Should Dual Sovereignty Apply to the Territories, Independently of How the Court Treats Puerto Rico in Sanchez Valle?

           A taken-for-granted premise of the discussion at today’s argument in the Puerto Rico case is that the dual-sovereignty doctrine does not apply in the conventional territories (the American Virgin Islands, Guam, etc).  The Court has indeed made that statement, in dicta, in several cases.  Starting from that initial premise, the question in Sanchez Valle is whether the Commonwealth of Puerto Rico is different.  I had taken that premise for granted, as well, until I was prodded by this case to look into it more deeply.

            It turns out that, as far as I know, there is only one Supreme Court case that has actually held that dual sovereignty did not apply to a second prosecution in one of the territories.  That case is Grafton v. United States, 206 U.S. 333 (1907).  Grafton features prominently in all the briefs (the United States cites it five times) and in today’s argument.  But when I sat down to read Grafton, it turns out to be a remarkably easy case for not applying dual sovereignty and does not have, or need not have, any general implications for dual sovereignty and the territories.

            Grafton, a private in the US Army, was first prosecuted before a general court-martial in the Philippines – essentially, for homicide “as defined by the Penal Code of the Philippines” -- and was acquitted.  He was then prosecuted in the Philippine courts for the same offense.  But back in 1907, this second prosecution was also brought in the name of the United States.  As the Court recounted:  “On the twenty-eighth day of November, 1904, the prosecuting attorney of the Province of Iloilo, Philippine Islands, filed a criminal information or complaint in the name of the United States, in the Court of First Instance of that Province …”  Id. at 342.  Indeed, to appreciate this fact fully, just take a look at the name of the Grafton case before the United States Supreme Court:  it is Grafton v. United States.  In other words, if ever there were a case in which it is a single sovereign prosecuting twice for the same offense, it is Grafton – first the US Army, then the United States.  Of course dual sovereignty does not apply in that context.

            But there is more about Grafton that reveals its age.   For the United States exercised a kind of pervasive political control over the territories, so soon after we came to hold them after the Spanish American War, than what has come to be the case in the modern era.  For example, the chief executive authority for the Philippines, the Governor General, was appointed by the President of the United States and confirmed by the Senate.  Today, the territories, even apart from Puerto Rico, elect their own legislatures and political officials and appoint their own judges.  

            Since Grafton, the Supreme Court has cited Grafton and stated several times in dicta that dual sovereignty does not apply to the territories, but never in case in which this was the holding or in which anything in the outcome turned on that statement.  One of the more significant, Puerto Rico v. Shell Oil, 302 U.S. 253 (1937), was a preemption case, not a double jeopardy one.  But again, even in 1937, the extent of US control over Puerto Rico is stunning, from today’s vantage point.  Puerto Rico had to submit its laws to Congress, which had the power to annul them.  The President, with Senate approval, continued to appoint the Governor.  

            As the only case ever to confront squarely whether dual sovereignty should apply to the territories, Grafton is an exceptional and antiquated case to bear so much weight.  In more than a century since, the Court has never focused on or addressed the question whether Grafton ought to continue to stand for the principle that dual sovereignty can never apply in the territories, even when so much has changed in the extent to which many or all of the territories now exercise a form of self-government that did not exist in 1907.
           Indeed, the consequences to the United States today if dual sovereignty does not apply, especially in Puerto Rico, would seem to be troubling.  If Puerto Rico prosecutes first, the United States would then be shut out of prosecuting the same offense under federal law.  And the executive branch of the United States today cannot stop or control or intervene in a Puerto Rico prosecution under Puerto Rico law in the Puerto Rico courts.  Given the legal framework created by the laws that establish the Commonwealth of Puerto Rico, Congress would have to re-write those laws (assuming, for the sake of argument, it has the power to do so) to permit the United States to control Puerto Rican prosecutions.  The absence of dual sovereignty could easily lead to a race to the courthouse doors between federal and Puerto Rico prosecutors.       

            I do not expect the Court to revisit Grafton in the Puerto Rico case, because none of the parties have asked the Court to think in more contemporary terms about these issues, given the degree of autonomous self-governance even the conventional territories exercise.  Nor is doing to necessary to conclude that dual sovereignty applies in Puerto Rico.  The Court has consistently recognized for many decades now (as many of the Justices did at argument today) that Puerto Rico is “unique” compared to the conventional territories, because Congress and Puerto Rico agreed to a fundamental transformation in Puerto Rico’s status after WWII, when Puerto Rico became the self-governing Commonwealth of Puerto Rico.  Even if dual sovereignty does not apply in the conventional territories, the Court can conclude that it does in Puerto Rico. 

            But it would be helpful to thinking about these issues in the context of the modern territories, even apart from Puerto Rico, if the Court, instead of unreflectively repeating that Grafton establishes dual sovereignty does not apply in the territories, recognized that it should proceed cautiously going forward about putting so much weight on the exceptional context of Grafton in thinking about how dual sovereignty doctrine ought to apply in contemporary circumstances.