Can Florida automatically sentence undocumented immigrants to death for capital crimes?

Florida lawmakers want to make the death penalty mandatory for immigrants in the country illegally who are convicted of capital crimes, a change that would remove the jury from the process and would challenge existing constitutional precedent.

The idea is part of an immigration package that resulted from a compromise deal between Gov. Ron DeSantis and legislative leaders that’s meant to bolster President Donald Trump’s immigration agenda.

Sen. Randy Fine, R-Melbourne, co-sponsored the bill that contains the death penalty proposal. He said the change is a Trump priority.

But the Legislature’s proposal goes beyond what Trump’s executive order calls for.

Among the flurry of executive orders Trump signed on his first day in office was one calling for the U.S. attorney general to pursue the death penalty for severe crimes, including specifically “a capital crime committed by an alien illegally present in this country.”

Trump’s order would require the prosecutors to seek the death penalty but would preserve a jury’s ability to deliberate on whether a death sentence is warranted or not.

Florida’s bill goes further. It says that a court “shall sentence a defendant who is an unauthorized alien and who is convicted or adjudicated guilty of a capital felony to a sentence of death.” That leaves no room for jury or judicial discretion.

‘Cruel and unusual’

Stephen Harper, the founder of Florida International University’s Florida Center for Capital Representation, said it’s unconstitutional to have mandatory death sentences.

Harper said the U.S. Supreme Court has determined that there needs to be individualized sentencing for each person and that a jury must be able to weigh aggravating and mitigating factors.

“It’s an Eighth Amendment issue, and the main thing about the Eighth Amendment is you can’t do cruel and unusual punishment,” Harper said. “It would be cruel and unusual to kill someone who otherwise would not be killed.”

Fine, the bill co-sponsor, said the U.S. Supreme Court hasn’t ever dealt with the idea of illegal immigration being an aggravating factor.

“This specific instance has not been tested in court,” Fine said. “We will see what happens. Me personally, I’m optimistic.”

50 years of case law

Robin Maher, the executive director of the Death Penalty Information Center, said the U.S. Supreme Court’s 1976 case that prohibited mandatory death sentences is a “foundational decision” that has shaped much of the court’s rulings on the death penalty that followed.

The 1976 legal question was one of five key cases the U.S. Supreme Court considered as it reauthorized the death penalty, Maher said.

“That’s why I say it would be incredibly difficult to change this decision without also disrupting a key rationale that has flowed through all of the court’s jurisprudence,” Maher said.

Maher said a person’s legal status has never been used as an aggravating factor in death penalty cases. She said people would likely say it was inappropriate if lawmakers required mandatory death sentences for other sub-groups, like women or people of a certain race.

More than murder

The Senate’s bill analysis notes that the U.S. Supreme Court has struck down mandatory death sentences before, and that the new proposal could face conflicts with another existing Supreme Court precedent that restricts the death penalty to murder cases.

In Florida, capital crimes include homicide as well as things like controlled substance trafficking and sexual abuse of young children. That means the bill’s proposal could greenlight mandatory death sentences for those crimes as well.

Florida lawmakers have already sought to challenge that ruling. In 2023, DeSantis pushed for and got a bill that would allow prosecutors to seek the death penalty for child rape.

Florida also in 2023 changed its death penalty laws to allow eight people out of a jury of 12 to sentence someone to death, instead of requiring a unanimous ruling. The change makes Florida one of only two states to not require a full jury’s affirmative vote.

This story was originally published February 12, 2025 at 3:32 PM.