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Death Penalty Becomes Part Of Status Debate

by Lance Oliver

July 21, 2000
Copyright © 2000 THE PUERTO RICO HERALD. All Rights Reserved.

A federal court judge’s ruling this week has injected the issue of the death penalty into the already contentious and complicated status debate.

The ruling issued by U.S. District Court Judge Salvador Casellas essentially said that the federal death penalty could not be applied in Puerto Rico because the island’s constitution prohibits it and the people of Puerto Rico, with no representation in Congress and no vote for president, had no say in the elaboration of the federal law that led to the possibility of defendants here being sentenced to death.

This is an issue that has been simmering for years, just waiting to erupt to the surface. It goes back to the mid-1990s when Congress passed the Omnibus Crime Bill, which was then signed by President Clinton. The bill added more than 40 federal crimes punishable by death, ranging from a carjacking that involved a death to various drug-related crimes.

The bill greatly expanded the possibilities of a federal court in Puerto Rico sentencing a defendant to death despite the prohibition of the death penalty in the Puerto Rico Constitution.

To seek the death penalty, federal prosecutors must get an approval from the U.S. Attorney General. Janet Reno gave that approval to prosecutors in Puerto Rico for the first time in a case involving a bank robbery at Plaza Carolina, a major shopping mall, in which a security guard was killed. But in the end, the defendants entered a plea bargain for a lesser sentence

Several other cases have also arisen but to date none have gone to a jury with the defendant still facing the possibility of execution.

The ruling by Casellas was in one of the pending death penalty cases. But his ruling has more to do with Puerto Rico’s colonial relationship to the United States than it has to do with the death penalty.

That’s because Casellas did not argue against the death penalty itself, but rather against the notion of a people without federal representation having to follow federally imposed laws.

While Casellas said the death penalty was different from other federal decrees that apply to Puerto Rico, the thinking behind the ruling does open the possibility that other federal laws could be declared inapplicable locally.

The mere possibility of the chaos such a change could cause in the federal courts is a guarantee that the ruling will be appealed. Interim U.S. Attorney Guillermo Gil said he would recommend that the Justice Department appeal.

The Justice Department will have a strong case, based on the precedent that the U.S. Constitution trumps local state constitutions. There is no asterisk by that rule that leads to a footnote saying "except in Puerto Rico." If it is overturned, Casellas’ ruling will become one of the many court decisions that are cited by one status advocate or another to bolster a cause but are forgotten by the general public.

Not surprisingly, former governor Rafael Hernández Colón does not agree with the above statement. He called Casellas’ ruling "one of the most important" ever made about the U.S.-Puerto Rico relationship.

Hernández Colón and other commonwealth supporters, especially the old guard that follows him, love the ruling because it treats Puerto Rico as a near equal to the United States. It says that since the Puerto Rico Constitution prohibits the death penalty and the federal government accepted that constitution back in 1952, it cannot now impose the death penalty. That’s an argument that would be instantly dismissed if any of the 50 states made it and it bolsters the fiction of a "bilateral pact" between the United States and Puerto Rico.

What makes the ruling even more interesting is that the die-hard believers in the "bilateral pact" weren’t the only ones who found something to like. Statehooders pounced on the "erosion" of rights under commonwealth that Casellas talked about. Until commonwealth is laid to rest, these problems will continue, argued pro-statehood officials such as Secretary of State Angel Morey.

The political status issue has been through various federal courts in relation to a variety of cases over the years, in everything from inmates’ rights to citizenship questions. The judicial branch has not yet done any more to resolve it than the executive and legislative branches have done. (Of course it’s not the judicial branch’s responsibility.)

Casellas’ ruling will be the next vehicle to carry the status debate forward, though perhaps not upwards, and keep it alive, but probably not lay it to rest.

Lance Oliver writes The Puerto Rico Report weekly for The Puerto Rico Herald. He can be reached by email at:

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