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137. Sixth factor—The Availability Of Programs Designed To Treat The Juvenile's Behavioral Problems

This is the sixth statutory transfer factor. The district court should make an inquiry of juvenile programs available for similarly aged juveniles. Nelson, 68 F. 3d at 590-91. The court should determine how the juvenile would fit into such programs and how long the juvenile might be detained. Id.

The government must do more, to carry its burden of persuasion, than merely asserting the unavailability of appropriate programs. Id. It must make a showing that it has investigated various options but is still unable to find available and suitable programs. Id. Even where the district court determines that there is a better chance of rehabilitation in adult programs, it must base the decision on a comparison of adult and juvenile facilities. Id.; Gerald N., 900 F. 2d at 191.

This factor should not weigh against the juvenile solely because the government fails to offer a treatment program. M.H., 901 F. Supp. at 1217. Conversely, the government's default in making available a wide range of programs is insufficient reason to conclude this factor in the juvenile's favor. Id. Under this circumstance, the court may appropriately consider the likely success of such a rehabilitative program were one available. Id.

Although the Act requires the district court to consider available juvenile treatment options, it is not required to conduct a nationwide search for such programs. T.F.F., 55 F. 3d at 1121. Whether it is an abuse of discretion for a district court to fail to consider evidence presented regarding available juvenile programs in other jurisdictions is still undecided. Id. at n.1.

Finally, it is not clearly erroneous for a court to reason that the state system offers no hope of rehabilitation if a juvenile is at an age where little time remains for possible rehabilitation within the juvenile system. Id. at 1121. A motion to transfer is properly granted where a court determines that the risk of harm to society posed by affording the defendant more lenient treatments within the juvenile system outweighs the defendant's chances for rehabilitation. One Juvenile Male, 40 F.3d at 844.

A United States Probation Officer or Bureau of Prisons official may be able to provide proof concerning this factor.

Updated January 22, 2020