New immigration legislation passes Committee in both the House and Senate
Yesterday, the Senate Appropriations Committee approved the legislation with a vote of 11-7. The House Budget Committee approved the legislation with a vote of 22-8.
As TFDP previously covered, the Legislature proposed new immigration legislation this week that maintains a provision for the mandatory death penalty for any “unauthorized alien” convicted of a capital offense.
Yesterday, the legislation was approved by Committee in both the House and the Senate. The Senate Appropriations Committee approved the legislation with a vote of 11-7. The House Budget Committee approved the legislation with a vote of 22-8.
A video of the House Committee meeting is available here. In introducing the legislation, it was said that this legislation has only minimal changes from the prior legislation that was passed. There was discussion at the meeting about the constitutionality of the death penalty provision in the legislation. This begins at 17:41 in the video linked above. The discussion proceeded as follows:
Rep. Driskell: “Why are we moving forward with a bill that we know has unconstitutional language in it?”
Rep. Garrison: There was a lengthy discussion related to the prior legislation that had an identical provision. “This law . . . is not intended to intended to superseded our current death penalty jurisprudence. What we are saying is as to this classification of defendant, so long as the jury makes a finding beyond a reasonable doubt that the aggravator of having committed the capital felony while being an unauthorized alien . . . complies with Hurst. It’s obviously going to be litigated. . . . We believe we’ve complied with the requirements of Hurst.”
Rep. Driskell: Would the jury be included in the decision because that’s not what the bill says?
Rep. Garrison: No. “This is a different approach . . . .”
There was further discussion beginning around 23:15. Rep. Hunschofsky read the provision aloud and noted there is not reference of a jury and asked how the provision is not in conflict with current law. Rep. Garrison’s response: “Nothing in this bill in any way erodes the rights of anyone in our criminal system. . . . In the event that the jury finds beyond a reasonable doubt . . . that the crime has been committed . . . and that the defendant . . . is in this country illegally,” then the penalty phase “of existing law is going to be superseded and the Court . . . must impose a sentence of death.” Later:
Rep. Hunschofsky: “Does this mean that the person convicted no longer has the opportunity to have the sentencing proceeding by a jury?”
Rep. Garrison: “The jury makes the recommendation to the Court. . . . The jury would not longer make a recommendation.”
Around 29:00, Rep. Rayner asked about the death penalty provision.
Rep. Rayner: “How does mandating the execution of a foreign national . . . protect the just rights of a foreign national?”
Rep. Garrison: Our criminal system provides rights to all criminal defendants better than any other system in the world. “What we’re saying in this bill is that in the event that you have made the decision to come into this country unlawfully . . . and while you are here you commit a capital crime . . . we’re still going to give you all of the things that you are entitled to . . . . But once that’s happened and the jury found you guilty . . . the death penalty is going to be imposed.”
Rep. Garrison’s comments also made clear that the capital sex crimes are included in the scope of this statute.
TFDP Commentary
In my opinion, Rep. Garrison’s responses misinterpret the U.S. Supreme Court’s holding in Hurst and even the Florida Supreme Court’s interpretation of Hurst in State v. Poole.1 It also misinterprets or adds meaning that does not appear in the text of the provision. Poole requires the jury to find in the penalty phase that at least one aggravating factor has been proven beyond a reasonable doubt. Aggravation is not presented in the guilt phase. If the penalty phase does not occur, as Rep. Garrison says, then Hurst is not satisfied. Nor are other constitutional requirements, as I’ve commented on before.
Also, the way the provision is written does not make being an “unauthorized alien” an aggravating factor” under Florida’s current capital sentencing scheme. Nor, as Rep. Hunschofsky noted, does it provide for any jury finding of the defendant’s immigration status.
Isn't Sumner v. Shuman, 483 US 66 (1987), a more significant issue than Hurst? Sumner prohibits mandatory death sentences without an opportunity to present mitigation.