Building Territorial Criminal Legal Systems: An Initial Sketch
Criminal law and procedure have played central roles in territorial governance. Since the founding, Congress established the internal governance of territories through statutes known as organic acts. Those organic acts produced a spectrum of sovereignty, subjecting territories to temporary undemocratic rule with increased local autonomy as the local population grew, culminating with the territories’ admission as a state of the Union. Typically borrowing substance and procedure from existing states, Congress, through organic acts, tasked territorial officials with creating local systems of criminal adjudication. These systems fulfilled several functions including law enforcement and the assimilation of newly acquired territories into the American fold. Despite its significance, however, the role of criminal law and procedure in the story of territorial governance is largely understudied.
In this Essay, I begin interrogating the criminal legal systems of several past and current territories. This initial analysis provides insights into the patterns and process of criminal administration in the territories and highlights some dangers and pitfalls that perpetual territorial rule has on criminal legal systems. Federal policies significantly influenced territorial substantive criminal law and their systems at large. And as these territories became states, the newly minted states gained significant insulation from federal intervention. Although this process was once defensible, the novel conception of perpetual territorial rule following the Insular Cases significantly weakened its purpose. By juxtaposing key characteristics of modern territories to those of old, this Essay begins the process of unearthing patterns in territorial criminal administration which suffer from age-old deficiencies—namely, Congressional plenary power over the territories and the lack of democratic representation in the political process—that persist as a result of constitutionally sanctioned perpetual territorial rule.
Cite as Emmanuel Hiram Arnuad, Building Territorial Criminal Legal Systems: An Initial Sketch, 18 N.Y.U. J.L. & Liberty 622 (2026)