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Death Penalty Debate: Puerto Rico Part Of U.S
. Goes To Heart Of Islands Status
Anger That U.S. Overrode Local Ban
Puerto Rico Part Of U.S.
July 10, 2003
Puerto Rican protesters have a legitimate, albeit hopeless, grievance.
Two men held a wealthy businessman for ransom, then killed and dismembered him.
Puerto Rican law forbids capital punishment. U.S. prosecutors, however, chose to seek the death penalty against the two in federal court.
One of the protesters insists the decision "infringes on our culture, our laws and our customs."
Of course it does. Welcome to the club. The federal government constantly infringes on people's values, sometimes through legislation and more often by judicial decree.
Nearly everyone in the continental United States shares the Puerto Ricans' pain. Most Americans, for example, favor far greater restrictions on abortion than the federal government will allow.
Nearly a decade ago, Congress passed a law that gave U.S. attorneys the right to try a few egregious classes of crimes -- and to seek the death penalty, even where it is not allowed by local law.
The protesters say their island's status needs to be renegotiated to keep that sort of thing from happening again. But it's doubtful that Congress would give more autonomy to a commonwealth than the states.
Puerto Rico, at least, can solve the problem by becoming independent. States don't have that option.
Death-Penalty Debate Goes To Heart Of Puerto Rico's Status
July 13, 2003
SAN JUAN, Puerto Rico -- The sordid tale played out for a jury in a federal courtroom last week is another example of how the constitutions of the United States and Puerto Rico can collide even over a seemingly unworthy cause.
This one is more than a blip on the island's gruesome-crime radar screen, because the two men on trial for kidnapping and cutting businessman Jorge Hernández Díaz into pieces face the death penalty. And civic and religious leaders, human-rights activists and others are determined that even if the accused are found guilty, their lives will be spared.
Puerto Rico's constitution bans the death penalty. And since the federal death penalty was re-established in 1988, this is the first of the 59 federal capital-punishment cases authorized for the island to reach a jury.
And there's the rub. It's another clash of constitutions or wills between Puerto Rico and the United States. Like the four-year controversy about the U.S. Navy's bombing exercises on the island of Vieques. Or the legal face-off on whether Puerto Ricans on the island should be able to vote for the president who can -- and does -- send them to war.
This clash once again goes to the heart of Puerto Rico's perennial political-status problem. Should Puerto Rico, as a U.S. territory with a unique "commonwealth" relationship with Washington, be subject to a federal mandate on capital punishment that is expressly prohibited in its own constitution? It's a constitution that was not only approved by the island's voters in 1952, but ratified by Congress, which left the ban intact.
The U.S. Supreme Court ruled this year that Puerto Rico is subject to federal law. Lawyers argued that given the degree of the commonwealth's autonomy, Puerto Rico's constitutional ban prevented prosecutors from seeking the death penalty. Some also said it was a case of imposing a law that Puerto Ricans had no hand in creating because the island has no voting representation in Congress.
The commonwealth's critics say this proves the island's political status -- painstakingly forged and ultimately approved in 1952 after Congress flatly rejected statehood and independence as options -- is little more than a "dressed-up colony."
Even the commonwealth's defenders who lead the governing Popular Democratic Party concede that this newest controversy exposes reasons why they must push for more self-governing powers.
"This is a good example of those federal laws that apply to Puerto Rico that infringe on our culture, our laws and our customs," Gov. Sila Calderón said. "It should be one of the aspects that must be improved when the development of commonwealth is under way."
Pascual Ramos was the last person executed on the island in 1927, hanged for cutting off his boss'shead with a machete. Capital punishment was abolished two years later, but by then 23 people -- mostly illiterate and/or black -- had been executed since U.S. troops invaded Puerto Rico during the Spanish-American War in 1898.
In the latest case, businessman Hernández Díaz was abducted at gunpoint Feb. 11, 1998, in front of his convenience store southeast of San Juan. He was shot in the head, chopped into pieces, stuffed in garbage bags and dumped on an isolated road now known as the "road of death."
According to testimony, the victim was an illegal-numbers runner; his son was a former drug trafficker who beat his wife; and the government's star witness was a heroin addict who may have been high when he helped cut up the body.
The sickening tale aside, death-penalty opponents say they will campaign heavily to get politicians to push Congress to exempt Puerto Rico from the mandate. They also are making their case to global commissions, arguing that U.S. imposition of capital punishment on Puerto Rico is discriminatory and illegal under international law.
"We can transfer that successful work building coalitions to get the U.S. Navy out of Vieques to this struggle," said Fermín Arraiza, an attorney with the Citizens Committee Against the Death Penalty. "We have to change this before we can solve the deeper problem of the status of Puerto Rico."
Some say there is precedent. Prisoners-rights advocate Trina Rivera de Ríos recalled how islanders campaigned in New York in the 1960s to keep fellow Puerto Rican Salvador Agrón, known as the Capeman, from being executed when he was a teenager. His life was ultimately spared.
"You don't have to do a lot of convincing about what's wrong with the death penalty," she said. "You just have to have some self-respect."
Puerto Ricans Angry That U.S. Overrode Death Penalty Ban
By ADAM LIPTAK
July 17, 2003
In a trial that is pitting United States law against the culture of Puerto Rico, federal prosecutors are seeking the death penalty against two men, Joel Rivera Alejandro, left, and Héctor Óscar Acosta Martínez, center.
SAN JUAN, P.R., July 15 This island, it is safe to say, hates capital punishment. It has not had an execution since 1927. It outlawed the practice two years later and wrote this antipathy into its Constitution in 1952: "The death penalty shall not exist."
That is why a federal trial here, in which the Justice Department is seeking the execution of two men accused of kidnapping and murder, has left many Puerto Ricans baffled and angry.
Local politicians, members of the legal establishment, scholars and ordinary residents have denounced the trial, now in its second week. They call it a betrayal of the island's autonomy, culture and law, in particular its Constitution, which Congress approved in 1952 as part of the compact that created Puerto Rico's unusual and frequently uneasy association with the United States mainland.
Not even relentless daily testimony about the gory crime the kidnapped man was shot and dismembered has softened the outrage voiced by many here.
"Although we are talking about some facts that are very gruesome, the people of Puerto Rico do not approve in any way of capital punishment," said Arturo Luis Dávila Toro, the president of the Puerto Rico Bar Association.
"If the people of Puerto Rico decide that capital punishment cannot be used, even in federal prosecutions, it is against the Compact of 1952," Mr. Dávila Toro said. "How can I explain that my Constitution is not respected by the nation that teaches us how to live in a democracy?"
People here associate capital punishment with the military government installed by the United States in 1898, after it took Puerto Rico from Spain in the Spanish-American War. That government executed two dozen mostly poor and illiterate people before the island outlawed the death penalty.
Puerto Rico is also heavily Roman Catholic, and polls show that many residents oppose capital punishment on religious and moral grounds. During the protracted jury selection for the current trial, many potential jurors were rejected because they said they could never impose the death penalty.
Opponents of the prosecution say they are most offended by what they see as an affront to Puerto Rico's legal autonomy.
A Justice Department spokesman had no comment. In court papers, prosecutors have said that federal criminal laws override local laws, whether they are statutes, state constitutions or the Puerto Rican Constitution.
The law establishing the Puerto Rican commonwealth said federal laws that were "not locally inapplicable" were valid on the island. That phrase, with its ambiguous double negative, has given rise to inconsistent decisions.
In 2000, a federal judge here threw out the capital charges against the two defendants in the current trial, Joel Rivera Alejandro and Héctor Óscar Acosta Martínez. The judge, Salvador E. Casellas, noted that Puerto Ricans have no vote in presidential elections and have only a single, nonvoting representative in Congress.
"It shocks the conscience," Judge Casellas wrote, "to impose the ultimate penalty, death, upon American citizens who are denied the right to participate directly or indirectly in the government that enacts and authorizes the imposition of such punishment."
The United States Court of Appeals for the First Circuit, in Boston, which hears all appeals of federal cases from Puerto Rico, reversed Judge Casellas's decision in 2001 and reinstated the capital charges.
"We fully accept the strength of Puerto Rico's interest and its moral and legal sentiment against the death penalty," the appeals court said. But the commonwealth's argument, it continued, "is a political one, not a legal one."
A different judge, Héctor Laffitte, is supervising the trial. He has instructed the lawyers in the case not to talk about it in public, and William D. Matthewman, who represents Mr. Acosta Martínez, had only a general comment.
"It seems a waste of time and resources," Mr. Matthewman said, "for the federal government to go into any jurisdiction where it's not wanted."
A key witness in the case is José Pérez Mojica, a former heroin addict. On Monday, Mr. Pérez Mojica testified that he had briefly guarded the kidnapped man, Jorge Hernandez Diaz, acted as a lookout in exchange for five bags of heroin and $65, supplied the ax with which his body was hacked apart and helped to dispose of his remains. But he said he did not participate in concocting the plan or in the killing and mutilation.
Mr. Pérez Mojica, 25, said he had agreed to testify against the two defendants to avoid life in prison, the harshest penalty under Puerto Rican law. Asked whether he also feared what Mr. Matthewman called "the federal death penalty," he seemed confused but allowed that he was not eager to be executed, either.
Although Mr. Pérez Mojica pleaded guilty to his role in the kidnapping more than four years ago and has been in prison since, he will not be sentenced until the trial is over. He faces up to 20 years.
Justice Department guidelines allow capital charges to be filed only where the federal interest in the prosecution is more substantial than the local one. In the Clinton administration, the guidelines took account of local opposition to the death penalty. Twelve states and the District of Columbia also do not have the death penalty.
"In states where the imposition of the death penalty is not authorized by law," the guidelines said, "the fact that the maximum federal penalty is death is insufficient, standing alone, to show a more substantial interest in federal prosecution."
The Justice Department eliminated that provision in revised guidelines issued in 2001. Legal experts say that move implies that parts of the country that forbid the death penalty locally are more likely to have it sought for federal crimes.
"It was a political decision to remove that sentence," said Rory K. Little, a professor at Hastings College of the Law in San Francisco and a former Justice Department official who served under Attorney General Janet Reno in the Clinton administration. "The Reno Justice Department was much more willing to listen to local assessments."
The current Justice Department has been seeking the death penalty more often and in more places than earlier administrations had, and officials in Washington regularly override local recommendations not to seek the death penalty. Department officials say these trends reflect an effort to treat people charged with serious crimes similarly, no matter where the crimes were committed.
Federal prosecutors are now also taking more cases to trial rather than accepting plea deals. In 16 recent federal capital trials, juries rejected the death penalty 15 times.
Gov. Sila M. Calderón of Puerto Rico said through a spokesman that she was "totally and absolutely against the death penalty because of ethical and moral reasons."
Ms. Calderón added that it would be inappropriate for her to comment on the trial while it is under way or to speculate about whether she would seek clemency if the defendants were sentenced to death.
Kenneth McClintock, a Puerto Rican senator and a member of the opposition New Progressive Party, said that accepting federal capital prosecutions was a price of association with the mainland.
"In general, Puerto Ricans are massively against the death penalty," Mr. McClintock said, adding that he opposes it as well. "But so long as you have a federal law, it should apply uniformly. We should not be asking for an exclusion for Puerto Rico.
Mr. Pérez Mojica, the informant, sat in front of a Puerto Rican flag as he answered questions through a translator on Monday. The American flag was tucked in a far corner of the courtroom.
The translation into English seemed superfluous if not comic to many people in the courtroom, whose Spanish was mostly better than their English.
Judge Laffitte, who occasionally corrected the translator, tried to explain the importance of preparing a clear written transcript in English.
"This is a sensitive and important case," he said in court on Monday, and he wanted to be sure that the appeals court judges in Boston understood what had gone on during the trial.