U.S. Territories and the Criminal Law Curriculum

Authors

Emmanuel Hiram Arnaud, Boston University School of LawFollow

Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type

Article

Publication Date

Spring 2025

ISSN

0739-9731

Publisher

Stetson University College of Law

Language

en-US

Abstract

In this Article, I make a case for why issues concerning the territories should be taught in law school courses and suggest a few ways in which federal criminal adjudication in the territories can and should be incorporated into the criminal law and procedure curriculum.¹⁰ As I advance elsewhere,¹¹ criminal adjudication in the territories functions differently than in the mainland United States.¹² Using the framework of what I call the “territorial criminal legal system,” I have begun mapping the contours of the unique prosecutorial ecosystem produced by the territorial condition.¹³ Chief among the characteristics is the federal government’s ability to treat the territories differently than the states.¹⁴ This ability flows from the federal government’s plenary—or complete and virtually unrestricted—power over the territories, which provides Congress with the ability to serve as both the federal and local territorial legislature when it so chooses.¹⁵ Accordingly, Congress can choose to create federal district courts for the territories, allow federal prosecutors to prosecute local crime in the territories,¹⁶ unilaterally apply criminal codes to a territory, or create specialty courts to accommodate local conditions.¹⁸ This ecosystem not only produces uncomfortable prosecutorial arrangements but also justifies its existence in the name of territorial rule.

Below, I focus on how Puerto Rico and American Samoa are directly affected by their territorial relationship with the federal government²⁰ and how that relationship provides fertile ground for important discussions in criminal law and procedure courses that challenge fundamental norms of criminal justice such as democratic accountability, representational criminal justice, and the function of the jury.²¹ As a preview, Puerto Rico and American Samoa stand on different ground with respect to criminal adjudication. They are both unincorporated territories of the United States, but only Puerto Rico has a federal district court;²² American Samoa does not.²³ As a result, people accused of federal crimes in American Samoa must face their proceedings and trials elsewhere in the United States.²⁴ And even though Puerto Rico has a federal district court, most islanders cannot participate as jurors.²⁵ That is because the Jury Selection Service Act requires all federal jurors to have a certain level of English proficiency which about only ten percent of Puerto Ricans possess because the de facto language on the island is Spanish.²⁶ These two realities are a direct product of territorial governance.

In the following pages, I encourage teachers of criminal law and procedure to use the territories as examples that challenge and complicate the traditional narrative of criminal law and procedure.²⁸ Incorporating the territories, however, goes well beyond adding a case or two. Indeed, it requires us to re-imagine or reconstruct essential narratives about our courses. In criminal law, this means challenging the criminal law as a democratic expression when, for example, the people of the territories have never had a say in creating federal criminal statutes that apply to them. In criminal procedure, the territories require us to reflect on established parts of the class, such as the jury trial right, and rethink the meaning of community and how we conceive of inequality with respect to jury selection. This Symposium is about integrating the territories into the law school curriculum. When introducing territorial issues, we must think critically about how doing so complicates essential aspects of our established curriculum.

In Part II, I make the case for why issues concerning the territories should be taught in law schools. In Part III, I briefly describe the historical relationship between Puerto Rico, American Samoa, and the United States. In Part IV, I describe the parallel prosecutorial processes in the territories. I then explain how the current criminal adjudication arrangement in Puerto Rico and American Samoa challenges fundamental norms of our criminal legal system²⁹ and how these unique circumstances can be used in criminal law and procedure courses to not only create awareness of the U.S. territories but also to further interrogate our democratic project.

Recommended Citation

Emmanuel H. Arnaud, U.S. Territories and the Criminal Law Curriculum , 54 Stetson Law Review 341 (2025).
Available at: https://scholarship.law.bu.edu/faculty_scholarship/4064