Florida House Representative Dane Eagle (Cape Coral) has introduced a bill in the Florida Legislature to make criminal offenses to be punished more severely if committed by an illegal immigrant. This bill, filed in December of 2016 and currently in the Criminal Justice Subcommittee, would enhance punishments to the next level offense. For instance, a first degree misdemeanor of the first degree becomes a third degree felony, a third degree felony becomes a second degree felony and so on. This change would apply to any criminal offense that involves the use or threat of physical force against another person.
It is unclear whether this bill, if passed, would survive constitutional scrutiny. Opponents would argue that this legislation violates the equal protection clause of the U.S. Constitution by punishing two people differently based upon their alienage. Others would point to the fact that the federal government has a robust immigration policy that preempts states from enacting their own due to the supremacy clause. Specifically they would argue that the United States already has created penalties for those who enter illegally. Also, there becomes the practical reality of how a prosecutor is going to prove someone is here illegally without violating the right to remain silent.
Proponents say this will decrease illegal immigration in Florida and give prosecutors another tool to keep criminals off the streets. They will argue that the law does not directly conflict with any federal law. The state bill does not attempt to change federal law, only compliments it. It does not punish people for being here illegally, but for committing violent crime while being here illegally. Supporters will likely argue that while the equal protection clause applies to illegal immigrants, it is applied in a much less scrutinizing way than when applied to those who are here legally. In Plyler v. Doe, back in 1982, the U.S. Supreme Court reasoned that unlawful status is not a “constitutional irrelevancy” and asked only if the government had a rational basis for different treatment of illegal immigrants compared to others.
As far as our research shows, there is no similar current law on the books in any state, so there are no clear answers to these legal questions. Let us know what you think!