Florida lawmakers are considering a bill that would increase penalties and jail time for people unlawfully in the U.S. convicted of certain violent offenses. The bill is progressing through the House with sponsor Dane Eagle, R-Cape Coral, arguing it would increase public safety and send a message to federal immigration authorities. Opponents question the bill’s constitutionality, and say Rep. Eagle is misusing data to bolster his case.
HB 83 would increase penalties for undocumented immigrants convicted of violent crimes including sexual battery, aggravated assault with a deadly weapon, murder, armed burglary, and throwing, placing or discharging a destructive device or bomb. For example, an unlawfully present alien charged with a first-degree misdemeanor could find their charge reclassified to a harsher third degree felony and an alien charged with a second-degree felony could wind up facing first-degree felony penalties.
During a House Criminal Justice Subcommittee meeting in March, Eagle said his bill points to the federal government’s sole authority to deport undocumented immigrants.
“The idea here is for these 3,300 people, or potentially more, who are committing these violent crimes, rather than sending them back out into the streets, we are keeping them behind bars for these heinous crimes that they committed so the federal government, when they decide to act, knows exactly where they are,” said Eagle.
During that subcommittee meeting, Eagle referred to the number of alien inmates already in Florida’s prison system.
“The Department of Corrections states that there are about 4,754 confirmed alien inmates who are here illegally in our state prison system,” said Eagle. “Seventy one percent of them are there for violent crimes. So that’s 3,375 individuals approximately who are in state prisons, are here illegally and have committed a violent crime.”
Eagle also cited those numbers during a WGCU interview back in December when he had first filed the bill. The problem is that is not what those numbers mean. According to State Department of Corrections Press Secretary Ashley Cook, the term ‘alien inmate’ refers only to non-U.S. citizens and makes no distinction between documented and undocumented immigrants. That makes Eagle’s claims about the numbers of undocumented immigrants in Florida prisons overinflated.
Nazgol Ghandnoosh is a research analyst with the Sentencing Project, a Washington D.C.-based research and advocacy center pushing for criminal justice system reforms. She said this same issue occurs at the federal level as well.
“What I’ve noticed is some lawmakers and pundits sometimes misuse federal prison statistics to suggest that there are more immigrants behind bars then there actually are,” said Ghandnoosh.
Ghandnoosh co-authored a study released in March that contrasts convictions and federal prison data with rates of immigration. The study finds that nationally, crime rates now are at about half of what they were in the 1990s. It also finds communities that have experienced greater increases in immigrants have experienced even greater reductions in crime than the nation overall.
“We felt that it was necessary to look at these claims that President Trump, especially, has been very vocal about suggesting that immigration policy can be used as an effective form of crime policy,” said Ghandnoosh.
“There’s no evidence to support that relationship. So we wanted to make it clear that if you’re talking about crime policy and if you’re talking about reducing crime rates, restricting immigration is not the way to get there,” she said.
The findings of the Sentencing Project study echo those of a report released last year by the American Immigration Council that finds immigrants are less likely to commit serious crimes than U.S. citizens. That report notes that while the country’s undocumented immigrant population tripled to more than 11 million people between 1990 and 2013, FBI data shows the overall violent crime rate declined 48% over that same time.
Another potential issue with the bill concerns its constitutionality. Rep. Eagle said that while such challenges would be up to the courts to decide, there is legal precedent for two cases of increased sanctions.
“One is for hate crimes. One is for crimes against a police officer. So that part of it is already upheld to be constitutional,” said Eagle. “There are two cases in Indiana and D.C. appellate courts that say that a defendant’s status as an illegal alien is a valid sentencing aggravator.”
Florida Gulf Coast University constitutional law professor and attorney Pamela Seay countered that the bill violates the ‘Equal Protection Clause’ of the 14th Amendment, which forbids states from restricting people’s basic rights.
“For example, you’ve got some mitigating circumstances where you really didn’t mean to do it, but you injured someone anyway," said Seay. "That’s a mitigating circumstance. You can have an aggravating circumstance where you have a hate crime. ‘I’m doing this because I hate this particular kind of person, therefore I harm them.’ Well, you can enhance the penalty because of that aggravating circumstance. That’s one way to treat this, but that’s not what this does. This says, ‘Because, not of your behavior, but because of a status, you are being penalized more than anyone else.’ To me as a constitutional attorney, I believe that is problematic,” she said.
Seay said the bill also poorly defines who would be subject to increased penalties. It targets quote, “aliens unlawfully present in the United States,” but Seay said, that does not differentiate between undocumented immigrants and those she called, ‘out of status.’
“More often than not a person can become out of status. They’ve come here with an ordinary B visa...They stay longer than the visa lasts. It expires. This is out of status,” said Seay.
“You’re not illegal. You just don’t have the proper status to be here. You went through a process. You filed your paperwork. You’ve gone through everything you needed to do to obtain that visa. So, you’re not undocumented. You’re not illegal. You simply have overstayed your visa which simply means you are out of status,” said Seay.
Seay said even for truly undocumented immigrants, their status can be a civil matter or a criminal one depending upon whether the person crossed the border with the intention of violating the law.
Despite concerns over misuse of data and the bill’s potential unconstitutionality, both the House bill titled “Offenses By Aliens Unlawfully present in the United States” and its Senate companion are awaiting consideration in their third committees.