Colonizing by Contract

Since 1898, Puerto Rico has been a territory of the United States, meaning that Congress wields plenary power over the Island. Although scholars have highlighted the history and some modern manifestations of this power, conversations about how plenary power affects the territories have largely ignored constitutional criminal procedure. This Article is the first to center the territory’s criminal legal system within the broader debate over the exercise of plenary power. In doing so, it fills significant gaps in the constitutional and criminal law literature on the territories by uncovering how the federal government’s plenary power affects local criminal adjudication. This Article maps out the general contours of what it terms the “territorial criminal legal system.” That system allows Congress to intervene in local criminal affairs to a far greater degree than it could in any state. At the same time, the system imposes administrative constraints on local prosecutorial actions and poses an existential threat to the existence of local criminal systems. Further, in 2010, federal and local prosecutors in Puerto Rico signed a Memorandum of Understanding that funneled more cases into federal court, subjecting a growing number of Puerto Ricans to federal laws and procedures they had no say in creating. Sharing insights from over a dozen interviews, this Article uncovers how federal prosecutors circumvent protections embedded in Puerto Rican local law and constitutional text. Indeed, while the U.S. government may have granted Puerto Rico a greater semblance of home rule, colonial dominance has never left the Island.