsibilities
he shares for raising his young daughter but which he largely abdicated
upon his return to prison. Inasmuch as rehabilitation is a primary purpose
of the federal delinquency provisions, including 18 U.S.C. § 5032,
and the government has demonstrated by a preponderance of the evidence
that rehabilitation is not likely in this case, the court finds that
transfer of John Doe to adult status is warranted.
For the reasons stated above, the government's motion for discretionary
transfer in the interest of justice is granted.
IT IS SO ORDERED.