Are Puerto Rico and the United States Separate Sovereigns for the Purposes of the Double Jeopardy Clause?

By Claribel Morales

Claribel Morales graduated from Western New England University School of Law in May of 2019. During her time at WNE she was the Co-President of the Public Interest Law Association (PILA) and Vice President of the Latino/a Law Student Association (LLSA). Claribel’s family hails from Yabucoa and Humacao, Puerto Rico. Claribel is currently serving as an AmeriCorps Legal Advocate at Community Legal Aid in Springfield, Massachusetts.

A case recently decided by the Supreme Court considered the legal nature of the relationship between Puerto Rico and the United States for purposes of the Double Jeopardy Clause.  In Puerto Rico v. Sanchez Valle, the Supreme 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 the jurisdiction of the U.S. federal courts for the same conduct.  To further examine this case, and provide analysis into the significance of this decision, the Double Jeopardy Clause of the Fifth Amendment should be defined.  The Double Jeopardy Clause provides that “no person shall for the same offense . . . be twice put in jeopardy of life or limb.” However, under the dual sovereignty doctrine, if two separate sovereigns (the federal government and the state government, for example) were to prosecute for the same offense, the constitutional protection against double jeopardy would not be triggered.  See Heath v. Alabama, 474 U.S. 82, 88 (1985).  Therefore, 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 the local prosecutor’s office in Puerto Rico would be allowed.

However, Justice Kagan, writing for the Court, 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.  Puerto Rico v. Sánchez Valle, 136 S. Ct. 1863, 1877 (2016).  Applying the “ultimate source” test, the Court reasoned that although Puerto Rico’s power to enforce criminal law is derived from Puerto Rico’s Constitution, which was approved by the people of Puerto Rico, it does not change the fact that the “ultimate source” of prosecutorial power remains with Congress.  Id. at 1874.  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.  Id. at 1872.  Thus, the Double Jeopardy Clause bars successive criminal prosecutions by Puerto Rico and the United States for the same offenses.

Although the Sanchez Valle decision has received much criticism, it should be noted that from the viewpoint of the defendants in this case, the decision rendered was a win.  However, in regards to the overall legal doctrinal analysis, the ruling in Sanchez Valle supports the conclusion that the federal government has complete and unilateral control over Puerto Rico.  See id. at 1874–75.  Moreover, this case has political implications as it has diminished the constitutional status that the Puerto Rican government believed it possessed since the creation of the Puerto Rico Federal Relations Act of 1950 and the ratification of the Puerto Rican Constitution in 1952.

Justice Breyer, joined by Justice Sotomayor, argued in his dissent against the notion that identifying the historical source of prosecutorial power resolves the question of double jeopardy.  Id. at 1878. “[T]his history of statutes, language, organic acts, traditions, statements, and other actions, taken by all three branches of the Federal Government and by Puerto Rico, convinces me that the United States has entered into a compact one of the terms of which is that the ‘source’ of Puerto Rico’s criminal law ceased to be the U. S. Congress and became Puerto Rico itself, its people, and its Constitution.  The evidence of that grant of authority is far stronger than the evidence of congressional silence that led this Court to conclude that Indian tribes maintained a similar sovereign authority.  Indeed, it is difficult to see how we can conclude that the tribes do possess this authority but Puerto Rico does not.  Regardless, for the reasons given, I would hold for Double Jeopardy Clause purposes that the criminal law of Puerto Rico and the criminal law of the Federal Government do not find their legitimacy-conferring origin in the same ‘source.'” Puerto Rico v. Sánchez Valle, 136 S. Ct. 1863, 1884–85 (2016).  

These dueling opinions by the majority and dissent adopt a “precedent-based framework” which creates a disparity in understanding the “ultimate source of power” test, in the viewpoint of formalist or functionalist terms.  Puerto Rico v. Sanchez Valle, 130 Harv. L. Rev. 347, 352 (2016).  Justice Kagan’s formalist analysis detailed a divide between the types of entities that can and cannot enjoy Fifth Amendment protections.  Id.  In contrast, in his dissent, Justice Breyer “sought to reinvent the dual-sovereignty doctrine on functionalist grounds”  Id. at 353.  By doing so, Justice Breyer asks whether a government has “gained sufficient sovereign authority to become the ‘source’ of power behind its own criminal laws.”  Sanchez Valle, 136 S.Ct. at 1880.

In order to predict the outcome of this issue in the future, we must consider the current makeup of the Supreme Court and its continuing effort to follow the legal principle of stare decisis.  Additionally, it is important to note the unfortunate direction of political dealings with Puerto Rico from the current administration.  Thus, for future cases involving the Double Jeopardy Clause and individuals living in Puerto Rico the current legal doctrine will likely be maintained.  However, if the political status of Puerto Rico changes, there is a chance that the legal doctrine could as well.  Specifically, if the political status changes the sovereignty of Puerto Rico, the outcome of the “ultimate source” test applied by Justice Kagan would likely have a different outcome.  Until that time, however, Puerto Rico remains subject to age-old colonialism.

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