The decision by Florida to issue an arrest warrant against Raúl Castro for conspiracy to commit first-degree murder has a legal consequence that goes beyond the duplication of charges for the downing of the Hermanos al Rescate planes in 1996: no president of the United States could grant clemency to the former Cuban leader for a crime prosecuted under state laws.
The Attorney General of Florida, James Uthmeier, initiated the investigation that led to a warrant for arrest signed by Judge Ariana Fajardo Orshan, president of the Eleventh Judicial Circuit, on October 16. This measure adds to the federal charges filed in May against Castro and five other former Cuban military personnel.
If a communist supporter were to return to the White House, they cannot pardon, cannot commute, cannot immunize these dictators from our state procedures, Uthmeier warned this Monday at a press conference held at Florida International University (FIU).
The coexistence of both procedures introduces a fundamental difference: while the U.S. president has constitutional powers to grant pardons for federal offenses, he lacks the authority to pardon state offenses. This power belongs to the competent institutions of each state, according to their legislation.
An accusation that would survive a federal pardon
Uthmeier himself emphasized the significance of this difference when presenting the new arrest warrant. According to the newspaper El País, the Florida Prosecutor's Office highlighted that state action would prevent a future U.S. government from neutralizing the criminal prosecution through the exercise of presidential pardon powers.
The distinction is outlined in the U.S. Constitution: the president can grant pardons for offenses against the United States, that is, federal crimes, but not for violations of state criminal laws.
In Florida, Article IV, Section 8 of its Constitution and Article 940.01 of its statutes grant the governor the authority to grant state pardons, with the approval of at least two members of their cabinet. Therefore, the case against Castro does not fall outside the realm of any possibility of clemency, but specifically outside the scope of presidential pardon.
This autonomy is particularly significant because both procedures relate to the same incident: the shootdown on February 24, 1996, of two civilian aircraft from Hermanos al Rescate over international waters, in which Armando Alejandre Jr., Carlos Costa, Mario de la Peña, and Pablo Morales lost their lives.
While the federal indictment filed in May includes seven charges against Castro and five other former Cuban military personnel, the state order is based on a charge of conspiracy to commit first-degree murder.
The jurisdiction of Florida and the Cuban spies
The state prosecutor's office maintains that it has jurisdiction over the case because part of the conspiracy took place in Florida, involving Cuban agents infiltrated in Brothers to the Rescue.
According to the sworn statement that supports the order, those spies transmitted information about the organization's flights, monitored military facilities in Key West, and received instructions not to travel on their aircraft during the days scheduled for the operation.
One of them left Florida and returned to Cuba on February 23, 1996, just one day before the attack.
Judge Ariana Fajardo Orshan considered that these elements provided probable cause to attribute Castro's involvement in a criminal conspiracy that was partially carried out in Florida, according to the Miami Herald, which had access to the arrest warrant and the affidavit.
A second legal avenue, but with obstacles to carry it out
The new order does not mean that Castro will appear before a U.S. court anytime soon. The former ruler remains in Cuba, where U.S. authorities do not have the means to directly execute an arrest warrant.
The absence of an operational extradition mechanism between both countries currently hinders the possibility of transferring him to the United States. The state order stipulates that Florida will request his extradition if he is detained in another U.S. jurisdiction.
It does not imply that a potential federal pardon is currently a possibility presented by the Trump administration. The significance of the state initiative lies in that it preserves a path for criminal prosecution independent of the decisions that the White House may make, even under future administrations.
Thirty years after the downing, Florida has thus initiated a procedure whose continuity does not depend on the presidential powers of pardon. However, its outcome will still be conditioned by the possibility of arresting Castro, the strength of the evidence, and the decisions of the courts.
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