Tropical Storm? The Supreme Court Considers Double Jeopardy and the Sovereign Status of Puerto Rico

Tropical Storm? The Supreme Court Considers Double Jeopardy and the Sovereign Status of Puerto Rico

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Tropical Storm? The Supreme Court Considers Double
Jeopardy and the Sovereign Status of Puerto Rico
11/04/2015
Acquired by treaty after the Spanish-American War of 1898, the Commonwealth of Puerto Rico has been granted self-
government, it has adopted a constitution, and its residents have been given U.S. citizenship. The nature of the
relationship between the United States territory and the federal government, however, remains the subject of a long-
standing legal and political dispute. Based in part on statutory language providing that the relationship between Puerto
Rico and the United States is “in the nature of a compact,” arguments have been made that any change in Puerto Rico’s
political status must be consented to by both parties. Others argue that, under the Territory Clause, the United States has
plenary authority to legislate regarding Puerto Rico without first obtaining the Puerto Rican government’s consent.
A case recently accepted by the Supreme Court will consider anew the relationship between Puerto Rico and the United
States. In Puerto Rico v. Sanchez Valle, the Court will decide 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
offense. 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
prosecute a person for the same offense, the constitutional protection against double jeopardy is not triggered. Thus, the
Supreme Court has held that state and federal prosecutions can be brought for the same offense, and similarly, it has
allowed dual prosecutions by the federal government and Indian tribes. The Court, however, has also held that, as
territories operate under power delegated to them by Congress, they are not to be treated as separate sovereigns for
purposes of the Double Jeopardy Clause.
The case being considered by the Court comes from the Supreme Court of Puerto Rico, the island’s highest territorial
court, which held, consistent with U.S. Supreme Court precedent, that since Puerto Rico is not a separate sovereign, it
cannot prosecute a person who has been convicted in federal court for the same crime. This decision, however, creates
a conflict with an earlier opinion by the federal appellate court with jurisdiction over Puerto Rico, the United States
Court of Appeals for the First Circuit (First Circuit), which held that Puerto Rico should be treated as a state for
purposes of double jeopardy, allowing a person to be prosecuted for the same crime under Puerto Rican and federal
laws. There is also a long-standing circuit split between the First Circuit decision and an opinion by the United States
Court of Appeals for the Eleventh Circuit on this issue.
Puerto Rico, in its petition to the Court for a writ of certiorari, concedes that the dual sovereignty doctrine has not
previously been applied to a territory, but it argues that the nature of Puerto Rico’s relationship with the United States
changed in 1950. In that year, Congress passed P.L. 81-600 (Public Law 600), which contains the “compact” language
noted above and which allowed Puerto Rico to “organize a government pursuant to a constitution of their own
adoption,” subject to congressional approval. Puerto Rico argues that when Congress subsequently approved its
constitution, this approval established the sovereignty of Puerto Rico in much the same way that other territories have
achieved statehood. Puerto Rico analogizes this legislatively created sovereignty to the sovereignty of Indian tribes, and
further notes instances where Puerto Rico has been treated as a state in statutory contexts.
The defendants, in their response to the petition, argue that the passage of Public Law 600 did not change the nature of
the relationship between Puerto Rico and the United States, noting Congress’s retention of plenary authority to review

Puerto Rico’s constitution before it became effective. Further, the defendants argue, the legislative history of Public
Law 600 provided that nothing in the law would change Puerto Rico’s political, social, and economic relationship to the
United States. The defendants also cautioned the Supreme Court against accepting a case that appears likely to have
political implications beyond the narrow legal questions raised in the petition. This latter argument appears to be a
caution that the Court disregarded.
If the Court finds that Puerto Rico is not a separate sovereign, then this might bring into question prior convictions in
the Puerto Rico courts where an individual was prosecuted in both federal and territorial courts for the same crime. If
the Court finds that Puerto Rico is a separate sovereign, this would allow future prosecutions in both the federal and
territorial courts for the same crime. Oral arguments before the Supreme Court have not yet been scheduled.
Posted at 11/04/2015 08:20 AM