Psychological Evaluations for Franklin Hearings

We get several requests from defense attorneys and non-profit firms representing offenders who have been given lengthy sentences or are serving juvenile LWOP (Life Without Parole) to complete a psychological evaluation to be reviewed at a future parole hearing or upcoming parole hearing and resentencing hearing for post-conviction cases. The recentness of Franklin Hearings poses many questions about how psychological evaluations are completed or used in a Franklin Hearing. Of note, a Franklin Hearing is a supplemental sentencing hearing for those offenders who were under the age of 26 at the time of their offense. Essentially, offenders and their attorneys ask for an evaluation that will address mitigating factors explicitly related to the offender’s youthfulness (age) at the time of their offense and render a report that will detail such. These youthfulness factors would then likely impact the length of their sentence or resentence.

Juvenile Tyris Lamar Franklin was 16 years old when he shot and killed another teenager. A jury found him guilty and convicted him of first-degree murder with a firearm enhancement. The California trial court was obligated by statute to hand down two consecutive 25-year back-to-back sentences. Franklin’s total sentence was life in prison with the possibility of parole after 50 years.

After Franklin was sentenced, The Supreme court held that his sentence violated the Eighth Amendment to the federal Constitution- the prohibition against cruel and unusual punishment as indicated in Miller v Alabama (2012). Miller v. Alabama (2012) prohibits a mandatory life without parole (LWOP) sentence for a juvenile offender who commits homicide. Franklin appeared citing this case among others that supported the claim that his life sentence did not include judicial consideration of his youth and its relevance for sentencing.

Ultimately, The Supreme court ruled that an individual sentenced to a lengthy prison term for a crime committed while 26 or under must have had the opportunity to present, during trial, the mitigating evidence that would be relevant at a future parole hearing, even if the hearing is set to happen 10, 15, or 20 years from now. Therefore, a franklin hearing is a special type of hearing where an attorney requests to present mitigating factors that were never introduced in the trial or sentencing of the original case.

Purpose of a Psychological Evaluation for a Franklin Hearing

The purpose of having a psychological evaluation at a Franklin Hearing is to provide a clinical picture of the offender and mitigating factors related to their youth to be heard at a future parole hearing date or resentencing hearing. Potential mitigating factors include age at the time of the offense, cognitive and emotional immaturity, trauma history, neurodevelopmental disorders, psychiatric disorders, dysfunctional family dynamics, and diminished culpability compared to adults, to name a few. For offenders and attorneys seeking an evaluation for Franklin Hearing post-conviction cases, the expert will also consider any subsequent development and prosocial growth while in prison. Furthermore, if the offender has already spent a significant amount of time in prison, the attorney can request that the psychologist address suitability for parole.

How VPG Completes a Franklin Hearing Type of Evaluation

First, a consultation is best to review your strategy and approach to the hearing. We clarify the referral question for the evaluation during the consultation, providing you with a concise and relevancy-based report instead of 15 pages of words. We review your considerations for the Franklin/Miller Hearing as well as any youthful mitigating factors (i.e., The Miller Factors) and their impact on the inmate/defendant at the time of the offense(s).

Attorney Considerations for Franklin Hearing Evaluations:

Do you want the evaluation and report to address all 5 Miller factors?

  1. Hallmark Features of Youth (chronological age, immaturity, failure to appreciate risks, etc.)
  2. Home and Family (environment, dysfunction, etc.)
  3. Circumstances of Crime/Peer Pressure
  4. Incompetencies of Youth (early entry and difficulties dealing with child welfare and probation systems, etc.)
  5. Evidence of Rehabilitation/Suitability for Parole (and the possibility of needing a risk assessment)

Do you want a limited-purpose evaluation focusing on the following:

  • Discussing adolescent brain development
  • Trauma and Adverse Childhood Experiences
  • Cognitive deficits and how they pertain to the Miller factors
  • Risk and Treatment (how prior treatments failed and why – perhaps they were not evidenced-based or dose-dependent).
  • Address PTSD, TBI, or Substance Abuse and how these relate to the offense charged.

In sum, you select which referral question will assist you in your case. No matter what the exact referral question, we will focus on examining the concept of transient immaturity. Transient immaturity means we are assessing:

  • Adolescent Brain Development
  • Social Environment Factors
    • Trauma and its effects on the brain
  • The Crime Itself (psychosocial immaturity)
  • Ability to deal with counsel & police (psychosocial immaturity)
  • Evidence of Rehabilitation

Also, it is important to discuss or inform the psychologist whether or not they can discuss the facts of the case with the offender. It is most helpful if we can do so because we get more insight into their maturity/immaturity levels at the time of the offense.

Records that will be helpful in the evaluation

  1. School records, including special education and IEP.
  2. Psychiatric/Treatment Records- outpatient therapy, inpatient (psychiatric hospitalization), crisis contacts, and medication.
  3. Developmental/Pediatric Records- particularly if there is a history of neurodevelopmental impairments.
  4. Medical Records- particularly if there is an indication of any injuries or medical problems.
  5. Child Welfare Records
  6. Probation and Parole Records, including transcripts from the trial or police reports and criminal history.

As a bonus, sending a list of collateral contacts (family, therapist, and treatment providers we can interview for additional information) will be most helpful. Alternatively, if you can retain an investigator or forensic social worker who will conduct these interviews, you are more than welcome to send the investigation reports our way once completed.

Screening instruments & assessment tools are essential and help us gather objective data to support the forensic opinions.

The following types of instruments are routinely used when we assess juveniles/adults in transfer and franklin cases. We are happy to discuss these in our consultation as well.

  1. Risk Assessment
  2. Test of Cognitive Abilities
  3. Effort/Motivation
  4. Psychopathy

Franklin/Miller (youthful offender) evaluations are becoming more popular due to the passage of Prop 57 and other resentencing statutes. It can be challenging for attorneys to figure out how to utilize a psychological evaluation in these types of hearings. The most important thing is to have the evaluation overview the possible transient immaturity of the offender. Next, decide whether you want the psychologist to overview all of the mitigating Miller factors or conduct a more focused report. A consultation between the attorney and the psychologist can help flush out the details of the approach so that the attorney can decide how to best represent their client in the hearing.

Our practice specializes in completing youthful offender evaluations for Franklin and other resentencing hearings, including conducting a comprehensive risk for future violence assessment if needed. Book your consultation here.