Puerto Rico is more than a territory; it is a mirror that reflects American values of sovereignty, race, and exclusion. Professor Emmanuel Arnaud explores these values in a powerful project that considers how criminal justice in Puerto Rico tells a distinct story about colonialism, federalism, and prosecutorial power that resonates far beyond the shores of the Caribbean. In Colonizing by Contract, Arnaud describes the nuances of Puerto Rico’s perpetual purgatory between territorial status and statehood, and how federal and local law interact to create a unique exceptionalism in criminal jurisdiction on the island. In Arnaud’s words, these realities ultimately tell “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.” (P. 2252.)
History serves as a foundation to Arnaud’s analysis, starting with the United States’ imperial acquisition of Puerto Rico in 1898 after the Spanish-American War. As a territory, the island was subject to federal oversight similar to other territorial lands that the country had acquired throughout its history. Congress enjoyed plenary power over these territorial lands until they were deemed eligible for Congress to confer the sovereignty, political representation, and rights of statehood. But unlike the Northwest Territory, the Dakota Territory, Hawaii, and Alaska, Puerto Rico was never put on the pathway to statehood. One of the foremost reasons for this exclusion was racial. Congress had consistently required that these territories meet a certain threshold of White residents before they were considered eligible for statehood. Undoubtedly, this practical threshold was rooted in White supremacist logic, which reasoned that White residents were necessary to serve as voters and leaders before Congress could entrust that territory with the privilege of joining the Union as a sovereign state. In the Insular Cases (a series of cases decided by the Court during the turn of the twentieth century), the Supreme Court established that places like Puerto Rico could be held as territories in perpetuity. This meant that the island, and its mostly non-white Latine population, could be subject to the plenary power of Congress indefinitely. Thus, the sovereignty and political representation that statehood would bring was legally out of reach. For legal historians, this should come as no surprise. During the same time the Court was separating people and determining their political rights on the basis of race—including Chae Chan Ping that upheld Chinese exclusion (1893), and Plessy v. Ferguson that justified the separate but equal doctrine (1896)—the Insular Cases (1901-1922) continued this racialized trend of exclusion and second-class citizenship.
This history leads us to the titular theme of Arnaud’s thesis: this odd form of territorial exceptionalism has manifested into neocolonialism by way of contract. Over the years, Congress has used its plenary power to allow Puerto Rico some semblance of statehood. For example, it has its own constitution, its own civil and criminal code, its own law enforcement apparatus, and its own court system. However, federal power reasserted itself in 2010, when Puerto Rico entered into a Memorandum of Understanding (MOU) with the federal government. This MOU governed many aspects of criminal jurisdiction on the island by establishing nearly exclusive federal jurisdiction to prosecute a number of firearm crimes, drug trafficking, carjacking, bank robberies, and sex abuse cases. And while Puerto Rico voluntarily entered this agreement, we also have to consider whether both parties to this contract really had equal bargaining power.
On the one hand, the MOU is an example of criminal federalization that is familiar to many on the mainland. When the island was going through a rise in crime in the 1990s and 2000s, the federal government stepped in with the purported solution of the MOU as a way of helping Puerto Rico regain control over public safety. Arnaud deftly cites scholars from the 1990s who saw similar patterns of federalization of crime across the nation, when cooperative federalism reigned supreme to counteract the rise in crime of the 1980s and 1990s. But on the other hand, the MOU also serves as a powerful reminder that Puerto Rico’s police power does not come from its own sovereignty, but from the federal government’s plenary supervision that is rooted in an imperialist rationale.
Increased federal prosecution of local crimes has brought a host of practical issues that threaten Puerto Rican’s rights in ways that go beyond theoretical themes. Puerto Rico’s constitution prohibits wiretapping, pretrial incarceration for more than six months, and the death penalty. However, these constitutional protections have been stripped for many defendants subject to expanding federal criminal prosecutions on the island. Arnaud also recognizes that bringing these cases into federal court impacts defendants’ right to be judged by a jury of their peers. Federal courts in Puerto Rico require English proficiency to serve as a juror, which is something that 85% of the residents do not have as Spanish speakers. Further, there is a racial and class divide in this English requirement because mostly White, wealthy Puerto Ricans enjoy bilingual educational opportunities. Arnaud also raises the significant political problem whereby the island’s residents do not get to elect federal representatives. While Puerto Ricans are U.S. citizens by birth, they are denied the right to vote for the President of the United States and have limited representation in Congress (with a non-voting delegate). Just as our American founders revolted against an overbearing imperial government that taxed them without representation, America has become the new imperial power that is willing to impose even more problematic policies on Puerto Rico without representation in Congress. Arnaud also shows that these practical problems are more than mere speculation using data from on-the-ground interviews he conducted with Puerto Rican practitioners. There are real impacts whereby a modern version of federal plenary power is being reasserted in an area of law that cuts to the heart of Puerto Ricans’ liberty.
Arnaud’s thesis is compelling and aligns with my own research on criminal justice and the costs of cooperative federalism. Federalism, at its roots, is meant to be a diffusion of power between federal and state governments to prevent either sovereign from threatening individual liberty. Therefore, if the federal and state governments cooperate in ways to maximize punishment and minimize the rights of criminal defendants, then cooperative federalism turns into cooperative tyranny. Puerto Rico’s never-ending subjection to federal plenary power—as recently illustrated in the MOU—is cooperative federalism on steroids. In this case, there is no separation between federal and state actors; instead, the power of Puerto Rico’s prosecutors and police are mere extensions of federal power. Arnaud refers to this as a form of territorial federalism, which is even more problematic because people in the territories do not have the same political tools to protect its citizens from an overbearing federal government. Apart from its interesting overlaps with cooperative federalism, Arnaud’s work also evokes similar constitutional considerations that others have explored regarding Native American sovereignty. These territories also tell a unique story of federal and tribal sovereignty that does not illustrate a federalism relationship, but rather of a structural subordination of these lands and the second-class citizenship of their inhabitants.
As we celebrate the 250-years of this country’s political experiment, we must also realize that it coincides with the 125-year anniversary of the Insular cases. Consequently, Arnaud’s contribution studying the criminal jurisdiction of the U.S. territories should not be regarded as a niche subject; rather, it is the type of scholarship that highlights latent truths about our country’s continued commitment to practicing imperialism, upholding second-class citizenship, and using criminal law to assert political sovereignty. As it turns out, the age of imperialism is long from over, and it will not end until America loosens its hold over its territories to allow them to determine their own destinies.
