State Politics

Lawmakers target criminal undocumented immigrants, despite constitutional questions

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

A controversial plan to impose more prison time on undocumented immigrants who commit severe violent crimes in Florida narrowly passed its second Senate committee on Wednesday, but it’s unlikely to advance much further without buy-in from the House.

The measure (SB 120) has drawn a litany of criticism and questions about its constitutionality from Democratic lawmakers and immigrant advocacy groups, because it would impose harsher penalties on undocumented immigrants than U.S. citizens or legal residents would otherwise face for the same offenses.

“What is it about their immigration status that makes the crime more heinous?” asked Sen. Jeff Clemens, D-Lake Worth. “The fact that somebody is here without papers, how does that make the rape or the murder worse?”

“Because they should not be here, and they are now committing these crimes,” replied Sen. Travis Hutson, R-Elkton, who is sponsoring the proposal for the second year in a row. Last session, it wasn’t considered at all.

MORE: “Plan would treat undocumented migrants more harshly in criminal court”

Members of the Senate’s criminal and civil justice budget committee were divided along party lines, with Republicans advancing it on a 3-2 vote. The bill has only one other committee to clear in the Senate before it could reach the floor.

But a similar measure in the Florida House — where some members also have constitutional concerns — hasn’t been taken up at all yet, and it’s not a priority for House Speaker Richard Corcoran, R-Land O’Lakes.

Channeling the intensified national conversation over undocumented immigrants sparked by the Trump administration’s executive orders, Ocala Republican Sen. Dennis Baxley said Floridians “expect us to do something.”

Immigration enforcement is a federal responsibility, but Hutson and Baxley argue automatically imposing enhanced penalties on undocumented immigrants who are violent criminals is the least the state can do.

“We are going to hold a standard that’s higher to get in control what is an out-of-control situation,” Baxley said.

We do have an underlying problem in our country and in our state, and we need to do what we can to deal with those challenges that are before us.

Sen. Dennis Baxley, R-Ocala

However, legislative analyses of Hutson’s bill indicate his proposal could cross a line.

No other state has such a law, and most 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.

Hutson’s bill — amended Wednesday to only target felony-level offenses — would apply to undocumented immigrants convicted of murder, sexual battery, armed burglary, aggravated assault with a deadly weapon or throwing, placing or discharging a bomb or destructive device.

Offenses by those undocumented immigrants would automatically be reclassified to the next highest level so, for instance, a third-degree felony becomes a second-degree felony — which can mean years or decades more prison time for the offender and a higher cost for Florida taxpayers to house inmates longer.

What is it about their immigration status that makes the crime more heinous?

Sen. Jeff Clemens, D-Lake Worth

More than 1,800 undocumented immigrants — about 40 percent of all undocumented immigrants currently in Florida’s prisons — would have been affected, had the proposal already been law when they were convicted.

Calling the proposal “unconstitutional,” Clemens also chastised the Republican-led Legislature’s recent history of passing unconstitutional bills that “only cost the state of Florida a lot of money in legal fees in fighting these in order to make, what I believe to be, overly political statements.”

Baxley said lawmakers’ work shouldn’t be thwarted “by guessing how the court might rule or who might sue us.”

“I don’t remember us ever deciding that because somebody might not like it and might call it unconstitutional that we weren’t going to do what we could to protect the citizens of Florida,” he said. “We do have an underlying problem in our country and in our state, and we need to do what we can to deal with those challenges that are before us.”

Clemens also questioned why the bill wasn’t assigned to the Criminal Justice Committee for vetting, a decision made by President Joe Negron, R-Stuart.

“That is, in my opinion, a workaround of our process,” Clemens said. “I believe that this bill should have gone through Criminal Justice, along with every bill that deals with sentencing.”

Negron spokeswoman Katie Betta said: “The president referenced the bill to the committees he deemed appropriate, based on his judgment after reviewing the bill.” Negron previously said he supports Hutson’s proposal.

Although the Senate president assigns bills to committees, committee chairmen have the purview to decide which bills they take up. The Criminal Justice Committee chairman — Orlando Democratic Sen. Randolph Bracy — voted with Clemens to oppose Hutson’s bill on Wednesday.

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

▪ 2,932 committed some other offense

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

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