In the midst of a debilitating humanitarian crisis in Puerto Rico and high-profile litigation concerning other U.S. territories, scholars, political leaders, and activists have elevated conversations of constitutionally sanctioned inequality into the public spotlight. With respect to Puerto Rico, these conversations focus on its current economic morass and relation to the debate over decolonization. Absent from these important discussions is the role that federal criminal law plays in manifesting Congress’ continued plenary power over U.S. territories. This Article breaks from that pattern and highlights an ignored part of federal criminal jurisprudence: the federal prosecution of local criminal activity in Puerto Rico.

This Article argues that federal prosecution of local criminal activity is an explicit manifestation of the federal government’s continued colonial grasp over the Island. Moreover, it contends that scholars, advocates, and politicians should consider the significance of federal prosecutorial power as they approach decolonization options for the Island. The Article begins by setting the current stage of federal prosecutions on the Island, explaining how local and federal forces often work together in prosecuting federal crimes, and exhibiting how that collaboration has led to a federal system of mass incarceration over which Puerto Ricans have no direct control. The Article next details the jurisprudential evolution of applying federal criminal laws to the Island and highlights the way in which the creation of the Commonwealth of Puerto Rico in 1952 has allowed courts to simultaneously pay lip service to the ideals of liberty and equality on the mainland by invoking the popularly branded “compact theory, ”while sanctioning unequal treatment in Puerto Rico. Finally, the Article explores why conversations about decolonization should focus on the federal government’s ability to prosecute local criminal activity.