TALLAHASSEE, Fla. (AP) — For most people in Florida, misdemeanor theft can result in up to a year in jail and a $1,000 fine. For an immigrant illegally in Florida, that same crime now carries a felony punishment of up to five years behind bars and a $5,000 fine.
The new laws in Florida come as President Donald Trump cracks down on illegal immigration. They impose harsher penalties for offenses committed by people illegally in the U.S. than for everyone else. The consequences are particularly stiff for first-degree murder, which now carries an automatic death sentence for anyone who is in the U.S. illegally.
While Florida is more aggressive than most, there are other states considering similar measures to enhance criminal penalties based on immigration status.
A deterrence, but is it constitutional?
Republican Gov. Ron DeSantis says “Florida will be safer and securer,” and a model for other states, because of its sweeping immigration laws.
The stiffer penalties are meant to be a deterrent, Republican state Rep. Lawrence McClure said.
“Don’t come to the state of Florida illegally,” he said. “That’s the premise.”
Some civil rights advocates and legal experts are raising alarm.
The laws are “leading into a head-on collision with the constitutional guarantee of equal protection to everyone who is in the United States,” said César Cuauhtémoc García Hernández, a law professor at Ohio State University who specializes in immigration and criminal law.
Are mandatory death sentences allowed?
On his first day in office, Trump ordered a renewed emphasis on the death penalty. His executive order highlighted two particular grounds for it: murdering a law enforcement officer or committing any capital offense while in the U.S. illegally. But jurors and federal judges would still decide whether to impose the death sentence.
The U.S. Supreme Court in 1976 ruled North Carolina’s mandatory death sentence for first-degree murder violated the Constitution’s prohibition on cruel and unusual punishment. States since then have generally used court proceedings in which jurors first decide guilt, then weigh aggravating and mitigating factors when deciding whether defendants should be sentenced to death.
“There is longstanding precedent making clear that mandatory death penalty laws are unconstitutional,” said Kara Gross, legislative director and senior policy counsel for the American Civil Liberties Union of Florida.
But Florida’s new laws eliminate judicial discretion in certain cases. They require courts to impose a death sentence on defendants in the U.S. illegally who are found guilty of capital offenses such as first-degree murder or child rape.
Republican state Sen. Randy Fine acknowledged the legislation he co-sponsored will likely face a legal challenge, but he expects the Supreme Court to overturn its prior ruling.
“It’s almost 50 years later,” Fine said, adding, “The Supreme Court changes its mind on things.”
More time for the same crime
Last year, DeSantis signed a law enhancing penalties for people who commit state felonies after being previously deported and convicted of illegal reentry under federal law. The measure increased sentences by one classification, meaning someone convicted of a third-degree felony typically punishable by up to five years in prison and a $5,000 fine would instead be sentenced for a second-degree felony punishable by up to 15 years in prison and a $10,000 fine.
The latest Florida laws apply similar sentencing enhancements to anyone in the U.S. illegally, regardless of any convictions for reentering, and apply the enhanced penalties to misdemeanors.
If the new laws get challenged, García Hernández said, a court would likely look to a 1982 U.S. Supreme Court ruling. The justices said Texas failed to show a substantial state interest for a law barring state school funding for children not “legally admitted” to the U.S. The high court cited the Constitution’s 14th Amendment, which says a state shall not “deny to any person within its jurisdiction the equal protection of the laws.”
To defend Florida’s law, state attorneys would probably have to answer a similar question: “What is your compelling justification for treating individuals who are accused of a crime — the same crime — differently based solely on their citizenship status?” García Hernández said.
Other states may follow Florida’s lead
Legislation pending in several states — including Alabama, Idaho, Indiana, Minnesota, South Carolina and Texas — would allow enhanced penalties for some state crimes committed by immigrants illegally in the U.S., according to an Associated Press analysis using the bill-tracking software Plural.
A bill by Texas state Sen. Pete Flores would raise penalties one notch for most felonies committed by people in the U.S. illegally.
Flores, who is chair of the Senate Criminal Justice Committee and co-founder of the Texas Hispanic Republican Caucus, described the legislation as “a common-sense, tough-on-crime response to enforce the rule of law and better protect Texans.”
Legislation that passed the Utah Senate and is now pending in the House takes a more narrow approach focused on theft and drug dealing. It would impose mandatory jail sentences, without the potential for early release, for repeat offenders who are lawful U.S. residents or for any offenders who were previously deported and then convicted in federal court of illegally reentering the U.S.
Republican state Sen. Cal Musselman said his legislation targets “a small group of individuals.” Law enforcement officers have told him they see “a clear connection between being deported multiple times, coming in, and committing crimes within the state.”
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Lieb reported from Jefferson City, Missouri.
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Payne is a corps member for The Associated Press/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on undercovered issues.
