Academic Articles
My scholarship since 2019 has focused on constitutional issues related to capital sentencing, including the fallout of the U.S. Supreme Court's 2016 decision in Hurst v. Florida. Other areas of interest include judicial independence and the Fourteenth Amendment.
See my SSRN page here.
Sections on this Page
Capital Punishment
Judicial Independence
Judicial Independence
Since 2019, my scholarship has focused on constitutional issues related to capital sentencing.
Judicial Independence
Judicial Independence
Judicial Independence
During my clerkship, I learned a lot about judicial independence.
Student Notes
Judicial Independence
Student Notes
My love for academic writing started in law school.
Capital Punishment
The Eighth Amendment's Time to Shine: Previewing Florida's Imminent Constitutional Crisis in Capital Punishment
Publication: Florida Law Review Forum
In April 2023, Florida Governor DeSantis enacted legislation that lowers the jury vote necessary to impose a sentence of death in the state to 8-4. The new statute removes the procedural safeguards that were implemented after the U.S. Supreme Court held in 2016 that Florida's capital sentencing scheme violated defendants' right to jury trial under the Sixth Amendment.
Litigation about the constitutionality and application of the new statute has already started and will likely continue for a while until the full effect of the statute is determined. This Essay previews some of the issues that will be litigated and forecasts that the Eighth Amendment will be the star of the show in this Act of the play on Florida’s constitutional crises in capital punishment.
Death After Dobbs: Addressing the Viability of Capital Punishment for Abortion
Publication: William & Mary Journal of Race, Gender, and Social Justice.
Pre-Dobbs legislative efforts and states’ reactions in the immediate aftermath of Dobbs indicate the post-Dobbs reality that extreme conservative states will seek to criminalize abortion and impose extreme sentences for such crimes, up to and including death. This Article addresses that reality. Initially, this Article illustrates that abortion and capital punishment are like opposite sides of the same coin, and it is a handful of states leading the counter majoritarian efforts on both topics. After outlining the position of each state in the nation that retains capital punishment on capital sentencing and abortion, the Article identifies the most extreme states on both issues, referenced as “Punitive States.”
Then, addressing the post-Dobbs reality that Punitive States could attempt to punish abortion by death, this Article shows that the current capital sentencing framework used across the country is incompatible with abortion offenses. The aggravating factors and mitigating circumstances, if applied to abortion offenses, would not serve their constitutional purposes. Therefore, this Article argues, capital sentences imposed under the current framework for abortion offenses would stand in violation of the Sixth and Eighth Amendments to the U.S. Constitution. Further, this Article argues that attempts to write abortion-specific capital sentencing proceedings would prove to be acts in futility. Thus, the Article ultimately concludes that death is not a viable punishment for abortion.
Ring & Hurst Retroactivity: Deconstructing Divergent Doctrines
Coauthor: Nathan Molina
Publication: 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 critical parts of the jurisprudence related to capital defendants’ right to trial by jury under the Sixth Amendment to the U.S. Constitution. Each clarified capital defendants’ rights under the Sixth Amendment. While the new rules announced in Ring and Hurst seemed clear at the time, courts have grappled with how to apply them for years—in part, whether the new rules apply retroactively to defendants whose capital sentences were final when the opinions were issued. As this article explains, courts have reached divergent conclusions on whether the new rules announced in Ring and Hurst apply retroactively. This article attempts to unravel the confusion surrounding the retroactivity of these landmark decisions.
Ultimately, this article explains that the case law regarding the retroactive application of Ring was mostly consistent. A close examination of the case law reveals that the confusion arose after the U.S. Supreme Court decided Hurst. This article identifies four points of confusion that arose surrounding the retroactivity of Ring and Hurst: (1) Was Hurst a direct result of Ring?; If so, should it apply retroactively?; (2) What role did the Eighth Amendment play in both Ring and Hurst?; (3) Why did some courts reach divergent conclusions on Hurst retroactivity even in applying the same federal standard?; (4) Does the Florida Supreme Court’s invention of partial retroactivity for Hurst make sense? By exploring and explaining these sources of confusion, this article aims to help clarify the broader landscape of modern capital sentencing jurisprudence. Further, this article explains that the resolution to such uncertainty likely lies in the U.S. Supreme Court clarifying the distinction between the roles of the Sixth and Eighth Amendments in capital sentencing.
Somewhere Between Death Row and Death Watch: The Procedural Trap Capital Defendants Face in Raising Execution-Related Claims
Publication: University of Pennsylvania Journal of Law & Public Affairs (2020)
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 Essay 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 U.S. 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 execution-related claims are not ripe, or premature, when raised before a defendant is under an active death warrant. On the other, as in Bucklew and Dunn, when the defendant is under an active death warrant, courts are skeptical of the merits of these claims and determine the defendant raised the claim too late, suspecting a game of delay. Yet, defendants are faced with increasingly short and arbitrary warrant periods. Thus, as this Essay explains, the proper time for defendants to raise warrant- and execution-related claims is caught somewhere between death row and death watch. Courts have essentially precluded defendants from properly raising and being heard on these critical issues.
Addressing this concern, this Essay canvasses potential solutions, exploring the advantages and disadvantages of each. Ultimately, this Essay concludes that the best solution is for states to enact and courts to enforce uniform warrant procedures. In doing so, this Essay proposes statutory language that would implement this solution. However, as states’ former attempts to enact such procedures show, enforcement by courts is crucial for this solution to be effective and properly safeguard defendants’ rights in last-minute, execution-related appeals.
Steps Toward Abolishing Capital Punishment: Incrementalism in the American Death Penalty
Publication: William & Mary Bill of Rights Journal (2020)
While scholars seem united on the sentiment that abolition is the ultimate resting place for capital sentencing in the United States, their arguments vary as to how the system will reach that point. For example, Carol and Jordan Steiker argue that the systemic disarray of capital sentencing in the United States is a result of the U.S. Supreme Court’s attempt to constitutionalize capital sentencing. This Article contends that the U.S. Supreme Court’s constitutional jurisprudence that has developed since 1972, when the Court reset capital sentencing in Furman v. Georgia, has aided the Court in gradually narrowing capital punishment, as a result of the controlling “evolving standards of decency” standard. Specifically, the Court has narrowed capital punishment with respect to who may be sentenced to death, how sentences of death are imposed, and how defendants are executed. As a result, this Article contends that the “evolving standards of decency” standard paves the path toward abolition.
First, this Article shows that incrementalism has led to the current landscape of capital punishment in the United States. Then, the Article contends that an incremental approach to reaching abolition is inherent in the governing “evolving standards of decency” standard and the most effective and realistic way of achieving abolition. Finally, the Article proposes the next steps in this approach to eliminating the death penalty in America.
Storm of the Decade: The Aftermath of Hurst v. Florida & Why the Storm is Likely to Continue
Publication: University of Miami Law Review Online (2020)
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.
The Difference of One Vote or One Day: Reviewing the Demographics of Florida's Death Row After Hurst v. Florida
Publication: University of Miami Law Review (2020)
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 is home to one of the largest death row populations in the country. Thus, understanding Florida’s capital sentencing scheme is important for understanding capital punishment nationwide.
This Article analyzes the empirical demographics of Florida’s death row population and reviews how defendants are sentenced to death and ultimately executed in Florida. The analysis reveals that although age is not a factor upon which murder/manslaughter defendants are discriminated against in the sentencing process, gender and race are. With respect to the death penalty, gender discrimination appears consistent, but racial discrimination appears inconsistent and, instead, more apparent in the processes that occur before defendants are actually sent to death row. Additionally, the analysis suggests the absence of discrimination in capital sentencing and executions because the racial, age, and ethnic makeup of Florida’s death row and, more specifically, those who are executed in Florida, are almost completely unpredictable.
Further, the U.S. Supreme Court’s 2016 decision in Hurst v. Florida, together with the Supreme Court of Florida’s decisions on remand in Hurst v. State and other related decisions, upended capital sentencing in Florida and beyond. This Article examines how the Supreme Court of Florida’s post-Hurst framework—which the Eleventh Circuit has also been called upon to review and implement in reviewing several federal habeas claims since Hurst––affected Florida’s death row empirically. In doing so, this Article foreshadows how the Court’s 2020 decision in State v. Poole, which recedes from the Court’s decision on remand in Hurst, and other potential decisions in the future may affect Florida’s death row.
Judicial Independence
Neither the Problem Nor the Solution Lies with the Judiciary: Response to Robertson's Judicial Impartiality in a Partisan Era
Publication: Florida Law Review Online (2018)
Response to Cassandra Burke Robertson, Judicial Impartiality in a Partisan Era
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.
The Federal Advantage: Why Today's Polarized Politics Pose the Greatest Threat to State Courts
Publication: Elon Law Review (Symposium, 2019)
Throughout history, our country has struggled to insulate our judiciary from improper outside influence and political attacks. In some contexts, the polarization of contemporary politics may drive change and progress. However, improper, politically charged discourse poses a great threat to the judiciary—the one branch of government intended to be independent, or free from political influence. As with the rest of the federal government, federal courts—especially the U.S. Supreme Court—are scrutinized each time they issue a decision, especially those addressing high-profile issues.
But conversations regarding judicial independence must include state court judges, who are responsible for hearing ninety-five percent of the country’s cases. State court judges are even more vulnerable to the threat of improper influence and political attacks than federal courts. Thanks to constitutional mechanisms like Article III, the federal judiciary is better equipped to retain its independence even in the face of improper political attacks. Modern politics poses the greatest threat to our country’s state court judges. As a result, this Essay focuses on the importance of including state court judges in that important conversation and explains how the state judiciaries can look to the federal judiciary for guidance in counteracting this threat.
Other Topics
Atlantic Marine After Ten Years
Coauthor: Emily Plakon
Publication: Franchise Law Journal (forthcoming 2023)
This article reviews litigation related to forum selection clauses ten years after the U.S. Supreme Court's landmark decision in Atlantic Marine Construction Co., Inc. v. U.S. District Court for the Western District of Texas.
The Viability of Change: Finding Abortion in Equality after Obergefell
Coauthor: Riley Erin Fredrick
Publication: NYU Journal of Legislation & Public Policy (2020)
Until the U.S. Supreme Court's decision in Obergefell v. Hodges, the doctrine surrounding the Equal Protection and Due Process Clauses of the Fourteenth Amendment indicated two clearly distinct clauses. As the literature explains, that distinction seems to explain the Court's rationale in prior landmark cases grounding previously unrecognized constitutional rights in due process. Pertinent here, the Court's desire to use history to support its holding that the Fourteenth Amendment protects the right to abortion explains why the Court, in its landmark decision in Roe v. Wade, relied on the Due Process Clause as the source of the right.
However, since the Court’s decision in Roe, scholars have debated whether the Equal Protection Clause would have provided a more appropriate rationale—a more sound basis for determining that the Constitution protects the right to choose. Also since Roe, the Court has continuously debated the proper framework for reviewing abortion legislation. As abortion remains at the forefront of national debate and on the Court’s docket, it is likely that providing new routes, especially more sound ones, to protecting the constitutional right to abortion is now more critical than ever.
This Article explains how Justice Kennedy's majority opinion in Obergefell significantly changed the relationship between the Due Process and Equal Protection Clauses of the Fourteenth Amendment. After that decision, the two clauses are not so distinct but, rather, operate cooperatively. As a result, this Article argues, Obergefell opened the door for the Court to ground the right to abortion in equal protection—as scholars have urged since Roe—while still maintaining the desired requisite historical support.
Student Notes
The Second Amendment Burden: Arming Courts with a Workable Standard for Reviewing Gun Safety Legislation
Publication: Florida State University Law Review (2018)
Two controversial topics; one framework. Jurisprudence surrounding the Second Amendment to the U.S. Constitution lacks a workable standard under which courts are to review gun control legislation. This Note presents an intersectional argument whereby the abortion “undue burden” framework is applied to Second Amendment legislation. Through this approach of applying the abortion framework to gun control legislation, like those recently proposed or discussed, this Note argues that these provisions would likely be constitutional. Though abortion is at the center of this discussion, this Note does not aim to contribute to discourse concerning reproductive rights and accepts prima facie the current-standing framework.
Filling the Gap of Domestic Violence Protection: Returning Human Rights to U.S. Victims
Publication: Florida State University Law Review (2017)
Tiffanie Suzanne Perry Scholarship Recipient
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.
"[R]elegated Through No Fault of Their Own to a More Difficult' System: Applying the Obergefell Opinion to Custody Principles
Publication: The Modern American (American University Washington College of Law) (2016)
The language of the U.S. Supreme Court’s ruling in Obergefell v. Hodges will be interpreted and scrutinized for years to come due to the opinion’s wide breadth of impact across multiple areas of law. But, 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, but could potentially transform child custody law and the controlling best interests analysis framework. Namely, the Court imposes a per se presumption that a marital relationship creates stability and continuity for parenting. This piece explains the majority and dissenting opinions’ reasoning and structure, then dissects statements within the opinions that could damage the balance necessary to maintain the current, delicate child custody system. The paper discusses the assumptions underlying the Court’s statements and offers counterpoints and empirical evidence to the contrary. Then, the paper proposes solutions to mitigate the effects of an unjustified presumption of stability within a marriage before custody law is overtaken by the same.
Giving the Pawns a Voice: A Call for Mandatory Representation of Children in High-Conflict Custody Battles
Publication: Thurgood Marshall School of Law Journal on Gender Race and Justice (2015)
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.
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