New Analysis

U.S. Attorney General John Ashcroft has called on federal prosecutors to be more aggressive in seeking the death penalty, provoking angry denunciations from civil libertarians all over the U.S. and, indeed, the world.

In Puerto Rico, the decision to push for the death penalty in the impending trial of Hector Acosta and Joel Rivera, accused of murdering a storekeeper is becoming a critical national struggle.

The last time the death penalty was invoked in Puerto Rico was in 1927. The Constitution of the Estado Libre Asociado (or “Commonwealth”) outlaws the death penalty, an idea inspired by the United Nations’ Universal Declaration of Human Rights. As part of the 1953 agreement between the U.S. and the UN that gave sanction to continued U.S. control of the island, the U.S. recognized that provisions of its Constitution gave Puerto Rico a higher level of sovereignty than U.S. state or Native American tribal constitutions have. Puerto Rico would be within its rights, under U.S. and international law, to claim that any execution that takes place there is unconstitutional and illegal.

If the Puerto Rican Constitution can be overridden by U.S. law, executive order or court decision while, at the same time, the people of Puerto Rico do not have the right to vote for the President of the U.S. or have representation in Congress, then Puerto Rico is simply a colony, which violates the 1953 accord between the U.S. and the UN on the status of the island.

Fermin L. Arraiza Navas, a Puerto Rican legal scholar at the Rauol Wallenberg Institute for Human Rights and Humanitarian Law at the University of Lund, Sweden, put the issue squarely when he said, “The level of sovereignty reached by the Puerto Rican people, as well as their right to external self-determination and independence, distinguish them from the previous examples [e.g. of states within the U.S. and Native American tribes].”

This underscores, he said, “the incapacity of the federal government to intervene in our legal jurisdiction by means of ordinary congressional legislation.” Arraiza points out that taking the prisoners out of Puerto Rico to execute them, another proposal of the Justice Department, would also be a violation of international law. He also urges the Puerto Rican government to protest this situation to the UN.

Pro-independence groups and other progressive forces in the island are demanding that the governor of Puerto Rico and the Resident Commissioner (non-voting representative of Puerto Rico in Congress) take a stand on the issue.

The New Movement for Independence (MNIP) sharply denounced the effort, calling the death penalty a barbarous act and a violation of the Puerto Rican constitution.

Maria de Lourdes Santiago, vice president of the Puerto Rican Independence Party (PIP), warned against waiting for the court to impose the death penalty before mounting a protest: “The Supreme Court of the United States has refused to rule on the applicability of federal death penalty law in Puerto Rico until a sentence of death has been issued. But here [in Puerto Rico] we well know the history of political problems channeled through the courts for, let this offend whom it may, the phantom of colonial status, for which neither the United States nor its local allies can answer, now raises its head through the issue of the death penalty.”

According to Santiago, PIP Senator Fernando Martin is raising this issue in the Puerto Rican legislature demanding that the US Congress exempt Puerto Rico from this illegitimate imposition of the death penalty.

Emile Schepers is an activist in Chicago and can be reached at