In re J.L.M.

SCHWELB, Associate Judge,

concurring:

I join the judgment of the court and agree with most of the opinion. I add a few words about the practicalities of the situation.

Although the statute deals with the protection of the public and prospects for rehabilitation as two separate concepts, the difference between them is more illusory than real. Logically, the focus of the inquiry must be on whether the respondent is likely to be dangerous, and whether he will probably have been rehabilitated, at the time the juvenile system has completed its treatment of him. But if the respondent is still dangerous at that time, he cannot reasonably be viewed as having been rehabilitated. If he is then no longer dangerous, on the other hand, then rehabilitation will have effectively occurred. It would be a rare case indeed in which a rehabilitated respondent remained dangerous, or an unrehabilitated one was not.1

Framed in non-technical terms, the task of the judge at the transfer hearing is to make an informed prediction as to whether, if treated as a juvenile, the respondent, at the end of the road, (1) will probably no longer be dangerous, and (2) will probably have been rehabilitated. Because the two concepts are virtually indistinguishable, it makes little sense to me to place the burden on the District as to one prong and the burden on the respondent as to the other. Because the statute is written in the way that it is, however, I cannot quarrel with the majority’s disposition.

. There may be aspects of rehabilitation other than elimination of dangerousness, hut I think they are, at most, of secondary importance here. A court would not ordinarily refer a non-dangerous respondent to the adult system because, say, he or she could not learn to read.