It’s not a criminal violation to be in the U.S. illegally. That’s why undocumented immigrants are deported rather than jailed.
Rep. Dane Eagle, R-Cape Coral, is advancing a measure for increased sentences on undocumented immigrants for crimes like aggravated assault and murder. So a first-degree misdemeanor would turn into a third degree felony and so on. Eagle said the measure applies to violent criminals.
“When it comes to some violent felons, we need to lock them up and throw away the key," he said. "And what we are talking about here are violent felons where our taxpayer dollars should going to incarcerate them.”
Florida would be the first state to have a law like this. Courts have ruled undocumented people in the U.S. have protection under the Constitution. That means they have due process rights when accused of a crime. Eagle argues his proposal is similar to harsher penalties for hate crimes, which courts have ruled constitutional.
But Scott McCoy with the Southern Poverty Law Center said not so fast. There has to be a relationship between the crime and the person. He cites a case where the Florida Supreme Court ruled it was unconstitutional for gang members to get harsher penalties for crimes unrelated to their gang association.
“If I’m in a gang and I shoplift a sandwich to feed myself, there’s no connection to my gang membership and the fact that I committed that crime," he said. "But if you enhance the penalty simply because I committed that crime and I’m a member of a gang, you’re basically enhancing because of the status.”
McCoy said using a person’s nationality to treat them differently violates equal protection laws. The Constitution bars discrimination based on national origin.
But Eagle said just because the court may throw out the law doesn’t mean the legislature shouldn’t pass it.
“We don’t as a House say ‘the governor doesn’t like this, so we’re not going to pursue this agenda.’ Otherwise it would be a pretty silent session that we’re having right now," he said. "The governor doesn’t say ‘the House doesn’t like this so I’m not going to pursue my agenda.’ We should not say ‘I don’t know what the court going’s to do, but I’m afraid of they’re going to say, so we’re not going to pursue this legislation.’ The fact is it’s purely speculation and until we present something like this for the courts to decide on, it will always be speculation.”
Rep. Ramon Alexander, D-Tallahassee, said Eagle’s legislation increasing penalties for undocumented people wastes money the state could spend elsewhere. And Ingrid Delago of the Florida Conference of Catholic Bishops said making a misdemeanor into a felony hurts an undocumented person’s chance to gain legal status.
“Unlawful presence is not a crime, it is a civil violation so we cannot presume undocumented persons have no regard for our laws, especially those who were brought as children or who did enter legally.”
Eagle’s legislation is still moving through committees, but it will likely face legal challenges if it becomes law. The Associated Press reports Florida lawmakers have spent more than $230 million on lawyers since 2011. The Florida Supreme Court has thrown out several laws the Republican-majority legislature approved, including the state’s death penalty statute, drug testing welfare recipients and a law barring doctors from asking patients about gun ownership.