COLONIZING BY CONTRACT

Introduction

Puerto Rico, we are told, has a relationship with the United States that “has no parallel in our history.” 1 1 Examining Bd. of Eng’rs, Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 596 (1976). ... Close For the last seventy years, the U.S. and Puerto Rican governments have maintained that while the Island 2 2 Puerto Rico is an archipelago consisting of various islands. Off. of the Gov’t of P.R., Puerto Rico 5 (1951). It is commonly referred to as la isla, or the Island. This Article will do so throughout. ... Close is a territory of the United States, as a matter of governance, it is akin to a state. 3 3 In 1953, representatives of the U.S. government conveyed to the United Nations that Puerto Rico had achieved a new constitutional relationship with the United States when the territory reached commonwealth status. Frances P. Bolton & James P. Richards, Report on the Eighth Session of the General Assembly of the United Nations, H.R. Rep. No. 83-1695, app. 9, at 241 (2d Sess. 1954). This status, according to federal agents, was “a compact of a bilateral nature whose terms may be changed only by common consent.” Id. This, and other statements, prompted the General Assembly of the United Nations to express that Puerto Rico had achieved “a new constitutional status.” G.A. Res. 748 (VIII), ¶ 2 (Nov. 27, 1953). In Puerto Rico, the meaning of the commonwealth status is a hotly contested issue on which the major political parties are divided, with the Partido Popular Democrático, the commonwealth party, believing that the Island is no mere territory. See Emmanuel Hiram Arnaud, Llegaron los Federales: The Federal Government’s Prosecution of Local Criminal Activity in Puerto Rico, 53 Colum. Hum. Rts. L. Rev. 882, 913–15 (2022) [hereinafter Arnaud, Llegaron los Federales] (“[T]he compact theory had become, and continues to be, the backbone of the Partido Popular Democrático, one of the two main political parties on the Island . . . .”); Christina D. Ponsa-Kraus, Political Wine in a Judicial Bottle: Justice Sotomayor’s Surprising Concurrence in Aurelius, 130 Yale L.J. Forum 101, 106 (2020), https://www.yalelawjournal.org/pdf/Ponsa-KrausEssay_z7qnqvjm.pdf [https://perma.cc/9QZA-TGN4] [hereinafter Ponsa-Kraus, Aurelius Concurrence] (“[C]ommonwealthers argue that Puerto Rico is no mere territory, but rather has a mutually binding bilateral compact with the United States, which elevates its status to something analogous to, but different from, that of a state.”). ... Close For most purposes, it is “an autonomous political entity, ‘sovereign over matters not ruled by the Constitution.’” 4 4 Rodriguez v. Popular Democratic Party, 457 U.S. 1, 8 (1982) (internal quotation marks omitted) (quoting Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 673 (1974)). ... Close It enjoys almost complete home rule, a popularly elected executive and legislative branches, and a complex and expansive governmental apparatus. 5 5 See Off. of the Gov’t of P.R., supra note 2, at 20 (describing the evolution of Puerto Rico’s government structure and degree of independence). ... Close

But that is not exactly true. The federal courts have typically marshaled this narrative to shield explicitly colonial histories and outcomes. Indeed, the list of undesirable achievements related to the Island abound. Chief among them is that Puerto Rico remains one of five “unincorporated” territories, 6 6 The Supreme Court of the United States created the “unincorporated territory category” in the Insular Cases of the early twentieth century. The concept first appeared in a law review article, and then in a judicial opinion in Downes v. Bidwell and was explicitly adopted as a constitutional doctrine in Balzac v. Porto Rico. See Abbott Lawrence Lowell, The Status of Our New Possessions: A Third View, 13 Harv. L. Rev. 155 (1899); see also Downes v. Bidwell, 182 U.S. 244, 287 (1901); Balzac v. Porto Rico, 258 U.S. 298, 305–06 (1922). Using explicitly racist narratives as guidance, the Court explained that unincorporated territories are those that are not on the path towards statehood and in which at least some parts of the Constitution (like the jury trial right or the Uniformity Clause) do not apply. See Downes, 182 U.S. at 287 (“If those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation and modes of thought, the administration of government and justice, according to Anglo-Saxon principles, may for a time be impossible . . . .”); see also Balzac, 258 U.S. at 309 (“In Porto Rico, however, the Porto Rican can not insist upon the right of trial by jury, except as his own representatives in his legislature shall confer it on him.”). Incorporated territories are on the path to statehood. See Downes, 182 U.S. at 252 (“This evidently committed the government to the ultimate, but not to the immediate, admission of Louisiana as a State, and postponed its incorporation into the Union to the pleasure of Congress.”). Today, there are four other unincorporated territories: American Samoa, Guam, the Northern Mariana Islands, and the U.S. Virgin Islands. R. Sam Garrett, Cong. Rsch. Serv., IF11792, Statehood Process and Political Status of U.S. Territories: Brief Policy Background 1 (2024), https://crsreports.congress.gov/product/pdf/IF/IF11792 [https://perma.cc/G6QF-VTMV]. ... Close meaning that Congress can, and does, treat it differently than the states, and its territorial status may continue in perpetuity without offending the federal Constitution. 7 7 Most recently, the Supreme Court explained that Congress can extend fewer benefit programs to the territories than the states. See United States v. Vaello Madero, 142 S. Ct. 1539, 1541 (2022) (holding that Congress may make fewer Supplemental Security Income benefits available to residents of Puerto Rico than residents of states without violating the Fifth Amendment’s equal protection clause). ... Close Further, inhabitants of the territories remain politically powerless. They cannot vote for President or Vice President, nor can they elect a voting representative to Congress. 8 8 Emmanuel Hiram Arnaud, A More Perfect Union for Whom?, 123 Colum. L. Rev. Forum 84, 87 (2023), https://columbialawreview.org/wp-content/uploads/2023/04/Arnaud-A_more_perfect_union_for_whom.pdf [https://perma.cc/WXV4-2Y9F] [hereinafter Arnaud, A More Perfect Union] (reviewing John F. Kowal & Wilfred U. Codrington III, The People’s Constitution: 200 Years, 27 Amendments, and the Promise of a More Perfect Union (2021)). Congress extended citizenship to inhabitants of Puerto Rico in 1917. See Jones Act, Pub. L. No. 64-368, ch. 145, 39 Stat. 951, 953 (1917). ... Close Importantly, in the 1950s, Congress invited Puerto Rico to draft a constitution of its own making—the first time a territory was asked to do so without a connection to statehood. 9 9 See Mitu Gulati & Robert K. Rasmussen, Puerto Rico and the Netherworld of Sovereign Debt Restructuring, 91 S. Cal. L. Rev. 133, 150 (2017) (describing how Congress “retained a veto over any constitution” Puerto Rico proposed and required that the Puerto Rican Constitution contain a bill of rights). ... Close The creation of that constitution ostensibly heralded a new epoch in Puerto Rican history: the commonwealth. But soon after its creation, the practical consequences of the commonwealth status came into view. It did not, as major Puerto Rican political leaders, scholars, and federal judges professed, elevate Puerto Rico out of its territorial status. 10 10 See Arnaud, Llegaron los Federales, supra note 3, at 913–20 (recounting prominent arguments suggesting that the commonwealth status changed the relationship between Puerto Rico and the United States); Salvador E. Casellas, Commonwealth Status and the Federal Courts, 80 Revista Jurídica de la Universidad de Puerto Rico [Rev. Juris. U. P.R.] 945, 949 (2011) (arguing that the commonwealth status “set forth the basis for a new relationship between the people of Puerto Rico and the United States”); Pedro A. Malavet, Puerto Rico: Cultural Nation, American Colony, 6 Mich. J. Race & L. 1, 33–34, 36–37 (2000) (highlighting official statements made by federal officials suggesting that the commonwealth status changed the constitutional relationship between the United States and Puerto Rico). ... Close All the new moniker did was give a stronger semblance of home rule with a fancy name to go along with it. 11 11 Juan R. Torruella, Commentary, Why Puerto Rico Does Not Need Further Experimentation With Its Future: A Reply to the Notion of “Territorial Federalism”, 131 Harv. L. Rev. Forum 65, 85 (2018), https://harvardlawreview.org/wp-content/uploads/2018/01/vol131_Torruella.pdf [https://perma.cc/E63W-VB67] [hereinafter Torruella, A Reply] (referring to the commonwealth status as a “monumental hoax”). ... Close The federal government retained power to rule over the territory, including interfering in local affairs in ways it could never interfere with a state.

Puerto Rico’s relationship with the federal government affects every facet of the Island’s existence. But one of the most understudied aspects of Puerto Rico’s relationship with the United States is the way its territorial status affects the adjudication of criminal offenses on the Island. To put it plainly, the federal government has significantly influenced the way criminal prosecutions are brought on the Island, from preventing local prosecutors from filing certain charges in local courts to authorizing federal prosecutors to prosecute what are essentially local offenses. One of the most recent manifestations of the federal government’s ability and desire to intrude into local affairs came in 2010 when the U.S. Attorney’s Office for the District of Puerto Rico (USAO) and the Puerto Rican Department of Justice (PRDOJ)—the entity tasked with local Island-wide criminal prosecutions—signed a confidential Memorandum of Understanding (MOU). 12 12 See Memorandum of Understanding Between the Department of Justice for the Commonwealth of Puerto Rico, The Puerto Rico Police Department, and the U.S. Attorney’s Office for the District of Puerto Rico for the Referral and Handling of Cases Where There Is Concurrent State and Federal Jurisdiction, Feb. 2, 2010 (on file with the Columbia Law Review) [hereinafter 2010 MOU]. Although the MOU is confidential, federal and local public officials in Puerto Rico have talked about the document openly in various forums including media interviews, press releases, and press conferences. See Limarys Suárez Torres, Arma le Cuesta Siete Años de Cárcel, El Nuevo Dia (Oct. 18, 2011) [hereinafter Suárez Torres, Arma le Cuesta] (describing public statements by Judge José Fusté discussing the MOU); Luis J. Valentín Ortiz, Amplían Acuerdo Entre Gobierno y Agencias Federales para Combatir el Crimen, CB En Español (Feb. 1, 2017), https://cb.pr/amplian-acuerdoentre-gobierno-y-agencias-federales-para-combatir-el-crimen/ [https://perma.cc/F2CCVM83]. ... Close This agreement gave federal prosecutors primary jurisdiction over certain categories of offenses. 13 13 See 2010 MOU, supra note 12, at 1–7 (delegating some drug trafficking, carjacking, bank robberies, and child sexual abuse cases to federal prosecutors). ... Close The local prosecutors, in effect, preemptively forfeited their ability to prosecute certain sets of cases, believing that the federal government would be able to do a better job. Their conception of collaboration allows the federal government, in some cases, to effectively replace local prosecutors.

This Article argues that prosecutorial arrangements like this one, fueled by a territorial relationship, are a modern manifestation of colonialism on the Island. These arrangements constrain local governmental capacity in ways that endanger criminal defendants and betray fundamental norms of democratic accountability and the ostensible promise of decolonization. This Article surveys this phenomenon through the lens of the MOU. This MOU, which has been altered in subsequent years, explained which offenses the USAO would prosecute federally, even though a local analogous statute applied and the PRDOJ remained ready to prosecute on its own. The offenses placed solely in the USAO’s hands reflected violent crimes that had been increasing on the Island, like firearms offenses and carjackings. 14 14 See id. at 1 (stating that delegating the prosecution of certain violent offenses to federal prosecutors is necessary to effectively fight crime on the Island). ... Close The following pages uncover the history of the MOU and explore how such a simple agreement subverted procedural protections under Puerto Rican law and subjected a greater number of people accused of crimes in Puerto Rico to punishment by a government they had no say in electing, exposing a significant issue of representational criminal justice. By doing so, this Article aims to fill a gap in scholarship on the territories, which has given insufficient attention to criminal legal administration.

What prompted the federal government to intervene so aggressively in Puerto Rican affairs? The answer lies principally in the plenary power doctrine. As explained more fully below, plenary power refers to Congress’s constitutional prerogative to rule over U.S. territories, allowing it to operate as both the federal and local legislature. 15 15 See infra section I.C. ... Close This, in turn, makes federal interventions customary and, as some scholars have proposed, creates a power dynamic in which only federal power in the territories is deemed legitimate and respectable. 16 16 See Eduardo J. Rivera Pichardo, John T. Jost & Verónica Benet-Martínez, Internalization of Inferiority and Colonial System Justification: The Case of Puerto Rico, 78 J. Soc. Issues 79, 82 (2022) (“[W]e hypothesize that pro-statehood sentiments . . . would reflect colonial forms of thinking (or colonial mentality) associated with system justification . . . and internalization of inferiority . . . .” (emphasis omitted)). ... Close The weight of the scholarship concerning the U.S. territories and Puerto Rico typically focuses on the historical trajectory of plenary power. For instance, scholars have long explored the origins of Congress’s plenary power, linking it to the nation’s practice of producing new states mainly from contiguous territories through war, peacetime treaties, and settler colonialism. 17 17 See Christina Duffy Burnett, Untied States: American Expansion and Territorial Deannexation, 72 U. Chi. L. Rev. 797, 816–17 (2005) (describing Congress’s use of plenary power to legislate for new territories since the Founding); Juan F. Perea, Denying the Violence: The Missing Constitutional Law of Conquest, 24 U. Pa. J. Const. L. 1205, 1241–55 (2022) (describing the consequences of the Northwest Ordinance on patterns of territorial expansion); Bartholomew H. Sparrow, Empires External and Internal: Territories, Government Lands, and Federalism in the United States, in The Louisiana and American Expansion, 1803–1898, at 231, 233–34 (Sanford Levinson & Bartholomew H. Sparrow eds., 2005) (outlining the federal government’s established pattern of territorial expansion). See generally Sam Erman, Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire (2018) (describing the role of the political branches in the acquisition and establishment of a territorial government in Puerto Rico); Aziz Rana, The Two Faces of American Freedom (2010) [hereinafter Rana, The Two Faces] (describing the federal Constitution’s role in facilitating and justifying expansion and settler colonialism). ... Close Plenary power is not new, and Congress has used that power to create and govern territories since the Founding. 18 18 See U.S. Const. art. IV, § 3, cl. 2 (“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States . . . .”); see also Northwest Ordinance of 1787, 1 Stat. 51 (creating internal governance for the Northwest Territories). ... Close After the Spanish–American War in 1898, however, the understanding of territorial governance changed. The United States suddenly held far-off territories like Puerto Rico, and nobody quite knew what to do with them. 19 19 The parameters for expansion were narrowed even further following the creation of what Professor Sam Erman refers to as the “Reconstruction Constitution,” which stood in the way of acquiring foreign lands by entrenching the tradition that territorial acquisitions, even noncontiguous ones, were on the fast track to statehood. The Reconstruction Constitution represents the new post-reconstruction constitutional regime that, through the Reconstruction Amendments, guaranteed “near-universal citizenship, expanded rights, and eventual statehood. Specifically, all Americans other than Indians, regardless of race, were citizens.” Erman, supra note 17, at 2. The promises of the Reconstruction Constitution, Erman explains, caused even the staunchest imperialists in the United States to think twice before supporting extraterritorial annexations. See id. (explaining how the “prospect of having to acknowledge so many nonwhite persons as citizens” effectively stopped U.S. expansion until 1898). ... Close The Supreme Court ultimately answered that question in the Insular Cases  20 20 Juan R. Torruella, The Insular Cases: The Establishment of a Regime of Political Apartheid, 29 U. Pa. J. Int’l L. 283, 299–312 (2007). The acquisition of these territories also marked the nation’s “imperial turn,” which refers to the moment, in 1898, when the United States began holding noncontiguous territories for indefinite amounts of time without the promise of statehood. Id. at 287. ... Close of the early twentieth century, providing the federal government with the power to hold the new possessions for an indeterminate period without granting them statehood, while preserving deannexation as a possible outcome. 21 21 See Burnett, supra note 17, at 802 (“[T]he Insular Cases rejected the assumption that all U.S. territories were on their way to statehood, [but] the unprecedented implication of this reasoning was . . . that the United States could relinquish sovereignty over an unincorporated territory altogether.”). Deannexation refers to processes by which the federal government could cut ties with a territory, such as by granting independence. Id. ... Close The Insular Cases left the federal government’s plenary power over the territories intact but decimated the expectation of statehood and left the new possessions in a territorial limbo. 22 22 See id. at 799 (explaining how the Insular Cases denied the territories “all but a few constitutional protections” while “denying them a promise of statehood”). To boot, not all constitutional rights and provisions applied to the newly minted “unincorporated” territories. Most notably, the jury trial right and the Uniformity Clause did not extend to these territories. Id. at 819; see also Balzac v. Porto Rico, 258 U.S. 298, 309 (1922) (holding that the Sixth Amendment jury trial right did not apply to Puerto Rico). Despite treating the territories with some trepidation, the federal government was in control of their internal governance. ... Close That, in large part, remains true today. Despite expansion of home rule in most territories, 23 23 See Rafael Cox Alomar, The Puerto Rico Constitution 35–37 (2022) (“On July 3, 1950, President Truman signed U.S. Public Law 600, providing ‘for the organization of a constitutional government by the people of Puerto Rico.’” (quoting Act of July 3, 1950, Pub. L. No. 81-600, 64 Stat. 319 (codified at 48 U.S.C. §§ 731 et seq. (2018)))); Juan R. Torruella, The Supreme Court and Puerto Rico: The Doctrine of Separate and Unequal 117–25 (1985) (discussing modest expansion of home rule and relevant Puerto Rican political movements in the early twentieth century); José Trías Monge, Puerto Rico: The Trials of the Oldest Colony in the World 107–18 (1997) [hereinafter Trías Monge, Oldest Colony in the World] (discussing the establishment of the commonwealth status). ... Close it has become patently clear that the federal government continues ruling the territories like the colonies of old. It exercises its plenary power to legislate freely over the territories, intruding into local affairs and producing constitutionally sanctioned inequality and disparate treatment. 24 24 See United States v. Vaello Madero, 142 S. Ct. 1539, 1541 (2022) (holding that Congress may make fewer Supplemental Security Income benefits available to residents of Puerto Rico than residents of states without violating the Fifth Amendment’s equal protection clause); Puerto Rico v. Franklin Cal. Tax-Free Tr., 579 U.S. 115, 118 (2016) (“Puerto Rico [is barred] from enacting its own municipal bankruptcy scheme to restructure the debt of its insolvent public utilities companies.”); Fitisemanu v. United States, 1 F.4th 862, 864–65 (10th Cir. 2021) (holding that citizens of American Samoa were not birthright citizens of the United States by virtue of the Fourteenth Amendment’s Citizenship Clause); Cori Alonso-Yoder, Imperialist Immigration Reform, 91 Fordham L. Rev. 1623, 1634 (2023) (“The government is permitted by law to regulate racial minorities, but not to extend full legal protections to these same groups.”). ... Close Although the MOU did not emanate directly from Congress’s plenary power, they interact to exacerbate the problem of federal intervention.

Further, the federal government’s intervention in Puerto Rican criminal affairs prompts important criticisms about the federalization of criminal law throughout the United States. Scholars and advocates have long critiqued the federal government’s intervention in areas of criminal law that were traditionally seen as being within the exclusive province of the states. 25 25 See Gerald G. Ashdown, Federalism, Federalization, and the Politics of Crime, 98 W. Va. L. Rev. 789, 790–91 (1996) (“[T]he Tenth Amendment le[ft] the general police power and responsibility for criminal law enforcement in the hands of the states.”); Stephen F. Smith, Federalization’s Folly, 56 San Diego L. Rev. 31, 34–42 (2019) (“The daunting size and utter chaos in federal criminal law resulted principally from the fact that new criminal laws are continuously enacted by Congress year after year without periodic review and revision.”). See generally Dick Thornburgh, Charles W. Daniels & Robert Gorence, The Growing Federalization of Criminal Law, 31 N.M. L. Rev. 135, 135–36 (2001) (recounting the history of the gradual federalization of criminal law). ... Close Critics view the criminalization of especially violent crimes by the federal government as an overstep largely because criminalizing those offenses exceeds Congress’s enumerated powers and, as a result, violates commonly accepted understandings of federalism. 26 26 See Kathleen F. Brickey, Criminal Mischief: The Federalization of American Criminal Law, 46 Hastings L.J. 1135, 1165–67 (1995) (arguing that Congress has overstepped by passing laws in tension with state prerogatives and central tenets of federalism). ... Close In the opposing camp, many scholars point out not only that the Constitution provides broad enumerated powers but also that the Founders had an expansive understanding of Congress’s power to draft federal criminal statutes. 27 27 See Erin C. Blondel, The Structure of Criminal Federalism, 98 Notre Dame L. Rev. 1037, 1040 (2023) (“The Constitution, federal law, and federal norms give states almost unfettered control over their laws and officers, and having the police power provides strong incentives to maximize the reach of state law and enforcement.”); Peter J. Henning, Misguided Federalism, 68 Mo. L. Rev. 389, 394–95 (2003) (“The Founders certainly envisioned that federal crimes could encompass conduct also subject to state prosecution.”); Adam H. Kurland, First Principles of American Federalism and the Nature of Federal Criminal Jurisdiction, 45 Emory L.J. 1, 56 (1996) (“At the outset, the First Congress recognized that federal criminal law authority was not limited to the few explicit constitutional grants of authority to define punishments.”); Tom Stacy & Kim Dayton, The Underfederalization of Crime, 6 Cornell J.L. & Pub. Pol’y 247, 262–63 (1997) (“[W]e argue that the constitutional objections to the current national crime fighting role are quite misplaced.”). ... Close Indeed, Congress demonstrated a capacious understanding of its enumerated powers when it passed the earliest federal criminal statutes. 28 28 Congress, for example, used the Postal Clause to create federal offenses against the stealing of mail. Kurland, supra note 27, at 58. See generally Dwight F. Henderson, Congress, Courts, and Criminals 7–10 (1985) (discussing the Crimes Act of 1790 and the initial structure of the federal criminal justice system). ... Close

Although federalism issues are broad, it is important to highlight that the territories represent, in many ways, the complete federalization of criminal law. Like the states, federal criminal statutes apply to the territories. 29 29 See Antilles Cement Corp. v. Fortuño, 670 F.3d 310, 320 (1st Cir. 2012) (“Whether and how a federal statute applies to Puerto Rico is a question of Congressional intent.” (citing Jusino Mercado v. Puerto Rico, 214 F.3d 34, 40 (1st Cir. 2000))); United States v. Acosta-Martinez, 252 F.3d 13, 18 (1st Cir. 2001) (noting that unless otherwise stated, the “default rule” is that a federal statute applies to a territory because the territories are typically included in the jurisdictional section of federal criminal statutes). But the applicability of some federal criminal statutes to Puerto Rico is continually contested in federal courts. See, e.g., id. at 13 (concerning the Federal Death Penalty Act (FDPA)).
In contrast, some federal statutes explicitly do not apply to the territories. For example, Congress preempted the territories from creating their own municipal debt restructuring legislation. See Franklin Cal. Tax-Free Tr., 579 U.S. at 117–18 (holding that Puerto Rico cannot authorize its municipalities to seek relief under Chapter 9 of the Bankruptcy Code). And Congress has exempted American Samoa and the Northern Mariana Islands from particular sections of immigration laws and the Fair Labor Standards Act. See Alonso-Yoder, supra note 24, at 1628 (“[The covenant] limited the applicability of the federal minimum wage provisions set forth in the Fair Labor Standards Act of 1938.”); Arnold H. Leibowitz, American Samoa: Decline of a Culture, 10 Cal. W. Int’l L.J. 220, 248–51, 269 (1980) (explaining that Congress has created special immigration restrictions for American Samoa). ... Close But because of Congress’s plenary power over the territories, the typical constraints on federal action are absent. The federalization of crime in the territories entails the circumvention of local constitutional protections and the undemocratic adjudication of criminal offenses. Indeed, the continued federalization of crime in Puerto Rico and recent congressional actions like PROMESA—a 2016 act that created a presidentially appointed fiscal control board that governs the Island’s budget and approves local laws 30 30 Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), Pub. L. No. 114–187, §§ 101–212, 130 Stat. 549, 553–577 (2016) (codified as 48 U.S.C. §§ 2121–2152 (2018)). ... Close —show that there is no future for what some commentators call “territorial federalism.” 31 31 See, e.g., Developments in the Law—The U.S. Territories, 130 Harv. L. Rev. 1616, 1632–33 & n.1 (2017) (arguing that the relationship between territories and the federal government has become more similar to the relationship between states and the federal government over time); see also Zachary S. Price, Dividing Sovereignty in Tribal and Territorial Criminal Jurisdiction, 113 Colum. L. Rev. 657, 665, 698 (2013) (suggesting a functional approach to federalism for territories and tribes by shifting the focus to the “practical reality of divided sovereignty,” requiring a nuanced approach to the interterritorial division of governmental functions and accommodating local cultural norms). But see Torruella, A Reply, supra note 11, at 66–70 (arguing that “territorial federalism” is a repackaging of the same unequal colonial relationship that has been in place for over a century). ... Close The MOU provides a view of the effects of the federal government’s power over the territories at a granular level, opening new chapters in debates concerning both the law of the territories and the federalization of crime. To this point, the scholarship on the federalization of criminal law has also overlooked the territories.

To be sure, the MOU was a calculated product of its time. Its creation stems from a major crime wave in Puerto Rico dating to the 1990s and early 2000s. Violent crime reached unprecedented levels, with the Island seeing the murder rate spike 229% from 1970 to 2009, hovering at three times the national average. 32 32 Dora Nevares-Muñiz, El Crimen 13–14 (2011) [hereinafter Nevares-Muñiz, El Crimen]. ... Close To combat these staggering numbers, the USAO and PRDOJ decided that federal prosecutors should lead the charge prosecuting violent crime. As a result of the MOU, criminal charges in the District Court of Puerto Rico increased dramatically. 33 33 In 2008, the federal government secured a total of 754 convictions. That number increased to 1,478 convictions by 2015. See U.S. Sent’g Comm’n, Statistical Information Packet: Fiscal Year 2008: District of Puerto Rico (2008), https://www.ussc.gov/sites/
default/files/pdf/research-and-publications/federal-sentencing-statistics/state-district-circuit/2008/pr08.pdf [https://perma.cc/F2R9-LPPJ]; U.S. Sent’g Comm’n, Statistical Information Packet: Fiscal Year 2015: District of Puerto Rico (2015), https://www.ussc.gov/
sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/state-district-circuit/2015/pr15.pdf [https://perma.cc/8YV6-3E7L]; see also Interview with D (n.d.) (on file with the Columbia Law Review) (explaining that AUSAs were charging around two thousand defendants a year after the MOU but have begun charging fewer cases under current U.S. Attorney Stephen Muldrow). ... Close But not everyone was happy with this new arrangement. Federal judges in Puerto Rico faced a surge of new cases driven by the U.S. Attorney’s policies, and some of the judges expressed their frustrations. The former Chief Judge of the District of Puerto Rico, for example, chided federal prosecutors on several occasions, explaining that “the wholesale referral of cases for federal prosecution ‘takes a heavy toll on the federal court, which is not designed or equipped to become a de facto state court.’” 34 34 United States v. Colon de Jesus, No. 10-251 (JAF), 2012 WL 2710877, at *4 (D.P.R. July 6, 2012) (quoting United States v. Sevilla-Ovola, 854 F. Supp. 2d 164, 170 (D.P.R. 2012), vacated, 770 F.3d 1 (1st Cir. 2014)). ... Close

By referring cases to federal court, the new arrangement raised fundamental questions about the criminal legal system on the Island, beginning with its legitimacy. Because Puerto Ricans lack representation in the federal system, the federal government prosecutes Puerto Ricans under statutes that they have never had a say in creating. The MOU exacerbates this democratic issue, creating downstream complications. In particular, one result of funneling enumerated offenses into the federal district courts is the circumvention of local constitutional protections. The Puerto Rican Constitution and Penal Code provide robust protections for people facing criminal charges, including the right to bail, prohibitions on wiretaps, required pretrial hearings, and strict adherence to speedy trial rules. 35 35 See P.R. Const. art. II, §§ 10–11; see also P.R.S. St. T. 34 Ap. II, Rule 109 (“A motion for continuance not complying with the foregoing provisions shall be denied flatly.”). These provisions were adopted by the Puerto Rican constitutional convention and approved by the U.S. Congress without opposition. The wiretap prohibition found its inspiration in the vocal progressive and socialist wing of the constitutional convention which believed communication through cable, telegraph, and telephone to be “inviolable.” José Trías Monge, 3 Historia Constitucional de Puerto Rico 191–92 (1982) [hereinafter Trías Monge, Historia Constitucional] (translation provided by author). The right to bail for all defendants emerged as a natural consequence of the constitutional prohibition against the death penalty. Under the Jones Act of 1917, there was a right to bail except for capital crimes in certain circumstances. As a result of the prohibition of the right to bail for capital cases, the right to bail was expanded to all defendants with minimal opposition by the conservative delegates of the convention. Id. at 196. ... Close The strong protections offered by Puerto Rican criminal procedure should be respected as expressions of the community, particularly because this community’s expression is excluded from the federal system. But supporters of the MOU have instead weaponized these very protections as justifications for relying on a federal process that is more beneficial to prosecutors. 36 36 See Interview with D, supra note 33 (explaining that local procedural protections were one factor motivating the MOU); Interview with E (June 6, 2023) (on file with the Columbia Law Review) (same). ... Close

Moreover, because federal trials are conducted in English, federal jurors must speak English proficiently in order to participate. 37 37 28 U.S.C. § 1865(b)(2)–(3) (2018) (stating that a person is qualified for jury service unless they are “unable to speak the English language”). ... Close Puerto Ricans mainly speak Spanish, and as a result, by some estimates, close to ninety percent of the Puerto Rican population is ineligible to serve on federal juries. 38 38 Jasmine B. Gonzales Rose, The Exclusion of Non-English-Speaking Jurors: Remedying a Century of Denial of the Sixth Amendment Right in the Federal Courts of Puerto Rico, 46 Harv. C.R.-C.L. L. Rev. 497, 498 (2011) [hereinafter Gonzales Rose, Exclusion of Non-English Speaking Jurors]. ... Close To add insult to injury, federal prosecutors have been historically aggressive in seeking the death penalty despite the Puerto Rican Constitution prohibiting that sanction. 39 39 See Emmanuel Hiram Arnaud, A License to Kill: State Sponsored Death in the Oldest Colony in the World, 86 Rev. Juris. U. P.R. 295, 311, 315–19 (2017); Interview with J (July 20, 2023) (on file with the Columbia Law Review) (describing how the United States has repeatedly ignored Puerto Rico’s prohibition on the death penalty). ... Close

The following pages provide a deeper look into how the MOU exacerbates the deleterious consequences of Puerto Rico’s territorial condition. To assist in this endeavor, this Article begins developing a descriptive framework—which this Article refers to as the “territorial criminal legal system”—to account for the unique problems created when the federal government employs its power to adjudicate criminal offenses in the territories. This framework captures the broad parameters of criminal adjudication in the territories, regardless of the existence of an MOU. Within the ambit of the territorial criminal legal system are two interrelated processes that facilitate increased federal participation. The defining feature of the territorial criminal legal system is Congress’s use of plenary power. This power allows Congress to treat the territories differently than the states, act as both the federal and local (or territorial) legislature, 40 40 The Supreme Court has explained on many occasions that in “legislating for [the territories], Congress exercises the combined powers of the general, and of a state government.” Am. Ins. Co. v. 356 Bales of Cotton, 26 U.S. (1 Pet.) 511, 546 (1828). The Court would speak in even clearer terms a few decades later, stating that
All territory within the jurisdiction of the United States not included in any State must necessarily be governed by or under the authority of Congress. The Territories are but political subdivisions of the outlying dominion of the United States. . . . The organic law of a Territory takes the place of a constitution as the fundamental law of the local government. It is obligatory on and binds the territorial authorities; but Congress is supreme, and for the purposes of this department of its governmental authority has all the powers of the people of the United States . . . .
Nat’l Bank v. County of Yankton, 101 U.S. 129, 133 (1879). ... Close unilaterally apply new laws to the territories, 41 41 See Dora Nevares Muñiz, Evolution of Penal Codification in Puerto Rico: A Century of Chaos, 51 Rev. Juris. U. P.R. 87, 104–09 (1982) [hereinafter Nevares Muñiz, Evolution of Penal Codification] (describing the process by which Congress replaced the local Puerto Rican Penal Code with the California Penal Code in 1902). ... Close establish local governmental systems, 42 42 From the Founding, Congress has used its plenary power to create rules of internal governance, known as organic acts, for territories acquired by the United States. Emmanuel Hiram Arnaud, Dual Sovereignty in the U.S. Territories, 91 Fordham L. Rev. 1645, 1659–63 (2023) [hereinafter Arnaud, Dual Sovereignty] (explaining that Congress used its plenary power to establish local governments in newly acquired territories beginning with the Northwest Ordinance in 1787). ... Close expand the jurisdiction of district courts to include offenses under local penal codes, 43 43 In the U.S. Virgin Islands, federal prosecutors have the statutory power to file charges under the local penal code in the federal district court. See id. at 1661; see also United States v. Gillette, 738 F.3d 63, 70–71 (3d Cir. 2013) (explaining that under the U.S.V.I. Organic Act, local courts have original jurisdiction in all criminal acts but “Congress specifically provided that the District Court would retain concurrent jurisdiction over charges alleging local crimes that are related to federal crimes”). ... Close and create offenses that apply specifically to the actions that occur within the territories without affecting a broader federal interest. 44 44 Arnaud, Llegaron los Federales, supra note 3, at 886–91. ... Close The plenary power doctrine interacts with criminal legal doctrines in important ways. One of the most striking examples is through another feature, the dual sovereign doctrine. Under this doctrine, only the federal government or the local territorial government may prosecute someone for the same offense. 45 45 Grafton v. United States, 206 U.S. 333, 355 (1907) (“[W]e adjudge that . . . a soldier in the Army[] having been acquitted of the crime of homicide . . . by a military court of competent jurisdiction . . . could not be subsequentially tried for the same offense in a civil court exercising authority in [the territory of the Philippines].”); see also Puerto Rico v. Sanchez Valle, 579 U.S. 59, 62 (2016) (“In this case, we must decide if . . . Puerto Rico and the United States may successively prosecute a single defendant for the same criminal conduct. We hold they may not, because the oldest roots of Puerto Rico’s power to prosecute lie in federal soil.”); Arnaud, Dual Sovereignty, supra note 42, at 1652 (contrasting the several states’ independent sovereign powers with the territories’ derivative powers, which come from the federal government). ... Close This means that if law enforcement refers certain cases to one entity—say, the federal government—the other entity (the local government) is preempted from pursuing that same case. The MOU and the federal government’s superior resources funnel violent crime to the federal courtroom, sometimes leaving the local government’s interests unfulfilled. Ultimately, the territorial criminal legal system is a manifestation of the federal government’s ability to control or influence local affairs when it so chooses. 46 46 The criminal legal systems of the U.S. Virgin Islands, American Samoa, the Northern Mariana Islands, and Guam function differently than that of Puerto Rico in practice. Arnaud, Dual Sovereignty, supra note 42, at 1659–63. The author will discuss the unique dynamics of those criminal legal systems in subsequent pieces. ... Close

Part I traces the evolution of federal prosecutorial power in Puerto Rico. Specifically, it discusses the creation of the federal district court for Puerto Rico, the USAO that came with it, and the Puerto Rican Department of Justice, which was created to prosecute local crimes. Part II unearths the history of the MOU, focusing on its origins, the purpose of the agreement, its practical consequences, and the important procedural protections for criminal defendants under local law. This effort is informed by confidential interviews of attorneys, academics, and judges possessing personal knowledge of the MOU. 47 47 Many parts of this Article rely on interviews with attorneys practicing criminal law in Puerto Rico. The author interviewed former and current prosecutors, defense attorneys, judges, and academics on the Island who have personal knowledge of the Memorandum of Understanding and who have extensive practice experience in Puerto Rico. The author asked each person open-ended questions about the historical backdrop of the MOU, the purpose of the agreement, their perception of the agreement, and their experiences with criminal adjudication on the Island. These interviews were conducted on the condition of anonymity. Citations to those interviews will be marked as “Interview with [letter]” with the letter corresponding to the order in which the interview took place. All interviews are on file with the Columbia Law Review. ... Close Part III discusses how the MOU is a manifestation of the federal government’s plenary power over the territories. Through the MOU, the federal government accomplished the important goal of prosecuting violent offenders but, in doing so, circumvented important local procedural protections for defendants and subjected an increasing number of Puerto Ricans to a criminal legal system that does not represent them. 48 48 The MOU moves a significant group of offenses to federal court, where local criminal procedure rules do not apply. In the states of the Union, this is orthodox in the sense that state laws and procedures do not exist in the federal district court of those states. But here, the PRDOJ and the USAO entered into an agreement that was motivated in part by the conscious desire to free what otherwise are local prosecutions from the protections of the Puerto Rican Constitution and rules of criminal procedure. Moreover, the agreement subjects more Puerto Ricans to federal laws and procedures they have not had a say in crafting. ... Close Finally, this Article compares Puerto Rico’s type of arrangement to that of other jurisdictions and offers a way forward.

Ultimately, this is a story about how the most powerful democracy on earth continues to perpetuate a colonial system that delegitimizes local authority and deprives Puerto Ricans of democracy and self-determination. This story focuses on criminal prosecutions on the Island and highlights the extent to which the U.S. government continues intervening in local affairs. In doing so, the federal government circumvents Puerto Rican constitutional protections and subjects millions to foreign laws.