Legal Sidebar 
Supreme Court Says Dual Prosecutions by 
the Federal Government and Puerto Rico 
Violate Double Jeopardy 
11/10/2016 
 
A case recently decided by the Supreme Court considered the legal nature of the relationship between 
Puerto Rico and the United States in a unique context. In Puerto Rico v. Sanchez Valle, the Court 
examined whether defendants in a criminal case can be prosecuted under the local laws of Puerto Rico if 
they have been previously convicted under federal criminal law for the same conduct. The Double 
Jeopardy Clause of the Fifth Amendment provides that no person shall “for the same offense ... be twice 
put in jeopardy of life or limb.” Under the dual sovereignty doctrine, however, if two separate sovereigns 
(e.g., the federal government and a state) were to prosecute a person for the same offense, the 
constitutional protection against double jeopardy would not be triggered. Thus, if the Puerto Rican 
government were considered to be a separate sovereign from the United States for purposes of the 
Double Jeopardy Clause, dual prosecutions by the federal government and Puerto Rico would be 
allowed. The Court in Sanchez Valle, however, held that, because Puerto Rico operates under power 
delegated to it by Congress, it is not to be treated as a separate sovereign for purposes of the Double 
Jeopardy Clause. 
The nature of the relationship between Puerto Rico and the federal government has been a subject 
of  long-standing legal and political dispute.  Acquired by treaty after the Spanish-American War of 1898, 
Puerto Rico’s evolution into a constitutional democracy exercising local rule developed over a number of 
years. Congress, acting pursuant to its Article IV constitutional authority to “dispose of and make all 
needful Rules and Regulations respecting the Territory ... belonging to the United States,” passed 
the Foraker Act of 1900, providing local elections for Members of the lower house of the Puerto Rican 
legislature, but requiring presidential appointment (with the advice and consent of the U.S. Senate) of 
Puerto Rico’s Governor, Supreme Court Justices, and Members of the upper house. The Jones Act of 
1917 replaced the upper house of the Puerto Rican legislature with a popularly elected Senate and gave 
the island’s inhabitants U.S. citizenship, while a 1947 amendment to that law empowered the Puerto 
Rican people to elect their own Governor. Finally, under the Puerto Rico Federal Relations Act of 1950, a 
law self-described as “in the nature of a compact,” Congress authorized Puerto Rico to organize a 
government “pursuant to a constitution of their own adoption,” a constitution that was 
subsequently adopted by popular referendum and approved by Congress.   
The Court in Sanchez Valle, while noting the progression of local rule in Puerto Rico, focused on a 
historical question: is the authority to prosecute federal criminal laws and local Puerto Rican criminal laws 
derived from the same “ultimate source” of power? (This historical test, the Court explained, avoids more 
difficult questions that an alternative, functional test would create.) Historically, after Puerto Rico was 
acquired by the United States, local Puerto Rican prosecutors’ power to prosecute was delegated by 
Congress, as only federal criminal laws were applicable in the territory. Although Puerto Rico’s power to 
enact and enforce criminal law is now derived from the Puerto Rico Constitution, which was approved by 
the people of Puerto Rico, the Court determined that this present situation does not change the “ultimate 
source” of prosecutorial power, which remains with Congress. The Court stated that, although Congress 
has broad power over the territories, it does not have the authority to eliminate its own role in having 
conferred political authority to Puerto Rico. Thus, the Double Jeopardy Clause bars successive criminal 
prosecutions by Puerto Rico and the United States for the same offenses. 
Justice Breyer, in a dissent joined by Justice Sotomayor, disputed the notion that identifying the historical 
source of prosecutorial power resolves the question of double jeopardy. For instance, Justice Breyer 
noted that the “ultimate source” of power to enact criminal laws in now independent former territories 
(e.g., the Philippines) or in states admitted to the United States after the original thirteen (e.g., New 
Mexico) could arguably be traced back to actions taken by Congress, respectively, to confer 
independence or statehood. Yet, successive prosecutions by either independent nations or states and the 
federal government are not treated as double jeopardy violations under the dual sovereignty doctrine. 
Ultimately, Justice Breyer argued, congressional activity and historical circumstance can combine to 
establish a new source of power. Furthermore, according to Justice Breyer, Congress, by, among other 
things, authorizing and affirming a Puerto Rico Constitution, created the independent authority for Puerto 
Rico to legislate regarding criminal laws. Consequently, the dissent would have held that successive 
prosecutions by the federal government and Puerto Rico would not violate the Double Jeopardy Clause. 
The Court’s holding in the Sanchez Valle case was limited, and the Court did not address broader issues 
of Puerto Rico’s sovereignty. Instead, Sanchez Valle serves as a reminder of the unique role Congress 
has in legislating with respect to the territories. Thus, when Congress passes legislation affecting Puerto 
Rico’s government, as it did recently with the passage of the Puerto Rico Oversight, Management, and 
Economic Stability Act or PROMESA, Sanchez Valle would not appear to suggest a limit on Congress’s 
constitutional authority over Puerto Rico.  
 
Posted at 11/10/2016 10:19 AM by Kenneth R. Thomas | Share Sidebar 
Category: Constitutional Law, Crime 
 
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