What Would Statehood Mean for Puerto Rico’s Criminal Justice Reforms?

In a matter of a year, the U.S. Supreme Court overturned decades of precedents and critical policies that took years of blood, sweat, and tears to build momentum for. The right of women to choose what happens to their own bodies during pregnancy, the use of race as a factor in college admissions despite the value of diversity in educational settings, the establishment of a constitutional right for businesses open to the public to deny service to protected classes.

In the criminal justice context, this ultra-conservative judicial activism continues to roll back basic protections under the Fourth and Fifth Amendments to the Constitution. Indeed, just years ago Justice Sonia Sotomayor raised a clarion call against the court’s allowance of an unconstitutional detention by police to be justified, after-the-fact, by the existence of an outstanding warrant—something no police officer can determine by simply looking at you, unless, presumably, you’re Black or Latinx.

And this simply summarizes what the judiciary alone has done. Congress is constantly entertaining ways to limit the rights of the accused in this country.

The details of what the United States will commit to—or not—when it comes to this politically expedient push for statehood matter.

Why do rollbacks like these matter for Puerto Rico when Congress is considering status options that include statehood?

Amid some leaders urging that Puerto Rico be leaned on to become a U.S. state and that this can somehow magically solve the problems that Americans created over centuries, Puerto Ricans should be asking tough questions about the implications of annexation, or statehood.

I am a son of Puerto Rico. I am also the former president and general counsel of LatinoJustice PRLDEF, formerly the Puerto Rican Legal Defense and Education Fund. I’ve defended civil rights, racial justice, and the right of Puerto Ricans to fair self-determination for my entire career. The pro-statehood messaging around Puerto Rico’s future fails to address the fact that the ways Puerto Rico and the U.S. operate in many spaces are dramatically different.

Puerto Rico is clearly confronting a web of issues stemming from U.S. colonialism. But as history and practice show, the Puerto Rican people have been leaders in spaces like criminal justice.

Since 1980, Puerto Ricans who are incarcerated are allowed to vote and they avidly exercise that right from their prison cells. With over 6,500 of 11,500 prisoners registered to vote in Puerto Rican elections, candidates campaign for their votes in a Caribbean archipelago where democracy is not eliminated through incarceration.

In Puerto Rico, capital punishment was abolished in 1929 and enshrined in its first-ever constitution in 1952. History tells us that the first persons ever executed by the government were enslaved Africans in 1514—killed for leading an uprising. But that is no more, as the command that “The death penalty shall not exist” is the law.

Puerto Rico also has a constitutional right to bail. Since its constitution of 1952 the protection is clear: “Every accused shall be entitled to be admitted to bail.” Apparently, it is the only place in the Western Hemisphere that establishes a fundamental right to bail in all cases. Even fear-mongering by its opponents has been rejected by the public as recently as 2012 and previously in 1994.

In part, Puerto Rico’s traditions stand in contrast to those of most states because it patterned its own Bill of Rights not after the U.S. Bill of Rights but after the Universal Declaration of Human Rights.

Predictably, given its colonial status, these policies create tension with the colonizer especially given where Puerto Rico stands on capital punishment, which the federal government insists has no bearing on it seeking the death penalty in Puerto Rico’s federal courts. This big footing is part and parcel of colonial dominance since 1898, with this year marking the 125th anniversary of the U.S. invasion of Puerto Rico.

Now, this is not to say that there are not severe systemic racial and criminal justice problems in Puerto Rico, where the police department has a federal monitor, deservedly, where a femicide crisis and violence against transgender residents have no end in sight, and where prison conditions are deplorable.

But if Puerto Rico is being boxed into statehood, will Congress commit in writing not to infringe on the progressive values and practices long established in Puerto Rico’s constitution and laws? Will Members of Congress deny the right-wing forces in the island that would be willing to sacrifice these legal protections in exchange for statehood?

Currently, the Puerto Rico Status Act (PRSA) is being pushed in Congress as a remedy to its colonial status. Consider history in a Caribbean country where the legislature, government agencies, schools, and courts—and all those who come before them—conduct business in Spanish, 24/7. Prior to Arizona, New Mexico, Oklahoma, and other states being tracked into the union, Congress included English language requirements in the enabling acts they passed. The U.S. immediately imposed an Americanization policy in the early 1900s to force Puerto Rican schools to teach in English—after decades of disaster and failure Puerto Rico finally restored Spanish as the medium of instruction. Yet the PRSA dodges what Puerto Ricans would be subjected to in crucial matters like language, criminal justice, and taxes.

As a lawyer and as someone deeply concerned about the present and future of Puerto Rico, it’s a big red flag when major issues like these are left out of the conversation and not clearly stated. And I must ask why? And who does this serve? Because it’s not Puerto Ricans, justice, or human rights.

While we witnessed the Supreme Court roll over hard-fought battles to extend “America’s promise,” we were reminded that nothing can be taken for granted. The details of what the United States will commit to—or not—when it comes to this politically expedient push for statehood matter. Puerto Ricans, here and there, need to take heed and demand answers, not the void that this legislation offers.