State Politics

Plan to treat undocumented migrants more harshly in criminal court unlikely to go far

Detained immigrants walk back to their housing units following lunch at the U.S. Immigration and Customs Enforcement (ICE) detention facility on July 30, 2010 in Florence, Arizona. Most immigrants at the center are awaiting deportation or removal and return to their home countries, while some are interned at the facility while their immigration cases are being reviewed.
Detained immigrants walk back to their housing units following lunch at the U.S. Immigration and Customs Enforcement (ICE) detention facility on July 30, 2010 in Florence, Arizona. Most immigrants at the center are awaiting deportation or removal and return to their home countries, while some are interned at the facility while their immigration cases are being reviewed. Getty Images

More than 1,800 undocumented immigrants currently serving time in Florida prisons for felony offenses such as murder or armed burglary could have faced years or even decades more behind bars — at Florida taxpayers’ expense — had a proposal being vetted now by state lawmakers already been law.

Citing a desire to “keep our citizens and constituents safe,” Elkton Republican Sen. Travis Hutson — for the second year in a row — wants to impose stiffer penalties on undocumented immigrants than U.S. citizens or legal residents would otherwise face for the same violent crimes.

Last year, Hutson’s proposal was never considered. But 2017 offers a different dynamic that’s allowing his idea to get at least some consideration and put immigrant advocates on edge.

More conservative Republicans now hold influential positions in the Florida Senate, and the upcoming legislative session comes after a presidential campaign in which illegal immigration was a driving issue and as a Trump White House makes it a priority to crack down on undocumented immigrants — particularly those who commit crimes.

White House Press Secretary Sean Spicer talked about updates to President Donald Trump's immigration executive order during Wednesday's press briefing. According to Spicer, legal permanent residents will now be allowed to enter the United States w

Hutson and other Republican senators — including Senate President Joe Negron, of Stuart — argue enhanced criminal penalties are warranted because undocumented immigrants already flout the law by being in the country illegally.

“You’ve broken the rules to get here, and then you have the temerity to violate our laws and commit violent crimes against our citizens, so I do think that some enhanced penalties are appropriate in that circumstance,” Negron said.

RELATED: On heels of Trump order, Florida lawmakers also want to penalize ‘sanctuaries’

But even with that endorsement, Hutson’s proposal (SB 120) isn’t expected to earn enough support to clear both chambers of the Republican-led Legislature.

The House hasn’t made it an early priority as the Senate has, and Hutson’s plan has drawn swift rebuke from immigrant advocates and some religious groups, who argue the idea is unjust and discriminatory.

“Unlawful presence is not criminal behavior; it is a civil violation of our immigration laws,” Michael Sheedy, executive director of the Florida Conference of Catholic Bishops, wrote in a letter to senators last week. “It cannot be presumed that those who are undocumented have no regard for our criminal justice system and laws.”

As well, many lawmakers — mostly Democrats, but also quietly some Republicans — feel the proposal is unconstitutional.

The bulk of state and federal case law shows efforts to treat one criminal defendant more severely than another based on group affiliation, national origin or immigration status violate the U.S. Constitution’s provisions of due process and equal protection.

“There are serious concerns, and the taxpayers of Florida would have to pay for a rather lengthy litigation against this bill,” Scott McCoy, senior policy counsel for the Southern Poverty Law Center in Tallahassee, told senators last week.

Unlawful presence is not criminal behavior; it is a civil violation of our immigration laws. It cannot be presumed that those who are undocumented have no regard for our criminal justice system and laws.

Michael Sheedy, executive director of the Florida Conference of Catholic Bishops, in letter to Senate Judiciary Committee

No other state subjects undocumented immigrants to enhanced criminal penalties simply by virtue of their immigration status, although there is a similar proposal before the Texas legislature this year.

Hutson hinges his counterargument on an Indiana law that held up on appeal in 2008. It allows a defendant’s immigration status to be used as an aggravating factor at sentencing.

But Hutson’s proposal doesn’t do that. His would automatically reclassify offenses committed by an undocumented immigrant to the next highest degree. So a first-degree misdemeanor becomes a third-degree felony, a third-degree felony becomes a second-degree felony, and so on — resulting in potentially years or decades more prison time.

Hutson’s bill, as it did last year, initially applied to a sweeping range of crimes. But he compromised with Democrats and opposition groups so it now applies to only five severe offenses, four felonies — murder, sexual battery, armed burglary and aggravated assault with a deadly weapon — and one first-degree misdemeanor: throwing, placing or discharging a bomb or destructive device.

“It originally went after bad guys that were violent but didn’t go after the ones who intended to do bad things,” Hutson said. “The five offenses I’ve chosen, people have to think about and go out and do, and it’s not just spur of the moment.”

4,754 inmates in Florida prisons were undocumented immigrants, as of June 30, comprising less than 5 percent of the total inmate population

Keeping undocumented immigrants in prison longer, though, would create additional costs Florida taxpayers would have to bear.

Legislative analysts, working with the Florida Department of Corrections, have not yet done a cost-estimate for Hutson’s narrowed proposal. Under the initial bill, though, DOC officials estimated that by the third year under the new law, taxpayers would pay an extra $180,000 that year to house 31 inmates affected by the longer prison sentences.

According to the state DOC, there were 4,754 undocumented immigrants in state prisons as of June 30, 2016 — comprising less than 5 percent of the inmate population. Almost 40 percent, or about 1,800 inmates, committed one of the five crimes designated in Hutson’s revised bill.

Hutson said he thought up the proposal when seeking a way for the state to act on illegal immigration, which is under the federal government’s authority.

“If they [undocumented immigrants] have served their 10-, 15-, 20-year sentence, we can’t hold them. We have to let them go,” Hutson said. “So if the feds aren’t deporting, at least I can keep them in a little extra longer to keep our citizens safe.”

However — while each deportation case can be different —undocumented immigrants convicted of severe crimes are usually handed over to U.S. Immigration and Customs Enforcement once they finish their prison sentence.

They then remain in federal custody while awaiting deportation proceedings; how long that takes can vary and depend on a variety of factors, such as the immigrant’s home country. (It’s unclear yet how the deportation process might be affected by recent executive orders President Donald Trump has issued.)

For the 2016 fiscal year that ended Sept. 30, ICE deported nearly 139,000 convicted criminals nationwide, which accounted for 58 percent of all deportations that year. State-by-state figures are unavailable.

Although Hutson has compromised on his original proposal, those changes probably won’t be enough to make the bill palatable to critics.

The four Democrats on the Senate Judiciary Committee still voted “no” when five Republicans — including Miami-Dade Sens. René García and Anitere Flores — voted to advance Hutson’s amended bill last week out of its first of three committee stops. (Almost two dozen audience members urged senators to reject the bill, while only one spoke in favor of it.)

“I’m most likely going to vote ‘no’ on that bill and many people in my caucus are probably going to do exactly the same,” said Senate Democratic Leader Oscar Braynon, of Miami Gardens. “We think it may be somewhat unfair to punish someone because they’re an immigrant.”

Hutson’s bill was able to score a hearing this year because Senate Judiciary chairman Greg Steube, R-Sarasota, is a co-sponsor. Other key senators have Hutson’s back, too — such as Negron and Sen. Aaron Bean, a Fernandina Beach Republican who chairs the criminal and civil justice budget committee, which is slated to next consider the bill.

There’s frustration out there with immigration, and this is just a small step for us to take.

State Sen. Aaron Bean, R-Fernandina Beach

“We’ll give that full consideration,” Bean said. “There’s frustration out there with immigration, and this is just a small step for us to take.”

But while Hutson’s measure could inch along in the Senate, the House version (HB 83), filed by Cape Coral Republican Rep. Dane Eagle, isn’t on the radar.

(Eagle didn’t return a request for comment. He said in a statement when introducing the bill in December that the “federal government has been asleep at the wheel” on illegal immigration, and because the state doesn’t have the power to deport, it can at least prosecute undocumented immigrants with “tougher” laws.)

Eagle’s bill hasn’t been scheduled for a first hearing before the House’s criminal justice committee; its chairman — Dover Republican Ross Spano — did not return a message seeking comment about whether he planned to take it up.

Regardless, critics are prepared to fight.

“It’s disappointing to continue to see these attacks on immigrants,” Francesca Menes, policy and advocacy director for the Florida Immigrant Coalition, said in a statement. “Increasing penalties solely based on a person’s immigration status is wrong.”

Kristen M. Clark: 850-222-3095, kclark@miamiherald.com, @ByKristenMClark

Undocumented immigrants in Florida prisons

Total Florida inmate population: 99,119

Inmates who are undocumented immigrants: 4,754 (4.8 percent)

Of those:

▪ 1,088 committed murder

▪ 596 committed sexual battery

▪ 105 committed armed burglary

▪ 33 committed aggravated assault with a deadly weapon

▪ 0 were imprisoned for throwing, placing or discharging a destructive device or bomb (It’s a first-degree misdemeanor.)

▪ 2,932 committed some other offense

Source: Florida Department of Corrections, as of June 30, 2016.

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