Melanie Kalmanson - Academia.edu (original) (raw)
Papers by Melanie Kalmanson
Florida State University Law Review, 2015
Two hot-button topics; one framework. Second Amendment jurisprudence lacks a workable standard un... more Two hot-button topics; one framework. Second Amendment jurisprudence lacks a workable standard under which courts are to review gun control legislation. This paper presents an intersectional argument that (1) the abortion “undue burden” framework can be translated to Second Amendment legislation; (2) increased gun control provisions, like those recently proposed or discussed, are constitutional under current abortion framework. Though abortion is at the center of this discussion, this piece does not aim to contribute to reproductive rights discourse and accepts prima facie the current-standing framework.
NYU Journal of Legislation & Public Policy, 2019
We provide several constructions of special unextendible entangled bases with fixed Schmidt numbe... more We provide several constructions of special unextendible entangled bases with fixed Schmidt number k (SUEBk) in C d ⊗C d ′ for 2 ≤ k ≤ d ≤ d ′. We generalize the space decomposition method in Guo [Phys. Rev. A 94, 052302 (2016)], by proposing a systematic way of constructing new SUEBks in C d ⊗C d ′ for 2 ≤ k < d ≤ d ′ or 2 ≤ k = d < d ′. In addition, we give a construction of a (pqdd ′ − p(dd ′ − N))-number SUEBpk in C pd ⊗ C qd ′ from an N-number SUEBk in C d ⊗ C d ′ for p ≤ q by using permutation matrices. We also connect a (d(d ′ − 1) + m)-number UMEB in C d ⊗ C d ′ with an unextendible partial Hadamard matrix H m×d with m < d, which extends the result in [Quantum Inf. Process. 16(3), 84 (2017)].
The two-party adversarial structure of child custody cases forces out adequate representation of ... more The two-party adversarial structure of child custody cases forces out adequate representation of the individuals affected the most by the court's decisions -- the children. This paper presents a working definition for "high-conflict" in this context, which currently does not exist. Then, the paper argues that in high-conflict cases, the parents' (or parties') polarization precludes them from representing the children's best interests, undermining a fundamental presumption of the system. Thus, as the paper presents, children should be independently represented from the time a case is determined to be high-conflict.
Florida State University Law Review, 2016
The Fourteenth Amendment of the U.S. Constitution, through decades of evolving jurisprudence, has... more The Fourteenth Amendment of the U.S. Constitution, through decades of evolving jurisprudence, has become the source of several constitutional rights. As a result, it is often the topic of contentious discussions in the courts and academia. Distinct doctrine and jurisprudence accompanies the Amendment’s Equal Protection Clause and Due Process Clause, rendering each of these clauses individual sources of specific rights and remedies. Focusing on these clauses, this Article identifies a glaring inconsistency, or irony, in equal protection doctrine—specifically, how courts treat a history of discrimination in reviewing an equal protection claim. While a history of discrimination is first considered in establishing and determining the suspectness of a class, it then is ignored in determining whether an equal protection violation against that same class has occurred.
Florida State University Law Review, 2017
The prevalence of domestic violence in the United States indicates a need for increased governmen... more The prevalence of domestic violence in the United States indicates a need for increased governmental protection. The current state-based system inadequately serves victims of domestic violence, and previous US. Supreme Court rulings indicate that the U.S. Constitution leaves the federal government in an impotent position for providing any form of protection for domestic violence victims. Pursuant to the American Declaration on the Rights and Duties of Man, domestic violence violates one's human rights, or those fundamental to personhood. By ratifying the American Declaration through the Charter of the Organization of the American States, the United States established its responsibility for protecting U.S. citizens from this human rights violation. Thus, this Note contends that a federal statute creating federal liability against a state for failing to protect domestic violence victims should be enacted in accordance with the United States’ responsibility under the American Declaration.
![Research paper thumbnail of [R]elegated Through No Fault of Their Own to a More Difficult' System: Applying the Obergefell Opinion to Custody Principles](https://attachments.academia-assets.com/71669053/thumbnails/1.jpg)
](SSRN Electronic Journal, 2000
The language of the U.S. Supreme Court's ruling in Obergefell v. Hodges will be interpreted and s... more The language of the U.S. Supreme Court's ruling in Obergefell v. Hodges will be interpreted and scrutinized far years to come due to the opinion's wide breadth of impact across multiple areas of law. This paper exposes an impact in an unexpected area of law. This piece aims to acknowledge implications woven into the Court's language, which are not recognizable at first glance, that could potentialfy transform child custody law and the controlling best interests framework. Speczjicalfy, Obergefell imposes a per se presumption that marital relationships create stabiliry and continuiry far parenting. This paper explains the majoriry and dissenting opinions' reasoning and structure, then dissects statements within the opinions that could damage the balance necessary to maintain the cumnt, delicate child custody system. This paper discusses the assumptions underfying the Court's statements and offers arguments and empirical evidence to the contrary. Then, this paper proposes solutions to mitigate the effects of an unjustified presumption of stabiliry within a mam•age before custody law is overtaken l?J such presumption. I.
Florida State University Law Review, 2018
The practice of American prisons to shackle and otherwise restrain incarcerated, preg-nant women ... more The practice of American prisons to shackle and otherwise restrain incarcerated, preg-nant women is problematic for several reasons. Such practices include shackling, chaining, and handcuffing pregnant inmates during their third trimester, transportation to and from medical facilities, labor and delivery, and postpartum recovery. Current discourse on this topic focuses primarily on how these practices invade the woman’s civil liberties, particularly the Eighth Amendment right against cruel and unusual punishment, and international human rights. Recent case law vindicates policy rationales for such practices—safety of others, safety of the woman herself, and securing flight risks.
These discussions overlook and this Note confronts the state’s interests in fetal rights and then, after birth, the child’s rights as a constitutionally protected person. Shifting the shackling discussion to protecting the child, this Note argues that shackling practices should be banned in all American institutions because they unconstitutionally infringe upon the child’s rights to due process and against cruel and unusual punishment.
Judicial Independence by Melanie Kalmanson
University of Florida Law Review Online, Apr 15, 2019
In Judicial Impartiality in a Partisan Era (“Professor Robertson’s Article”), Cassandra Burke Rob... more In Judicial Impartiality in a Partisan Era (“Professor Robertson’s Article”), Cassandra Burke Robertson focuses on the danger the judiciary faces as a result of “growing partisan polarization.” She should be applauded for bringing this problem to the forefront. Unquestionably, politically motivated attacks against the judiciary have increased since 2010. Professor Robertson’s Article illuminates the dichotomy between the expectation that the judiciary be fair and impartial in protecting litigants’ constitutional rights—as guaranteed by the this country’s fundamental documents, the U.S. and state constitutions—and the threat to those bedrock principles when politically motivated special interests look to the judiciary to support their own political agendas. Professor Robertson’s Article proposes that the solution to this dangerous dichotomy lies in changes to judicial decision-making processes. But, this proposal perpetuates the belief that judges are incapable of deciding a case without regard to perceived political allegiances that may have helped them achieve their position. With respect, it appears Professor Robertson’s Article assumes that partiality based on political affiliation is endemic to our federal and state judiciary. Rather, as former Florida Supreme Court Justice Barbara J. Pariente and others have explained, part of the solution lies in more informed public education as well as reviewing our judicial selection processes.
Elon Law Review, Apr 8, 2019
hat message do voters send by removing a judge from office based on disagreement with a lawful ju... more hat message do voters send by removing a judge from office based on disagreement with a lawful judicial decision? That question is at the heart of this issue of the American Judges Association' s Court Review, which focuses on the issue in light of the 2018 recall of California Judge Aaron Persky based on public outrage at the lawful, but extremely lenient, sentence he gave to a Stanford University student-athlete in a highly publicized sexual assault case. The message to other judges: Impose harsher sentences? Or perhaps a more specific message: Take sexual assault cases seriously? Viewed broadly, is this an example of the voters demanding accountability in sentencing, or of voters sending a more insidious message-Rule in a way that is not in step with the prevailing public opinion and risk your position as a judge? Despite the valid concerns caused by the Stanford case, it is this latter message that, in my view, presents the greatest threat to judicial independence. In 2010, those who opposed same-sex marriage in Iowa sent precisely this dangerous message. An aptly named TV ad, "Send Them a Message," urged Iowa voters to "vote NO" on the retention of three respected Iowa Supreme Court justices, characterizing them as "activist judges" who "ignor[e] the will of voters," "legislat[e] from the bench," and "usurp the will of voters." 1 The ad was part of a larger, politically motivated campaign to oust the three justices who were on the ballot for merit retention. To be clear, the outrage was not based on the justices' ethics, professionalism, jurisprudence, or judicial integrity. Rather, the effort to remove these justices focused on one particular, unanimous decision striking down, as uncon-stitutional, Iowa' s ban on same-sex marriage. The message: Do not ignore the will of the voters. But this message is the antithesis of the role of the judiciary in our democracy. Judges should decide cases based on the facts and the law, not the will of the voters. Our branch is not intended to be political. Our judges are expected to be fair and impartial-not swayed by popular opinion, or pressures from special interests or the other two branches of government. Perhaps Justice Sandra Day O'Connor put it best: "The Founders realized that there has to be someplace where being right is more important than being popular or powerful, and where fairness trumps strength. And in our country that place is supposed to be the courtroom." 2 Yet, in 2012, inspired by the success of that 2010 campaign in Iowa, special interest groups 3 targeted my colleagues, Justices Peggy Quince and R. Fred Lewis, and me when we were on Florida' s ballot for merit retention in 2012. As I have detailed in several articles, 4 our opponents used some of the same political messages employed in Iowa-especially that catch-all, ill-defined term: "activist judges." They used selected opinions from our Court that, although jurisprudentially sound, could be reduced to potentially controversial sound bites. Their true goal: oust us to give the governor his chance to select three new justices who presumably would be more in line with his judicial philosophy. 5 The attacks required my colleagues and me to travel the state to speak to Florida voters and editorial boards, attempting to explain that the campaign against us was not based on our integrity, professionalism, or competence.
Capital Sentencing by Melanie Kalmanson
University of Miami law review, 2020
As the federal appeals court with jurisdiction over Florida and Alabama—two leaders in capital pu... more As the federal appeals court with jurisdiction over Florida and Alabama—two leaders in capital punishment in the United States, the Eleventh Circuit reviews several claims each year related to capital punishment. Florida, a long-time leader in capital punishment in the United States, is home to one of the largest death row populations in the country. Thus, understanding Florida’s capital sentencing scheme is important in understanding capital punishment nationwide. This Article reviews the demographics of Florida’s death row population as well as how defendants are sentenced to death and ultimately executed in Florida. In doing so, the Article finds that while age is not a factor upon which murder/manslaughter defendants are discriminated in the sentencing process, gender and race are. Focusing on the death penalty, the gender discrimination appears consistent; however, the racial discrimination does not. The racial, age, and ethnic makeup of Florida’s death row and, more specifical...
Connecticut Public Interest Law Journal, 2023
The U.S. Supreme Court’s opinions in Ring v. Arizona (2002) and Hurst v. Florida (2016) are two c... more The U.S. Supreme Court’s opinions in Ring v. Arizona (2002) and Hurst v. Florida (2016) are two critical parts of the jurisprudence related to capital defendants’ right to trial by jury under the Sixth Amendment to the U.S. Constitution. Each opinion clarified capital defendants’ rights under the Sixth Amendment. While the new rules announced in the opinions seemed clear at the time, courts have grappled with how to apply Ring and Hurst — specifically to defendants whose sentences were final when the opinions were issued. Courts have diverged on whether the new rules announced in Ring and Hurst apply retroactively. This Article attempts to unravel the confusion surrounding why courts across the country have reached differing conclusions about whether these landmark decisions should apply retroactively. Ultimately, this Article explains that the case law regarding retroactive application of Ring was mostly consistent. It was after the U.S. Supreme Court decided Hurst that four points...
University of Pennsylvania Journal of Law and Public Affairs, 2020
For as long as the death penalty remains a viable punishment in the United States, safeguarding d... more For as long as the death penalty remains a viable punishment in the United States, safeguarding defendants' rights from sentencing through execution is crucial. As part of that effort, this Article focuses on a portion of the capital appellate process that is often overlooked and, in practice, effectively divests defendants of significant constitutional claims. As illustrated by the Supreme Court's recent decisions in Bucklew v. Precythe and Dunn v. Price, defendants face a significant procedural predicament in raising warrant-and execution-related claims. On one hand, courts have explained that these claims are not ripe, or are premature, when raised before a death warrant is issued. On the other hand, as in Bucklew and Dunn, when the defendant is under an active death warrant, courts are skeptical of the merits of these claims and often determine the defendant raised the claim too late, suspecting a game of delay. Since defendants are faced with increasingly short and arbitrary warrant periods, this Article explains, courts have essentially precluded defendants from properly raising and being heard on these critical issues. * J.D., magna cum laude, Florida State University College of Law (2016). Kalmanson served as a Staff Attorney to former Justice Barbara J. Pariente on the Supreme Court of Florida. The education she gained through her clerkship sparked her interest in, research on, and passion for the constitutional aspects of capital sentencing. Thank you, as always, to Professor Mary Ziegler for her guidance. Also, thank you to Professors Wayne Logan and Michael Morley for their feedback on drafts of this piece. Finally, thank you to those who have the critical job of representing death row defendants in their final days.
University of Miami Law Review Caveat, May 24, 2020
The U.S. Supreme Court’s decision in Hurst v. Florida was a “hurricanic constitutional event” for... more The U.S. Supreme Court’s decision in Hurst v. Florida was a “hurricanic constitutional event” for capital sentencing, especially in Florida. After the storm made landfall—invalidating Florida’s capital sentencing scheme based on the Sixth Amendment’s guarantee of a trial by jury—the Supreme Court of Florida and Florida courts generally were left to pick up the debris and begin reconstruction. On remand from Hurst v. Florida and in other related cases, the Supreme Court of Florida addressed the immediate issues that Hurst v. Florida presented. Specifically, the Florida Supreme Court interpreted the U.S. Supreme Court’s decision Hurst v. Florida, defined how Hurst v. Florida applied to Florida’s capital sentencing, and determined that Hurst errors are capable of harmless error review. Then, in several related decisions, the Court addressed the retroactivity of the rights the Court defined in Hurst and defined the circumstances in which a Hurst error is, in fact, harmless beyond a reasonable doubt.
However, as this Response to Hurst v. Florida’s Ha’p’orth of Tar: The Need to Revisit Caldwell, Clemons, and Profitt by Craig Trocino and Chance Meyer explains, the way in which the Supreme Court of Florida answered those questions in the immediate aftermath of Hurst v. Florida created and likely will create additional storms—storms that could be just as catastrophic as Hurst v. Florida. First, this Response assesses the aftermath of Hurst v. Florida, summarizing the framework the Supreme Court of Florida created in its wake. Then, this Response analyzes whether the Court heeded the warnings insightfully given in the Trocino and Meyer Article, specifically the importance of the Eighth Amendment in the Court’s post-Hurst discussion. Ultimately, this Response argues that the Court did not, and that failure created turbulence that led to other storms, or issues, and will likely create additional storms in the future. This Response concludes by canvassing what storms may be looming on the horizon based on pending litigation and questions the Supreme Court of Florida left unanswered after Hurst.
William and Mary Bill of Rights Journal, Mar 1, 2020
William & Mary Journal of Race, Gender, and Justice, 2023
Florida State University Law Review, 2015
Two hot-button topics; one framework. Second Amendment jurisprudence lacks a workable standard un... more Two hot-button topics; one framework. Second Amendment jurisprudence lacks a workable standard under which courts are to review gun control legislation. This paper presents an intersectional argument that (1) the abortion “undue burden” framework can be translated to Second Amendment legislation; (2) increased gun control provisions, like those recently proposed or discussed, are constitutional under current abortion framework. Though abortion is at the center of this discussion, this piece does not aim to contribute to reproductive rights discourse and accepts prima facie the current-standing framework.
NYU Journal of Legislation & Public Policy, 2019
We provide several constructions of special unextendible entangled bases with fixed Schmidt numbe... more We provide several constructions of special unextendible entangled bases with fixed Schmidt number k (SUEBk) in C d ⊗C d ′ for 2 ≤ k ≤ d ≤ d ′. We generalize the space decomposition method in Guo [Phys. Rev. A 94, 052302 (2016)], by proposing a systematic way of constructing new SUEBks in C d ⊗C d ′ for 2 ≤ k < d ≤ d ′ or 2 ≤ k = d < d ′. In addition, we give a construction of a (pqdd ′ − p(dd ′ − N))-number SUEBpk in C pd ⊗ C qd ′ from an N-number SUEBk in C d ⊗ C d ′ for p ≤ q by using permutation matrices. We also connect a (d(d ′ − 1) + m)-number UMEB in C d ⊗ C d ′ with an unextendible partial Hadamard matrix H m×d with m < d, which extends the result in [Quantum Inf. Process. 16(3), 84 (2017)].
The two-party adversarial structure of child custody cases forces out adequate representation of ... more The two-party adversarial structure of child custody cases forces out adequate representation of the individuals affected the most by the court's decisions -- the children. This paper presents a working definition for "high-conflict" in this context, which currently does not exist. Then, the paper argues that in high-conflict cases, the parents' (or parties') polarization precludes them from representing the children's best interests, undermining a fundamental presumption of the system. Thus, as the paper presents, children should be independently represented from the time a case is determined to be high-conflict.
Florida State University Law Review, 2016
The Fourteenth Amendment of the U.S. Constitution, through decades of evolving jurisprudence, has... more The Fourteenth Amendment of the U.S. Constitution, through decades of evolving jurisprudence, has become the source of several constitutional rights. As a result, it is often the topic of contentious discussions in the courts and academia. Distinct doctrine and jurisprudence accompanies the Amendment’s Equal Protection Clause and Due Process Clause, rendering each of these clauses individual sources of specific rights and remedies. Focusing on these clauses, this Article identifies a glaring inconsistency, or irony, in equal protection doctrine—specifically, how courts treat a history of discrimination in reviewing an equal protection claim. While a history of discrimination is first considered in establishing and determining the suspectness of a class, it then is ignored in determining whether an equal protection violation against that same class has occurred.
Florida State University Law Review, 2017
The prevalence of domestic violence in the United States indicates a need for increased governmen... more The prevalence of domestic violence in the United States indicates a need for increased governmental protection. The current state-based system inadequately serves victims of domestic violence, and previous US. Supreme Court rulings indicate that the U.S. Constitution leaves the federal government in an impotent position for providing any form of protection for domestic violence victims. Pursuant to the American Declaration on the Rights and Duties of Man, domestic violence violates one's human rights, or those fundamental to personhood. By ratifying the American Declaration through the Charter of the Organization of the American States, the United States established its responsibility for protecting U.S. citizens from this human rights violation. Thus, this Note contends that a federal statute creating federal liability against a state for failing to protect domestic violence victims should be enacted in accordance with the United States’ responsibility under the American Declaration.
SSRN Electronic Journal, 2000
The language of the U.S. Supreme Court's ruling in Obergefell v. Hodges will be interpreted and s... more The language of the U.S. Supreme Court's ruling in Obergefell v. Hodges will be interpreted and scrutinized far years to come due to the opinion's wide breadth of impact across multiple areas of law. This paper exposes an impact in an unexpected area of law. This piece aims to acknowledge implications woven into the Court's language, which are not recognizable at first glance, that could potentialfy transform child custody law and the controlling best interests framework. Speczjicalfy, Obergefell imposes a per se presumption that marital relationships create stabiliry and continuiry far parenting. This paper explains the majoriry and dissenting opinions' reasoning and structure, then dissects statements within the opinions that could damage the balance necessary to maintain the cumnt, delicate child custody system. This paper discusses the assumptions underfying the Court's statements and offers arguments and empirical evidence to the contrary. Then, this paper proposes solutions to mitigate the effects of an unjustified presumption of stabiliry within a mam•age before custody law is overtaken l?J such presumption. I.
Florida State University Law Review, 2018
The practice of American prisons to shackle and otherwise restrain incarcerated, preg-nant women ... more The practice of American prisons to shackle and otherwise restrain incarcerated, preg-nant women is problematic for several reasons. Such practices include shackling, chaining, and handcuffing pregnant inmates during their third trimester, transportation to and from medical facilities, labor and delivery, and postpartum recovery. Current discourse on this topic focuses primarily on how these practices invade the woman’s civil liberties, particularly the Eighth Amendment right against cruel and unusual punishment, and international human rights. Recent case law vindicates policy rationales for such practices—safety of others, safety of the woman herself, and securing flight risks.
These discussions overlook and this Note confronts the state’s interests in fetal rights and then, after birth, the child’s rights as a constitutionally protected person. Shifting the shackling discussion to protecting the child, this Note argues that shackling practices should be banned in all American institutions because they unconstitutionally infringe upon the child’s rights to due process and against cruel and unusual punishment.
University of Florida Law Review Online, Apr 15, 2019
In Judicial Impartiality in a Partisan Era (“Professor Robertson’s Article”), Cassandra Burke Rob... more In Judicial Impartiality in a Partisan Era (“Professor Robertson’s Article”), Cassandra Burke Robertson focuses on the danger the judiciary faces as a result of “growing partisan polarization.” She should be applauded for bringing this problem to the forefront. Unquestionably, politically motivated attacks against the judiciary have increased since 2010. Professor Robertson’s Article illuminates the dichotomy between the expectation that the judiciary be fair and impartial in protecting litigants’ constitutional rights—as guaranteed by the this country’s fundamental documents, the U.S. and state constitutions—and the threat to those bedrock principles when politically motivated special interests look to the judiciary to support their own political agendas. Professor Robertson’s Article proposes that the solution to this dangerous dichotomy lies in changes to judicial decision-making processes. But, this proposal perpetuates the belief that judges are incapable of deciding a case without regard to perceived political allegiances that may have helped them achieve their position. With respect, it appears Professor Robertson’s Article assumes that partiality based on political affiliation is endemic to our federal and state judiciary. Rather, as former Florida Supreme Court Justice Barbara J. Pariente and others have explained, part of the solution lies in more informed public education as well as reviewing our judicial selection processes.
Elon Law Review, Apr 8, 2019
hat message do voters send by removing a judge from office based on disagreement with a lawful ju... more hat message do voters send by removing a judge from office based on disagreement with a lawful judicial decision? That question is at the heart of this issue of the American Judges Association' s Court Review, which focuses on the issue in light of the 2018 recall of California Judge Aaron Persky based on public outrage at the lawful, but extremely lenient, sentence he gave to a Stanford University student-athlete in a highly publicized sexual assault case. The message to other judges: Impose harsher sentences? Or perhaps a more specific message: Take sexual assault cases seriously? Viewed broadly, is this an example of the voters demanding accountability in sentencing, or of voters sending a more insidious message-Rule in a way that is not in step with the prevailing public opinion and risk your position as a judge? Despite the valid concerns caused by the Stanford case, it is this latter message that, in my view, presents the greatest threat to judicial independence. In 2010, those who opposed same-sex marriage in Iowa sent precisely this dangerous message. An aptly named TV ad, "Send Them a Message," urged Iowa voters to "vote NO" on the retention of three respected Iowa Supreme Court justices, characterizing them as "activist judges" who "ignor[e] the will of voters," "legislat[e] from the bench," and "usurp the will of voters." 1 The ad was part of a larger, politically motivated campaign to oust the three justices who were on the ballot for merit retention. To be clear, the outrage was not based on the justices' ethics, professionalism, jurisprudence, or judicial integrity. Rather, the effort to remove these justices focused on one particular, unanimous decision striking down, as uncon-stitutional, Iowa' s ban on same-sex marriage. The message: Do not ignore the will of the voters. But this message is the antithesis of the role of the judiciary in our democracy. Judges should decide cases based on the facts and the law, not the will of the voters. Our branch is not intended to be political. Our judges are expected to be fair and impartial-not swayed by popular opinion, or pressures from special interests or the other two branches of government. Perhaps Justice Sandra Day O'Connor put it best: "The Founders realized that there has to be someplace where being right is more important than being popular or powerful, and where fairness trumps strength. And in our country that place is supposed to be the courtroom." 2 Yet, in 2012, inspired by the success of that 2010 campaign in Iowa, special interest groups 3 targeted my colleagues, Justices Peggy Quince and R. Fred Lewis, and me when we were on Florida' s ballot for merit retention in 2012. As I have detailed in several articles, 4 our opponents used some of the same political messages employed in Iowa-especially that catch-all, ill-defined term: "activist judges." They used selected opinions from our Court that, although jurisprudentially sound, could be reduced to potentially controversial sound bites. Their true goal: oust us to give the governor his chance to select three new justices who presumably would be more in line with his judicial philosophy. 5 The attacks required my colleagues and me to travel the state to speak to Florida voters and editorial boards, attempting to explain that the campaign against us was not based on our integrity, professionalism, or competence.
University of Miami law review, 2020
As the federal appeals court with jurisdiction over Florida and Alabama—two leaders in capital pu... more As the federal appeals court with jurisdiction over Florida and Alabama—two leaders in capital punishment in the United States, the Eleventh Circuit reviews several claims each year related to capital punishment. Florida, a long-time leader in capital punishment in the United States, is home to one of the largest death row populations in the country. Thus, understanding Florida’s capital sentencing scheme is important in understanding capital punishment nationwide. This Article reviews the demographics of Florida’s death row population as well as how defendants are sentenced to death and ultimately executed in Florida. In doing so, the Article finds that while age is not a factor upon which murder/manslaughter defendants are discriminated in the sentencing process, gender and race are. Focusing on the death penalty, the gender discrimination appears consistent; however, the racial discrimination does not. The racial, age, and ethnic makeup of Florida’s death row and, more specifical...
Connecticut Public Interest Law Journal, 2023
The U.S. Supreme Court’s opinions in Ring v. Arizona (2002) and Hurst v. Florida (2016) are two c... more The U.S. Supreme Court’s opinions in Ring v. Arizona (2002) and Hurst v. Florida (2016) are two critical parts of the jurisprudence related to capital defendants’ right to trial by jury under the Sixth Amendment to the U.S. Constitution. Each opinion clarified capital defendants’ rights under the Sixth Amendment. While the new rules announced in the opinions seemed clear at the time, courts have grappled with how to apply Ring and Hurst — specifically to defendants whose sentences were final when the opinions were issued. Courts have diverged on whether the new rules announced in Ring and Hurst apply retroactively. This Article attempts to unravel the confusion surrounding why courts across the country have reached differing conclusions about whether these landmark decisions should apply retroactively. Ultimately, this Article explains that the case law regarding retroactive application of Ring was mostly consistent. It was after the U.S. Supreme Court decided Hurst that four points...
University of Pennsylvania Journal of Law and Public Affairs, 2020
For as long as the death penalty remains a viable punishment in the United States, safeguarding d... more For as long as the death penalty remains a viable punishment in the United States, safeguarding defendants' rights from sentencing through execution is crucial. As part of that effort, this Article focuses on a portion of the capital appellate process that is often overlooked and, in practice, effectively divests defendants of significant constitutional claims. As illustrated by the Supreme Court's recent decisions in Bucklew v. Precythe and Dunn v. Price, defendants face a significant procedural predicament in raising warrant-and execution-related claims. On one hand, courts have explained that these claims are not ripe, or are premature, when raised before a death warrant is issued. On the other hand, as in Bucklew and Dunn, when the defendant is under an active death warrant, courts are skeptical of the merits of these claims and often determine the defendant raised the claim too late, suspecting a game of delay. Since defendants are faced with increasingly short and arbitrary warrant periods, this Article explains, courts have essentially precluded defendants from properly raising and being heard on these critical issues. * J.D., magna cum laude, Florida State University College of Law (2016). Kalmanson served as a Staff Attorney to former Justice Barbara J. Pariente on the Supreme Court of Florida. The education she gained through her clerkship sparked her interest in, research on, and passion for the constitutional aspects of capital sentencing. Thank you, as always, to Professor Mary Ziegler for her guidance. Also, thank you to Professors Wayne Logan and Michael Morley for their feedback on drafts of this piece. Finally, thank you to those who have the critical job of representing death row defendants in their final days.
University of Miami Law Review Caveat, May 24, 2020
The U.S. Supreme Court’s decision in Hurst v. Florida was a “hurricanic constitutional event” for... more The U.S. Supreme Court’s decision in Hurst v. Florida was a “hurricanic constitutional event” for capital sentencing, especially in Florida. After the storm made landfall—invalidating Florida’s capital sentencing scheme based on the Sixth Amendment’s guarantee of a trial by jury—the Supreme Court of Florida and Florida courts generally were left to pick up the debris and begin reconstruction. On remand from Hurst v. Florida and in other related cases, the Supreme Court of Florida addressed the immediate issues that Hurst v. Florida presented. Specifically, the Florida Supreme Court interpreted the U.S. Supreme Court’s decision Hurst v. Florida, defined how Hurst v. Florida applied to Florida’s capital sentencing, and determined that Hurst errors are capable of harmless error review. Then, in several related decisions, the Court addressed the retroactivity of the rights the Court defined in Hurst and defined the circumstances in which a Hurst error is, in fact, harmless beyond a reasonable doubt.
However, as this Response to Hurst v. Florida’s Ha’p’orth of Tar: The Need to Revisit Caldwell, Clemons, and Profitt by Craig Trocino and Chance Meyer explains, the way in which the Supreme Court of Florida answered those questions in the immediate aftermath of Hurst v. Florida created and likely will create additional storms—storms that could be just as catastrophic as Hurst v. Florida. First, this Response assesses the aftermath of Hurst v. Florida, summarizing the framework the Supreme Court of Florida created in its wake. Then, this Response analyzes whether the Court heeded the warnings insightfully given in the Trocino and Meyer Article, specifically the importance of the Eighth Amendment in the Court’s post-Hurst discussion. Ultimately, this Response argues that the Court did not, and that failure created turbulence that led to other storms, or issues, and will likely create additional storms in the future. This Response concludes by canvassing what storms may be looming on the horizon based on pending litigation and questions the Supreme Court of Florida left unanswered after Hurst.
William and Mary Bill of Rights Journal, Mar 1, 2020
William & Mary Journal of Race, Gender, and Justice, 2023