Florida has enacted new legislation that dramatically increases criminal penalties for individuals living in the United States illegally, a move that has sparked debate over constitutional rights and equal protection under the law.
Under the new laws, undocumented immigrants in Florida who commit even minor crimes such as misdemeanor theft may now face felony charges, with potential punishments of up to five years in prison and a $5,000 fine. In contrast, legal residents or citizens committing the same offense would be subject to a maximum of one year in jail and a $1,000 fine.
The legislation marks a significant shift in how Florida handles criminal cases involving immigration status. It comes amid broader national efforts to address illegal immigration, with former President Donald Trump previously urging stricter enforcement and the use of the death penalty in specific cases.
Governor Ron DeSantis, a Republican, has championed the new laws as part of his administration’s commitment to making Florida “safer and securer.” Speaking in support of the changes, Republican state Representative Lawrence McClure said the intent is to deter undocumented immigrants from entering or remaining in Florida. “Don’t come to the state of Florida illegally,” he said. “That’s the premise.”
One of the most controversial elements of the legislation is its provision mandating the death penalty for undocumented immigrants convicted of certain capital offenses, including first-degree murder and child rape. These cases would eliminate the court’s discretion and automatically impose a death sentence upon conviction.
Legal experts and civil rights advocates have raised serious concerns about the constitutionality of the new measures. César Cuauhtémoc García Hernández, a law professor at Ohio State University who specializes in immigration and criminal law, warned that the law could violate the constitutional guarantee of equal protection to all persons within the United States. “The laws are leading into a head-on collision with the constitutional guarantee of equal protection to everyone who is in the United States,” he said.
The U.S. Supreme Court previously ruled in 1976 that mandatory death sentences violate the Eighth Amendment’s prohibition on cruel and unusual punishment. That ruling, which invalidated a North Carolina law imposing automatic death penalties for first-degree murder, set a precedent requiring individualized sentencing hearings. Defendants must have the opportunity to present mitigating circumstances before a sentence of death is imposed.
Kara Gross, legislative director and senior policy counsel for the American Civil Liberties Union of Florida, echoed that sentiment, saying, “There is longstanding precedent making clear that mandatory death penalty laws are unconstitutional.”
Despite this, supporters of the Florida legislation, including Republican state Senator Randy Fine, argue that it is time for the courts to revisit that precedent. “It’s almost 50 years later,” Fine said. “The Supreme Court changes its mind on things.”
This is not the first time Florida has enacted tougher laws targeting undocumented immigrants. In 2023, Governor DeSantis signed legislation enhancing penalties for undocumented individuals who commit felonies after having previously been deported and convicted of illegal reentry under federal law. That law increased the severity of penalties by one classification—raising a third-degree felony, typically punishable by up to five years in prison and a $5,000 fine, to a second-degree felony carrying up to 15 years and a $10,000 fine.
The latest laws go even further. They apply similar sentence enhancements not only to previously deported individuals but also to all undocumented immigrants, even for misdemeanor offenses.
According to García Hernández, any legal challenge to the new laws would likely reference the 1982 Supreme Court ruling in Plyler v. Doe, which struck down a Texas statute denying public school funding to children not legally admitted into the United States. The court ruled that the Texas law violated the Equal Protection Clause of the 14th Amendment, which states that a state may not “deny to any person within its jurisdiction the equal protection of the laws.”
To defend Florida’s law, state attorneys would likely need to demonstrate a compelling state interest in treating defendants differently based solely on immigration status. “What is your compelling justification for treating individuals who are accused of a crime — the same crime — differently based solely on their citizenship status?” García Hernández said.
Florida is not alone in considering such measures. According to an Associated Press analysis using Plural’s legislative tracking software, similar bills are under review in several other states, including Alabama, Idaho, Indiana, Minnesota, South Carolina, and Texas.
In Texas, Republican state Senator Pete Flores introduced a bill that would elevate penalties by one level for most felonies committed by undocumented immigrants. Flores, co-founder of the Texas Hispanic Republican Caucus and chair of the Senate Criminal Justice Committee, described the bill as a “common-sense, tough-on-crime response to enforce the rule of law and better protect Texans.”
Utah’s state Senate recently passed legislation focused on theft and drug dealing, which would mandate jail sentences without the possibility of early release for repeat offenders who are legal residents, or for any offender who was previously deported and convicted in federal court of reentering the U.S. illegally. The bill is currently under consideration in the Utah House of Representatives.
Republican state Senator Cal Musselman, the bill’s sponsor, said his measure targets “a small group of individuals” and is based on feedback from law enforcement, who report a pattern of repeat criminal behavior among previously deported individuals.
The legal and political fallout from Florida’s new laws is expected to be significant. Advocacy groups are preparing constitutional challenges while legal scholars and civil rights organizations continue to scrutinize the policy’s broader implications.
As the debate continues, Florida’s legislation may become a testing ground for the limits of state authority in criminalizing immigration status—and for how far states can go in setting different standards of justice based on citizenship.
