Our Criminal Defense Attorneys Warn of Legal and Human Rights Challenges

Gov. Ron DeSantis has signed two controversial immigration enforcement bills into law, escalating Florida’s role in detaining and prosecuting undocumented individuals. These laws introduce mandatory sentencing policies, expand state involvement in federal immigration enforcement, and strip undocumented students of in-state tuition benefits. As criminal defense attorneys, we are deeply concerned about the legal and constitutional challenges these laws present—particularly their impact on due process, equal protection under the law, and the erosion of jury discretion.

Criminal Penalties Based on Immigration Status

One of the most alarming aspects of the new legislation is the creation of a state-level crime based solely on a person’s immigration status. Under Florida Statutes § 775.0855, undocumented individuals over 18 who knowingly enter Florida without inspection by federal immigration authorities will now face a mandatory nine-month jail sentence.

This law raises serious constitutional concerns:

  • Selective Enforcement and Racial Profiling: Law enforcement officers lack access to federal immigration databases, creating a high risk of racial profiling. Without reliable data, officers may disproportionately target individuals based on appearance rather than actual immigration status.
  • Violation of Equal Protection Rights: The U.S. Constitution guarantees that all individuals—regardless of immigration status—receive equal protection under the law. Penalizing individuals differently for the same offense based on their immigration status sets a dangerous precedent.
  • Criminalizing Presence Without Federal Authority: Immigration law is governed by federal statutes, yet Florida is attempting to create its own criminal penalties for being in the country unlawfully. Courts may find this law preempted by federal immigration law, making it vulnerable to legal challenges.

Additionally, the law enhances penalties for misdemeanors committed by undocumented individuals. This includes minor offenses such as driving without a license—which undocumented immigrants cannot legally obtain in Florida. The result? Jail time for conduct that would otherwise result in a fine for U.S. citizens.

Mandatory Death Penalty for Undocumented Defendants

Florida now imposes a mandatory death sentence for undocumented immigrants convicted of a capital felony, such as murder or child sexual abuse, removing a jury’s ability to consider mitigating factors. This law conflicts with decades of constitutional precedent.

  • In Woodson v. North Carolina (1976), the U.S. Supreme Court struck down mandatory death sentences, ruling that juries must consider individual circumstances before imposing the death penalty.
  • Under Florida Statutes § 921.141, current state law allows for jury discretion in capital cases. By mandating a death sentence based on immigration status, this law directly conflicts with existing Florida statutes and will likely face immediate legal challenges.

Even Trump’s executive order on capital punishment for undocumented individuals allows juries to weigh aggravating and mitigating factors before imposing a sentence. Florida’s law does not. Stripping away jury discretion violates fundamental principles of fairness and due process.

Expanding ICE Cooperation and Extended Detention Without Cause

Florida law enforcement agencies are now required to notify federal immigration authorities of any undocumented person in their custody, providing ICE with access to personal data, including photos and fingerprints. The law further mandates that all Florida sheriffs enroll in ICE’s 287(g) program, training officers to act as immigration agents within state and local facilities.

Key concerns include:

  • Prolonged Detention Without Judicial Oversight: Florida already holds undocumented individuals for up to 48 hours under ICE detainers. The new law extends detention without requiring probable cause or a warrant, which courts have ruled unconstitutional in multiple cases.
  • Loss of Community Trust: Law enforcement officers, including Sheriff Bob Gualtieri of Pinellas County, have warned that aggressive immigration enforcement damages community relationships, making immigrant victims and witnesses afraid to cooperate with police.
  • Lack of Federal Oversight: Local officers trained under 287(g) are not federal agents, yet they will interrogate detainees about their immigration status without federal supervision. This creates a high risk of wrongful detentions and civil rights violations.

Diminished Legal Protections and the Erosion of Due Process

The new immigration laws strip away critical legal protections for undocumented individuals, including:

  • Mandatory Sentences Without Judicial Discretion: Judges will have no ability to adjust sentences based on the facts of a case, increasing the likelihood of excessive and disproportionate punishment.
  • Increased Risk of Wrongful Arrests: Local officers enforcing immigration laws without federal oversight lack the necessary training to distinguish between undocumented and legal residents, leading to wrongful detentions and lawsuits.
  • Unfunded Mandates on Law Enforcement: The state is allocating over $300 million to assist in immigration enforcement, diverting resources away from violent crime investigations and community safety initiatives.

How Criminal Defense Attorneys Are Fighting Back

Criminal defense attorneys across Florida are preparing legal challenges to fight the unconstitutional aspects of these laws. Potential arguments include:

  • Federal Preemption: Immigration law is a federal matter. Florida’s attempt to criminalize undocumented presence violates federal supremacy under the U.S. Constitution.
  • Eighth Amendment Violations: The mandatory death penalty provision is unconstitutional under U.S. Supreme Court precedent, which prohibits automatic death sentences.
  • Fourth and Fifth Amendment Violations: Indefinite detention without judicial oversight and forced cooperation with ICE violate protections against unreasonable searches and seizures and self-incrimination.

The Broader Implications of Florida’s Immigration Crackdown

While Gov. DeSantis and his supporters claim these laws will deter illegal immigration, the practical impact will be widespread fear, wrongful arrests, and constitutional challenges that cost taxpayers millions.

The criminal defense community stands ready to defend the rights of those targeted under these new laws. If you or a loved one is affected, legal help is available to challenge wrongful arrests, excessive sentencing, and constitutional violations.

Contact Musca Law 24/7/365 at 1-888-484-5057 For Your FREE Consultation

Musca Law, P.A. has a team of experienced criminal defense attorneys dedicated to defending people charged in Florida with a criminal or traffic offense. They serve all 67 counties in Florida and are available 24/7/365 at 1-888-484-5057 for your FREE consultation.