The California Supreme Court’s decision in In re Cook was supposed to bring about a sea change in the way trial courts conduct Franklin mitigation hearings for youthful offenders. In fact, while Cook changed the procedure for initiating a post-conviction Franklin proceeding, little else has changed, including the lack of agreement among attorneys concerning best practices in these proceedings, and a less than less-than-enthusiastic response from the criminal defense bar. Absent any guidance from higher courts, the Franklin proceeding is limited by the personal and institutional energies and preferences of judges, prosecutors, public defenders and private defense counsel. The authors of this Article, who run a law school clinic dedicated to juvenile post-conviction mitigation, believe that the implementation of Franklin and Cook has not been as robust as needed, and that a more assertive, nuanced, and in-depth set of practices are necessary. This Article explores the underpinnings of the Franklin proceeding, the inadequacies of the institutional response so far, the need and purpose for a more robust set of practices related to Franklin, and recommendations for the practices themselves.
Christopher Hawthorne & Marisa Sacks, In re Cook and the Franklin Proceeding: New Door, Same Dilapidated House, 53 Loy. L.A. L. Rev. 373 (2020).