Abstract
The Maritime Drug Law Enforcement Act (MDLEA) was passed in 1986 by the U.S. Congress at the height of the American drug war frenzy, further empowering the U.S. government to arrest and prosecute suspected drug traffickers nearly anywhere in the world when transporting drugs by sea. In this article, we use a case study of MDLEA prosecutions in the District of Puerto Rico to identify and delineate five distinct characteristics of criminal law's coercive capacity: (1) jurisdictional capacity; (2) defendant pool capacity; (3) charging capacity; (4) evidentiary capacity; and (5) punishment capacity. While some aspects of the MDLEA are unique, many of these capacious features are inherent to contemporary U.S. criminal law more broadly. Using data from interviews with legal actors, we show how criminal law's capacities work together to ensure convictions and long prison sentences even in the face of formal legal roadblocks. We conclude by suggesting that without scaling back the capacity of such laws, the punitive war on crime in the United States will not only persist but can easily be ramped up to serve political and/or organizational interests.
In June 2020, a U.S. Customs and Border Protection aircraft conducted routine surveillance above the Caribbean Sea and spotted an open-hull, 25-foot “go-fast” vessel 58 miles southwest of the Dominican Republic with what appeared to be two occupants and unspecified packages in the hull. Suspecting that the boat was transporting illegal narcotics, a U.S. Coast Guard (USCG) cutter was dispatched to intercept it. When the cutter reached the suspect boat, three occupants, but no packages, were aboard. The USCG crew later found three packages floating in the sea, 1–2 nautical miles from where the boat was interdicted. The packages contained approximately 150 kg of cocaine.
Elvin Lopez-Garcia, 1 identified as the “captain” of the suspect boat, was asked about the occupants’ and vessel's nationality. He claimed Colombian nationality for all three men and the boat. After the Colombian government neither confirmed nor denied the boat's registry as Colombian, USCG officers boarded the suspect boat and “ionscan”-tested the men and the boat's surfaces for traces of illicit drugs. Although no drug traces were detected, the officers removed the men, chaining them up on the USCG cutter, and then scuttled the go-fast vessel. Four days later, the men were delivered to federal custody in Puerto Rico, where each was charged with one count of conspiring to possess with the intent to distribute a controlled substance on a vessel subject to the jurisdiction of the United States, and a second count of aiding and abetting in such a conspiracy. Given the weight of cocaine alleged in the indictment, each faced a mandatory minimum sentence of 10 years in federal prison, and a maximum life sentence, if convicted.
This case was a fairly typical one charged under the 1986 Maritime Drug Law Enforcement Act (MDLEA) and indeed is not even near the most distal from the U.S. territorial boundaries. Under the MDLEA, U.S. federal agents have the power to make drug arrests on the high seas around the world, and prosecutors need not prove any nexus to the United States when charging them in federal courts. Surveilling international waters surrounding Caribbean nations, Central America, and South America is routine practice for a host of U.S. agencies, resulting in hundreds of people every year, almost exclusively foreign nationals, being picked up and detained on USCG cutters under horrendous conditions for days, weeks, and even months (Wessler, 2017). They are then brought to one of a multitude of U.S. federal courts to face drug charges that come with draconian punishments.
In this paper, we use the MDLEA law and its operationalization as a case study to theorize about the dimensions of criminal law's capacity, or the range and scope of possibility that exists in formal law when tapped by legal actors. In doing so, we suggest that law's formal attributes need to be as closely attended to as law's operationalization in order to fully assess its social effects, including in the sustenance of American punitiveness. We draw on data from the federal District of Puerto Rico, which regularly prosecutes MDLEA cases, to illustrate how the coercive capacity of formal criminal law is realized when put into action against defendants charged under MDLEA's provisions.
We first delineate five distinct dimensions of criminal law's capacity: (1) jurisdictional capacity, both regarding where law enforcement can obtain and arrest suspects and where those suspects can be charged; (2) defendant pool capacity regarding the universe of potential defendants subject to a given law; (3) charging capacity, including the multiple ways single acts can be charged to ensure conviction; (4) evidentiary capacity, regarding the laxity of standards for admissible evidence and low bars for conviction; and (5) punishment capacity, including the statutory floors and ceilings on sentences, sentencing enhancements, and sentencing guideline provisions that render federal drug laws like the MDLEA so powerful, and even the pretrial punishment conditions that contribute to defendants’ waiving their right to trial and pleading guilty. We then draw on in-depth interviews with legal actors in the District of Puerto Rico to illustrate how criminal law's capacity is mobilized in MDLEA cases, and to demonstrate how criminal law-in-action is contingent upon the universe of possibilities in the formal law's capacity. Our goal is to elucidate how these capacities can and do produce extreme punishment when put into action by prosecutors by creating pressure on defendants to waive their rights and enter guilty pleas to charges that come with lengthy prison sentences.
Theorizing (criminal) law's capacity
The notion of law's capacity, or legal capacity, 2 has been characterized as “the power that law produces to have social effects” (Verma and Sykes, 2022: 37). It can be thought of as potential: the range of possibilities that exist when the formal law is wielded or put into action by legal actors and institutions, including the courts, the judiciary, prosecutors, and the police (Koyama, 2024). In this conception, formal law's specific provisions (and omissions) have varying qualities and degrees of potential that can be tapped, rendering different laws more or less capacious. In one of the only empirical examinations explicitly addressing the features of law's capacity, Verma and Sykes (2022) conducted a census of California's full body of legal codes to map and catalog all the provisions that authorize the state to impose financial penalties and related financial obligations. They found that these laws’ capaciousness comes with their ubiquity, their broad scope and dispersal across many different legal code types and institutions, and their inconspicuousness given that many such sanctions are codified outside of the state's criminal code. Thus, they argue that the very architecture of the law contributes to the power it can unleash, furthering “social inequality through statutory inequality” when discretionarily wielded by legal actors (Verma and Sykes, 2022: 39). Law's capacity in this case, where the various provisions are embedded in disparate code sections, yet cross-referenced, interdependent, and ripe with cumulative possibilities, functions as “a circuitry of power with multiple trigger points and levers” (Verma and Sykes, 2022: 40).
To that point, law's capacity and law's power are related but nonetheless conceptually distinct. Beyond its expressive power, a significant share of law's power comes through its implementation, particularly regarding its coercive power (Green, 2016; Yankah, 2008), whereas capacity speaks to the potential and the universe of possibilities for how the law might be wielded, as it exists in codebooks, statutes, regulations, and so on. This distinction, and the interdependency between the two concepts, is especially clear in the case of contemporary U.S. criminal law. Criminal law on the books changed dramatically in many U.S. jurisdictions beginning in the 1970s, such that both statutory minimum and maximum punishments increased, overlapping codified criminal offenses “mushroomed,” and definitions of crimes grew more expansive and easier to prove, including by eliminating specific intent requirements for proof of guilt (Stuntz, 2011).
As Stuntz (2011: 260) argued, “each of these shifts in substantive criminal law made it possible for prosecutors to prosecute more defendants, and each made it easier for prosecutors to induce a larger share to plead guilty,” frequently to punishment terms harsher than what would have been prior to these transformations. Central to this is the ability of prosecutors to overwhelm defendants with threats of more extreme punishment outcomes, impelling them to waive their formal procedural rights, thereby largely undercutting the protections that exist in theory for criminal defendants (Lynch, 2016). Given that this capacity-expansion enhanced prosecutors’ discretion in who to charge, the content of charges, and the content of plea offers, it also contributed to increased racial inequality that occurred outside of open court, obscured from observers (see, e.g., Davis, 1998; Lynch, 2016). As such, these changes to criminal law's capacity made American mass incarceration possible as a social effect via the discretionary power they unleashed for law enforcement, including prosecutors.
The law's capacity remains critical to reform efforts in the wake of U.S. mass incarceration, too. Thus, Beckett and Beach (2021) have shown that the degree of scale-back from mass incarceration at the state level is contingent upon how much formal law reforms actually rein in the capacity that allowed for enormous discretionary power by legal actors. They examined how formal reforms to two distinct states’ sentencing schemes differentially constrained prosecutorial and judicial discretion, finding that restrictions on sentence maximums were necessary to produce meaningful reductions in imprisonment. As they observed, the nature and effects of legal discretion can only be understood in relation to the legal rules that shape, limit, magnify, and/or constrain it... This suggests that the exercise of discretion and criminal sentencing law are best understood as dynamically interrelated rather than separate and distinct. (Beckett and Beach, 2021: 2)
While neither Stuntz (2011) nor Beckett and Beach (2021) explicitly characterized these developments as expansions and/or contractions of criminal law's capacity, their observations do speak to it. In our conceptual model of criminal law's capacity, we build on and expand beyond the elements these scholars have identified. Specifically, we delineate and distinguish five dimensions of criminal legal capacity, as summarized in Table 1. The first dimension is jurisdictional capacity, and the freedom and range prosecutors have to bring cases jurisdictionally. Jurisdiction is generally geographically bound or territorial, but it also goes to subject matter, or the kinds of legal issues that can be brought in a given court (Richland, 2013). The second dimension is contingent upon but distinct from jurisdictional capacity, which is the defendant pool capacity. By this, we mean how broad and/or populous is the universe of potential defendants eligible for prosecution on a given charge and in a given jurisdiction. Greater defendant pool capacity not only provides for more potential prosecution targets for a given offense, but it also adds to law enforcement's discretionary power to pursue—or not—those suspects on the basis of policy incentives, politics, or even base motives like bias or xenophobia. Federal prosecution of immigrants stands as an exemplar of the discretionary power that comes with defendant pool capacity, as it can easily be ramped up, including for political gain, given the large available pool (Lynch, 2023).
Criminal law's five capacities.
The third dimension is charging capacity, which goes to Stuntz's (2011) observations about how conduct can be criminalized in multiple ways, resulting from overlapping criminal statutes. It also goes to charging add-ons, including recidivist and other enhancements that increase punishment exposure (Lynch, 2016; Stuntz, 2011). Fourth is evidentiary capacity, which has an inverse relationship to requirements for proof. That is, the higher the bar for evidence supporting conviction, the lower the capacity. Thus, statutes lacking specific criminal intent requirements provide more capacity by lowering the evidentiary bar to conviction (Stuntz, 2011). Evidentiary rules that allow for things like uncorroborated accomplice testimony in support of convictions (Heller, 1996; Ouziel, 2014), as is applicable in federal drug conspiracy cases, also increase capacity.
The fifth and final dimension is punishment capacity, including both statutory sentencing floors (i.e., mandatory minimums) and ceilings as to how punitive an imposed sentence can be for a given conviction (Beckett and Beach, 2021; Lynch, 2016; Stuntz, 2011), sentencing enhancements, and provisions of sentencing guidelines that increase or decrease recommended sentences. It also includes ostensibly non-punitive actions, such as pretrial detention, that are nonetheless experienced as punishment (Anderson et al., 2024) and that put immense pressure on defendants to plead guilty (Petersen, 2020). Punishment capacity serves as one of the most powerful “hammers” available to federal prosecutors to steer case outcomes, especially in drug cases (Lynch, 2016).
Federal drug law reforms and the quietly radical MDLEA
Nowhere has criminal law's capacity been expanded more along these dimensions than in the 1980s’ U.S. federal criminal drug law reforms (Lynch, 2012; Provine, 2007). Most notably, U.S. Congress passed the Anti-Drug Abuse Act of 1986 (Public Law, 99–570, 1986), which dramatically increased federal drug law's charging and punishment capacity. The “Narcotics Penalties and Enforcement” subsection of this Act distinguished between various controlled substances by setting different trigger weights for mandatory prison sentences of 5 or 10 years, with crack cocaine serving as the punitive anchor. This law included the infamous provision incorporating a 100-1 powder-crack cocaine disparity whereby, for instance, offenses involving just 5 grams of crack cocaine received the same 5-year mandatory minimum sentence as offenses involving 500 grams of powder cocaine. 3 This occurred just as the inaugural U.S. Sentencing Commission promulgated new federal sentencing guidelines that restricted judicial discretion in sentencing, thereby inhering prosecutors with significantly more discretionary power (Stith and Cabranes, 1998).
Given the timing, the mandatory penalties under the 1986 Anti-Drug Abuse Act got incorporated into the new federal sentencing guidelines, ensuring that even those who did not face drug mandatory minimums would be punished more harshly than under the prior sentencing regime (Baron-Evans and Stith, 2012). The 1986 law also dramatically increased mandatory sentences for drug defendants who have previous drug convictions (Lynch, 2016; Russell, 2010). And it lowered evidentiary requirements to prove illegal drug distribution when charged as a conspiracy. Unlike in many federal conspiracy crimes, no overt illegal act needs to be proved to find a defendant guilty of a drug distribution conspiracy; only the mere proof of an agreement to participate in the illegal activity is necessary (Heller, 1996). Moreover, under the conspiracy provisions, even the lowest-level participants in the drug trade can be held responsible for the full weight of the entire conspiracy's trafficked drugs (Hughes, 2022). Federal jurisdiction in the illicit drug arena had already been expanded in 1970 to incorporate intrastate offenses that had, prior to that, primarily been state prosecutors’ jurisdiction (Beale, 1996). Taken together, these changes broadly expanded all five capacities in the federal drug enforcement context, prompting immense growth in the federal drug caseload, higher rates of guilty pleas, and dramatically harsher sentencing (Lynch, 2016).
While the federal drug mandatory minimums, especially the crack-powder cocaine punishment disparities that disproportionately impacted Black defendants, have received considerable attention and critique (e.g., Alexander, 2010; Provine, 2007), one of the most far-reaching provisions, literally, of 1986 drug legislation—the MDLEA—has largely operated without garnering much public notice. Yet, as we demonstrate, it epitomizes the enormous capacity that resides in current U.S. federal drug law and exemplifies key features of contemporary criminal law in the United States. Given its provisions, it serves as a vivid, albeit extreme, case to illustrate criminal law's capacity across the five dimensions we delineate, offering a clear view of criminal law's potential to subjugate, coerce, and punish (see Gerring, 2006, on how extreme cases can reveal underlying logics and meanings of social phenomena). Our goal in the forthcoming analysis is therefore descriptive, not causal, aiming to provide empirical evidence of how these capacities can be tapped into in practice.
The MDLEA built upon what was already an expanding body of federal law that gave the U.S. jurisdiction to go beyond its land borders to police drug trafficking (Lewis, 1982; Lyons, 2023). It authorized U.S. law enforcement agents to pursue suspected drug traffickers around the globe, on the high seas, and even in the territorial waters of other nations when they consent. Suspect boats need not be under U.S. registry, nor do suspects need to be U.S. residents or citizens. It grants jurisdiction to interdict foreign-registered vessels where the country in question has entered into agreements allowing the United States to do so; countries may also waive jurisdiction in individual cases to allow the United States to prosecute. The U.S. government does not even need any evidence suggesting that the suspect drugs were U.S.-bound, and indeed, the majority of drugs seized in these cases is not bound for the United States (McSweeney et al., 2025). The United States can even prosecute people who operate solely on foreign soil and never board subject boats for conspiring to transport drugs on boats subject to MDEA jurisdiction.
Furthermore, the United States claims jurisdiction over any vessel deemed “stateless,” the definition of which was broadened by the MDLEA to include vessels “that do not provide evidence of registry upon request as well as those whose asserted flag state does not ‘affirmatively and unequivocally’ confirm their registration” (Lyons, 2023: 142–143). Jurisdiction is conferred by judges as a preliminary matter and cannot be challenged by defendants at trial. It is the loosening of the statelessness definition under MDLEA, coupled with the change in how jurisdiction is determined, that accelerated the number of these prosecutions in U.S. federal courts. While no empirical work has tracked these cases over the long term, recent work suggests that the number of suspects interdicted at sea has increased since 2015, almost all of whom were foreign nationals (McSweeney et al., 2025). The predominant drug transported is cocaine, and about 90% of the interdicted boats are alleged to be transporting 150+ kg of cocaine (McSweeney et al., 2025).
Puerto Rico as a case study
In the present analysis, we delineate and distinguish the five dimensions of criminal law's capacity, using a case study of MDLEA enforcement in the District of Puerto Rico. We are particularly interested in looking at how these cases unfold in Puerto Rico because at the time we conducted the research, core questions about jurisdiction and statelessness in a District of Puerto Rico-originated case were being litigated in appellate court (U.S. v. Davila-Reyes, 2022, 2023). The circumstances in the underlying case were remarkably similar to those of Mr Lopez-Garcia and his co-defendants, whose case was described in our opening and whose proceedings we describe in the forthcoming analysis. In U.S. v. Davila-Reyes (2022), the defendants were intercepted by the USCG in the Caribbean, after allegedly jettisoning containers of cocaine in the sea when they realized they were being surveilled. The men claimed Costa Rican nationality for themselves and the boat; the Costa Rican government neither confirmed nor denied their nationality claims. The men were then taken to the District of Puerto Rico, where they were prosecuted and convicted under MDLEA.
In January 2022, a three-judge panel of the 1st Circuit Court of Appeals ruled that Congress exceeded its authority under Article I of the Constitution in enacting § 70502(d)(1)(C) of the MDLEA. That provision expands the definition of a “vessel without nationality” beyond the bounds of international law and thus unconstitutionally extends U.S. jurisdiction to foreigners on foreign vessels. (U.S. v. Davila-Reyes, 2022: 158)
The defendants’ convictions were vacated. The Davila-Reyes decision was subsequently withdrawn by the full 1st Circuit Court, and in October 2023, the court reinstated the convictions. The 2023 decision side-stepped the big jurisdictional questions but nonetheless endorsed the jurisdictional breadth of the statute. 4 Thus, between January 2022 and October 2023, the legality of prosecutions for defendants like Mr Lopez-Garcia was in flux in Puerto Rico.
The District of Puerto Rico is also an apt case because it has the fourth largest MDLEA caseload of the 20 district courts in the United States that have prosecuted these cases in recent years, just behind the caseload of the Southern District of California (McSweeney et al., 2025). While the District of Puerto Rico prosecutes about double the percentage of drug trafficking cases relative to the overall federal caseload's share, this is primarily because the other large category of federally prosecuted offenses—immigration crimes—is significantly less likely to be charged in Puerto Rico (United States Sentencing Commission, 2024). Federal drug sentence lengths in Puerto Rico are generally in line with national averages (United States Sentencing Commission, 2024) and MDLEA sentences in Puerto Rico are neither the harshest nor the most lenient of the districts that regularly prosecute these cases (McSweeney et al., 2025). Thus, this district is not an outlier in its prosecution and sentencing practices, and it offers the timely test-case of the limits of MDLEA's capacity via the Davila-Reyes litigation.
We draw on interview data collected during Summer 2023 in Puerto Rico, to illustrate each of the five dimensions of law's capacity as it is realized in legal action in this setting, and to show how even a significant complication like the Davila-Reyes appellate case could be overcome due to MDLEA's capaciousness, allowing for affected cases to proceed to conviction and punishment. While in Puerto Rico, the second author observed relevant court proceedings and interacted with and interviewed 19 defense attorneys and 2 assistant U.S. attorneys. The interviews followed our interview guide, covering federal criminal justice practices in the district, experiences handling drug cases and MDLEA cases, and how the Davila-Reyes case was impacting proceedings. It also included ad hoc questions about ongoing proceedings. Interviews ranged from 16 to 98 minutes long, averaging 52 minutes.
The MDLEA's five capacities in practice
Jurisdictional capacity
The MDLEA's most notable capacity is its jurisdictional reach, both in terms of where suspects can be apprehended and where they can be prosecuted. As previously described, no nexus with the United States is necessary, and by statute, authorities need not obtain unequivocal evidence of statelessness. While the federal district of Puerto Rico prosecutes a notable share of MDLEA defendants (McSweeney et al., 2025), it also has a caseload of “boat cases” not necessarily convicted under MDLEA because they were apprehended within territorial waters.
A prosecutor assigned to the Transnational Organized Crime Section, which prosecutes these cases, shared that their office receives at least one “boat case” a week, and that the number of such cases had noticeably increased since the pandemic. Generally, 3–4 defendants are indicted in each boat case. In Puerto Rico, the typical MDLEA case is intercepted near the Dominican Republic, as was the case for Mr Lopez-Garcia and his co-defendants. Yet defense attorneys had seen MDLEA cases in the district come from as far away as the Galapagos Islands in the Pacific Ocean and Sri Lanka in the Indian Ocean.
Given its reach, several defense attorneys raised concerns about the imperial nature of the law's expansive geographic jurisdiction, and the message that sends internationally as well as to their own clients. One defender pointed out the inherent hypocrisy of the United States imposing this practice on other nations as a “superpower,” asking how the U.S. government would react if another powerful nation did this to the United States: “What if China did the same thing and China just started boarding American boats? We would have an issue with that, wouldn't we?” (PR-6). Another condemned the MDLEA as “rampant imperialism—just meddling in international affairs without any regard to law, or international law, or anything like that” (PR-10). This characteristic was not lost on defendants subject to prosecution: Fundamentally, with the MDLEA cases, I think the hardest part is when the U.S. government is out there patrolling off the coast of Colombia and arresting people hundreds of miles away from any U.S. place. The clients have trouble understanding how that's legit. There's righteous questions about why we’re doing that. (PR-11)
On the other hand, one of the prosecutors we interviewed had no qualms about the jurisdictional reach of the MDLEA, saying it was “disrespectful” of those charged to attempt to bring drugs into other countries, noting that drugs are illegal in the defendants’ home countries as well, so they knew they were engaged in crime (PR-18). The other prosecutor described the law as “controversial” but said it “fills a niche, whether it's needed or not, that is hard to combat with other legal tools,” and that it was the best the United States can do to combat the drug trade, particularly in the Caribbean region (PR-17).
As noted previously, one of the standard ways that the Coast Guard establishes jurisdiction over boats on the high seas is through declaring them stateless. In Mr Lopez-Garcia and his co-defendants’ case, jurisdiction via statelessness was achieved simply by the Colombian government not affirmatively claiming the boat's registry. The standard for establishing jurisdiction via statelessness is so lax that defense attorneys we interviewed were skeptical about the validity of the government's claims. The Federal Defender's office had begun investigating whether the calls regarding boats’ registry were even made to the countries claimed by defendants. In particular, given the hostile U.S. relations with Venezuela under Maduro's leadership, several federal defenders challenged the certifications denying registry that U.S. officials had obtained from the unelected Juan Guaido shadow government. As one attorney shared, Juan Guaido was never elected. He doesn’t have access to the registries for fishing vessels in Venezuela or any other official government document for that matter. They can’t certify whether that vessel is actually Venezuelan or not, but prosecutors nonetheless put them forward and judges just accept the sham certifications and deny motions to dismiss. (PR-10)
Defendant pool capacity
The defendant pool capacity is correspondingly vast given the global reach of the MDLEA's jurisdiction. Data amassed by U.S. federal agencies also suggests an expansive defendant pool of potential MDLEA suspects. The Consolidated Counterdrug Database (CCDB) estimated that only 6% of “known drug movements” were intercepted in 2017 (Faller, 2019: 20; McSweeney, 2020). And these enforcement efforts have had no impact on cocaine supply or market price in the United States as measured by government audits (McSweeney et al., 2025). While some of this untapped defendant pool capacity is due to drug trafficking organizations’ (DTOs) ability to adapt to and evade law enforcement tactics (McSweeney, 2020), the vast pool means that MDLEA case production can be ramped up as a matter of policy preference or political whim. Ultimately, those in the MDLEA defendant pool who are most at risk of detention and prosecution are those at the bottom rung of the DTOs—indigent mariners who transport the drugs by sea (McSweeney et al., 2025).
According to interviewees, most MDLEA defendants in Puerto Rico are citizens of the Dominican Republic and Colombia (as were the defendants in the Lopez-Garcia case), with Venezuelans growing more frequent in the face of severe economic collapse in that nation. But again, this district has prosecuted defendants from across Central and South America, the Caribbean region, and from as distant as the Near East. The vastness of the pool is also the product of the extreme poverty and hardship experienced by most defendants in their countries of origin. In that regard, DTOs are able to exploit these defendants’ desperate circumstances to get them to take on the riskiest, most exposed, and lowest-level role in the operation—moving hundreds of kilograms of cocaine across dangerous waters in ill-equipped vessels. Poor fishermen are especially targeted given their ability to navigate in the sea. As one defender explained: If the bottom [of the rung] is the farmer in Colombia pulling out the cocaine leaf, then the fisherman from the Dominican Republic is probably the next rung up. I’ve seen pictures and videos of where my clients come from. Tin roofs, dirt floors. It's a poverty that's even beyond that of what we conceive as poverty in Puerto Rico or in the United States. Whether it's rural or inner city, it's something else. It's third world. I just don’t think—as long as that exists and persists, and these nations are transport hubs for this type of product that is getting consumed on the consumer end of the United States, the boats will keep coming…. Kingpins, at the end of the day, are not on these boats. The people that are on these boats are the most desperate people, and the most expendable people, and the people that stand to gain the least. That's just the reality of the situation. (PR-12)
Because those on the boats are essentially “mules,” who are not integral to the DTOs, they are also expendable and easily replaced if arrested. As such, the supply of defendants is as robust as the DTOs’ drug trade. Indeed, according to one attorney, some DTOs send out a boat with a smaller load of drugs to capture the attention of U.S. patrols, thereby sacrificing the freedom of these couriers, followed by boats with larger loads that make their way through once the first boat is being detained.
Defendants share stories with their attorneys and the court, describing several routes into the boat courier role. Members of the DTOs approach fishermen and others who they know are in financial distress and offer large amounts of cash for a single trip. Sometimes, the actual job is not fully disclosed, as in one defender's ongoing case: They [DTO representatives] know which poor neighborhoods to go to. Especially where there are a lot of fishermen because they know how to drive boats…. They’ll [offer] thousands of dollars, and “all you have to do is drive the boat over, drop some people off, and come back and that's it.” And then he [the defendant] gets to the actual boat and there's drugs and guns. (PR-5)
In this case, the defendant indicated that the DTO representatives at the boat were armed, so he felt he could not back out once he found out he would be transporting drugs.
DTO representatives also reportedly used implicit threats at times to gain compliance from those sought out to transport drugs. A defense attorney categorized this as one of the two common ways their clients end up participating in the boat transport: “All the stories are basically the same. ‘I don’t have any work. They offered me money.’ Or, ‘They didn’t threaten me directly, but they insinuated that, hey, we know where you live…. You have to do this. Here's some cash’” (PR-4).
Charging capacity
Once boat couriers are brought to federal court, they typically face multiple charges, all of which carry a 10-year mandatory minimum. Those caught with drugs at sea can be charged under numerous federal statutes for the same conduct, including several MDLEA statutes for conspiracy and possession with intent to distribute (46:70502, 46: 70503, 46: 40506) and for aiding and abetting in such conspiracies. This was the case with Mr Lopez-Garcia and his co-defendants. Each was charged with both conspiracy and possession with intent to distribute, even though no drugs or drug traces were found on the boat; each of the charges came with a 10-year mandatory minimum. If there's evidence that the boat is headed to the United States, importation and conspiracy to import can be charged. For boats intercepted within territorial waters, the domestic drug trafficking/conspiracy charges can also be filed, providing “full coverage” to ensure multiple routes to conviction, as explained by a prosecutor (PR-17). If the boat's occupants attempted or succeeded in jettisoning or destroying the drugs, they can also be charged with an additional count under MDLEA (§70503(a)(2)) (PR-18).
All defendants on a given boat are typically charged identically; they are all presumed equally culpable for the full amount of drugs seized or suspected. As one defense attorney shared, These indictments are big, like six or seven counts. Because they are charged with the conspiracy, with the possession with intent to distribute, with conspiracy to import, with the importation, and then, with the MDLEA charges. Now we have six, seven charges. All of them are the same—10 years [mandatory minimum]. (PR-9)
The multiple charges are not filed to stack sentences, but rather they offer prosecutors multiple routes to conviction should there be evidentiary issues affecting one or another charge, ensuring prosecutors have significant power to obtain a guilty plea. Consequently, nearly all of the boat defendants end up pleading guilty.
The few who opt to go to trial are generally found guilty and suffer much more punishment in the end as a “trial penalty.” A defense attorney shared, these are really the type of cases where it's very hard to mount a defense because it's the way the drug cases are set up with these minimums and what they’d face in trial. It's just a really big disincentive. The prosecutors, more so than any other player in this scheme, really decides or really wields a lot of power with the charging decisions. (PR-12)
Another attorney described a client who opted to go to trial, against the attorney's advice, because there was an issue with the State Department's certification obtaining consent from another country to prosecute (it listed the wrong name for the boat). Despite this weakness in the prosecution's case, the 60-year-old defendant, who was transporting a relatively small amount of cocaine (60 kg), was convicted at trial and sentenced to 18 years in prison.
Evidentiary capacity
Because of the nature and elements of the charges, especially those alleging conspiracy, the evidentiary bar to conviction is low. In the majority of MDLEA cases, the defendants are out at sea on a lone boat carrying large packages of drugs, so the case is pretty much made by the time they are intercepted. As one defense attorney explained, there's not much you can do. Once you get the case, you know, it's guys on a boat with drugs. Those are the facts. Right? You can’t erase those facts. The only area of litigation is jurisdiction, maybe quantity. Sometimes, they find a boat without any drugs, and then, they find drugs somewhere in the water. So I can litigate that. But otherwise, there's not much you can do but negotiate. So that means it's like dead on arrival… As a lawyer, you want to fight, you want to litigate. But, here, it's not much you can do but look for a good deal for your client. (PR-6)
Moreover, given the government's ease in proving guilt via the evidentiary capacity inherent in these cases, the district's U.S. Attorney instituted a policy that no deals were offered to defendants for pleading guilty, so they typically had to plead straight-up to one or more of the charges. As one defense attorney put it bluntly, “the government's not usually willing to offer [lowered guideline sentences] to us. Because like I said, they don’t have to fucking do anything for us” (PR-5). A prosecutor defended this practice as providing the same treatment for all defendants, since they tend to be similarly situated, and letting the drug weight be the sentence determinant. The only exceptions to this policy were when a defendant agreed to cooperate and provide information to the government, or in the rare case that had evidentiary weaknesses.
Regarding cooperation, it is through the constellation of coercive capacities of federal drug laws, including evidentiary capacity, that prosecutors can push defendants to take on the potentially deadly risk of becoming an informant to obtain a lesser punishment. As one defense attorney explained, “The only good deals—two good deals I’m thinking about right now—are the ones who are cooperating. They had to cooperate a lot” (PR-6). In the MDLEA context, this negotiating tactic was used by prosecutors to further accrue evidentiary power, including to pursue suspects in foreign nations beyond those arrested on boats.
Most defendants, however, deemed becoming an informant too dangerous, especially in light of demands made by the government: [Defendants] have to be willing to do everything. They have to be willing to talk to the agents in the government as many times as they want…. Be honest about how all the meetings went and the planning before they got on the boat from wherever they came from. Be ready to testify against their co-defendants. And the problem with that is they’re going to go back to the same community that they were living in with the people that are on the boat with them. And if they’re known as an informant or a snitch, of course when they get home, everyone's going to know. And they have nowhere else to go. It's not like in the United States, you can get witness protection maybe. Or you can find a new place, reinvent your life from Detroit to Puerto Rico. (PR-1)
In cases that were evidentiarily weak, prosecutors typically still prevailed. Drugs found floating in the water anywhere in the broad vicinity are presumed to be jettisoned from interdicted boats, as was the case for Mr Lopez-Garcia and his co-defendants who were charged based on drugs found 1-2 miles from their boat. Challenging that presumption at trial was generally not successful. Several defense attorneys told cautionary tales of defendants going to trial in such cases, where they were nonetheless found guilty. Even when no drugs are found on the boat or in the surrounding water—a substantial hole in the prosecutor's case—cases are typically resolved with guilty pleas due to the risks posed with going to trial. These rare kinds of cases, though, could generate meaningful plea offers from the government. A defense attorney described one such case where the government threatened to put on questionable incriminating evidence at trial, then offered a substantial sentence discount to entice a guilty plea from three Dominican defendants who were interdicted in a small wooden boat out at sea: When they got stopped by the agents, there were no drugs on the boat and they didn’t find any that had been jettisoned. So, they [the government] had no way of determining that there was any drugs or what the weight would be. They just used ion scans. There was a positive ion scan on [the defendants’] hands and on the surfaces of the boat. Based on that, they charged them with a 10-year mandatory minimum even though they couldn’t tell how much [drug weight]. They had no drugs. They had no way of knowing how much drugs they had…. What they were going to do in trial was say that from the [surveillance] plane, they saw the clients throw one of the motors or one of the engines off the boat. They sunk it. They said that they could notice something was tied to that engine. So, basically, making the argument that those were the drugs, and so that they would sink they tied them around the engine because otherwise they would’ve floated. So, that's how they sunk it. Based on their estimation, it would have been like 100 kilos [but they had] no video. Defendants were offered 46 months after being in custody for 2 years awaiting trial—[they] took it so [they] could get out and go home. (PR-10)
Punishment capacity
Looming over all of these cases is the extreme punishment capacity that federal drug laws, including MDLEA, possess. This goes to both statutory features of the law, and the attendant sentencing guidelines provisions that determine punishment recommendations, most notably drug weight. The biggest punitive “hammer” is the 10-year mandatory minimum, which until 2018 was inescapable for those convicted under MDLEA without providing cooperation. A provision of the Fair Sentencing Act of 2018 extended the “safety valve” option to MDLEA defendants, which allows them to be sentenced below the mandatory minimum if they have minimal criminal history (Robertson, 2021). Almost all MDLEA defendants in Puerto Rico qualify, yet many are reluctant to take advantage of this option.
Under the safety valve, defendants still must truthfully disclose the facts surrounding their crime of conviction to the government, which gives some defendants pause in seeking a below-minimum sentence. As one defender shared, a lot of clients don’t want to do it. Because they think it's cooperation, you know, snitches get stitches attitude. That's pretty big, especially here [in Puerto Rico]. And a lot of them will soak up the 10 years…. I get their position. Sometimes, they are even threatened. And so they don’t want to do the safety valve. (PR-6)
The prosecutors concurred, one sharing that while the safety valve does not require as much disclosure as cooperation, many defendants opt not to do it because they “don’t want to be a snitch” (PR-18). The other called it “a legitimate prisoner's dilemma” for MDLEA defendants in the district, given that it is equated with cooperating (PR-17). Thus, while the safety valve, on the books, provides defendants with some hedge against the enormous punitive capacity of federal drug laws, it was not fully utilized due to the perceived risks associated with it.
And even in cases where judges have the discretion to go below the 10-year mandatory minimum at sentencing (i.e., via the safety valve or cooperation), the sentencing guidelines in the MDLEA cases are extremely high, given the drug weight involved in these cases. The U.S. Attorney in this district refused to deal on the drug weight, and at the time of our interviews, the minimum recommended guideline sentences for defendants with no criminal history was over 15 years for those transporting 150–450 kg of cocaine, and nearly 20 years for those with more than 450 kg on board. Several defense attorneys described their frustration with these aspects of the guidelines. One shared: The frustrating part as a defender obviously is that their [MDLEA defendants’] sophistication and knowledge within the broader drug conspiracies oftentimes is very minimal…. They really don’t know much, but they have all this weight so they’re getting punished disproportionate to their real sophistication and their knowledge. We have a U.S. attorney's office in this district that, for whatever reason, doesn’t negotiate drug weight when it comes to these maritime cases…. So not only do they get hit with the full weight of the narcotics that are seized, but then they get an enhancement for being a, quote unquote, captain of a vessel, which is something that I find frustrating because I don’t think that's the way the enhancement was designed to be implemented. (PR-15)
Thus, while pleading guilty reduces the guidelines by two levels for “acceptance of responsibility,” typically one of the defendants in each case also gets tagged as the “captain” of the boat. Those defendants get two levels added to their guideline range, even though the “captain” designation may only signify that they were caught driving the boat or were the first to speak upon interdiction. A defense attorney decried these “kingpin” sentences, including the captain enhancement, since they do not capture the reality of these defendants’ roles: for me, it is ridiculous that a courier can get a sentence higher than the kingpin that hasn’t been caught, you know, or that one of the occupants of the boat gets an enhancement because he was driving the boat at the moment of the arrest … [when] they all take turns driving it, so it's not like there's captains. It's not a cruise, you know. (PR-13)
At the same time, while there is a “mitigated role” provision in the guidelines that would reduce the recommended sentence, it was not applied in these cases despite the typical MDLEA defendants being the least culpable in the overall conspiracy. Prosecutors can and did argue that the drug amounts involved in these cases negate the applicability of this reduction, and most judges do not apply it despite defense efforts to make the case for it (PR-7; PR-19).
Detention and pretrial conditions also provided substantial punishment capacity, ultimately moving defendants toward guilty pleas. While those being brought to the District of Puerto Rico are typically held on Coast Guard cutters for shorter periods than those going to some other districts (McSweeney et al., 2025), some defense attorneys described those detention conditions at sea as the start of a process that wears down defendants. As one described, some of our clients spend two weeks on these Coast Guard cutters, bobbing up and down, not a lot of food and water. They get here just like sick and skinny and beat up. Shackled to a bar on a boat like that for two weeks while the boat just runs around. It's inhumane … the way that they do it. (PR-1)
Once they arrive in Puerto Rico, MDLEA defendants are always held in detention, given that federal drug trafficking crimes come with a “presumption” for detention, coupled with the fact that almost all are foreign nationals who will be subject to deportation after conviction and sentence (PR-17). The typical MDLEA case takes about 2 years from initial charges to sentencing, so most spend lengthy periods in pretrial detention. Moreover, due to overcrowding at the main detention center in San Juan, many MDLEA defendants are held in a facility in Guayama, on the south side of the island, where they are not given access to phones to call their home countries: “[T]hey do not give them [noncitizens] calls to their family…. So now they are desperate, in Guayama. They can be years in Guayama. That plays a lot … in their decision [to plead]” (PR-9). Multiple defenders shared stories about their MDLEA clients succumbing to the pressure of lengthy detention under challenging conditions, coupled with the financial pressure that makes them want to just serve their time and go home to support their families. For Mr Lopez-Garcia and his co-defendants, the detention time was in the heart of the COVID-19 lockdown, making the conditions especially stressful.
Getting around the Davila-Reyes roadblock
The Davila-Reyes case impacted just a subset of MDLEA cases in Puerto Rico, but at least three capacities of criminal law—jurisdiction, charging, and punishment—provided escape hatches to prosecutors handling these cases during the period of flux. Given that Davila-Reyes specifically addressed jurisdiction, this should have been the capacity that was most constrained during the appellate litigation period. It, however, did not meaningfully impact even the cases most on point, where the claimed nations neither confirmed nor denied the boat's registry. According to one prosecutor, the case had not impacted any of her cases, in part due to the ways around questionable jurisdiction. Several interviewees mentioned that the cases most directly affected by Davila-Reyes could be, and were, sent to districts in different appellate circuits for prosecution, since the case would have no impact outside of the 1st Circuit. This option was possible due to the jurisdictional freedom afforded by the MDLEA law. As one attorney explained, this is one of those crimes that can basically be prosecuted anywhere. There's no jurisdictional component in terms of it occurred in Puerto Rico so it has to be prosecuted here … it's just a crime against the United States. And you can do it anywhere you want. Technically, even if it doesn’t have a beach. Go to Nebraska and [prosecute] in Nebraska. (PR-4)
Several defense attorneys also described how in some cases, the arresting officers made what were perceived as questionable tactics to get to a statelessness determination, by saying the occupants did not claim any nationality. Thus, the jurisdictional requirement to show statelessness was made via this alternate legal option under MDLEA that was not impacted by the Davila-Reyes case. As one attorney shared, what they are doing now is not calling the country. They are playing with the law—saying—“I asked [the suspects] whether they know the origin of this boat and they are saying that they don’t know.” So that goes to the people onboard fail[ing] to make a claim of nationality for the vessel. Now they [prosecutors] are going with this part of the law to have jurisdiction. (PR-9)
An additional way that law enforcement ensured jurisdiction in some cases was to simply surveil suspect boats until they entered U.S. territorial waters, thereby establishing territorial jurisdiction and then interdicting, which according to one attorney, was a practice instituted after the 2022 Davila-Reyes ruling (PR-13).
Given the charging capacity of federal criminal laws pertaining to drug trafficking, prosecutors in Puerto Rico also had charging options to get around the jurisdictional limitations imposed by the Davila-Reyes case. Several attorneys mentioned that the government was adding importation charges, as well as conspiracy with intent to distribute charges, in cases that were potentially affected by Davila-Reyes. As one attorney shared, “when Davila-Reyes happened, they started charging the cases differently…. Additionally, but alternatively: conspiracy to import, which is nada, has nothing to do with the high seas. Importation. So, like principal offenses, not MDLEA. And jettisoning” (PR-1). Thus, the practice of charging “full coverage” of laws that capture drug trafficking served to keep even jurisdictionally questionable cases moving forward.
Finally, because of the coercive power inherent in federal drug laws’ enormous punishment capacity, even the MDLEA defendants with legally on-point circumstances nonetheless agreed to plead guilty and waive the opportunity to see through any motions on the Davila-Reyes jurisdictional issue. In this subset of cases, prosecutors were given authorization to make modest plea discounts to facilitate getting these cases resolved. And it worked. A defense attorney shared that two of his clients had cases directly impacted by Davila-Reyes with motions pending to dismiss. The prosecutor's offer brought the base sentencing guideline minimum down from 235 months to 188 months, which got them to plead: One prosecutor who is assigned most of these cases told me that his office recently approved, you know, an exception to the policy…. In exchange for us to withdraw the motion to dismiss, they are then giving the minus-two level. So, instead of starting at 38 [guideline offense level], they start at 36. I have two cases. I spoke to both of them recently. And they both said, “Hell, yeah. Hell, yes. I don’t care about the motion to dismiss. I just want to go home as soon as possible. I just want to go to a prison, you know, take advantage of the courses that they have there and work—whatever—be able to talk to my family, send them the little that we are earning here, try to send something to them, and just get out.” So both of them said yes. (PR-9)
Even those affected cases that were held in abeyance awaiting sentencing, where no discount was offered, defendants were sometimes willing to waive any chance of dismissal just to get out of detention, and move toward eventual post-sentence deportation. An attorney said his client in that situation wanted to waive his rights and “rush sentencing because he is desperate to get out of Guayama [the detention facility] and wants to go to another facility to call his family. He wants to waive his rights because of this pressure” (PR-21).
Mr Lopez-Garcia and his co-defendants followed exactly this pattern. The three men were charged in Puerto Rico's federal court in June 2020. The case proceeded slowly over the next 18 months due to COVID and because all three defendants went through a series of defense attorneys. During that period, Mr Lopez-Garcia filed numerous motions challenging various aspects of the case, including the jurisdiction issue. In November 2021, one of the two co-defendants decided to plead guilty. Before his March 2022 sentencing, however, the case was held in abeyance due to the Davila-Reyes (2022) decision. Eventually, though, all three men gave up the fight, pleaded guilty, and were sentenced to federal prison, months before the final appellate decision in Davila-Reyes.
Conclusion
We delineated criminal law's capacities to illustrate the critical role of formal law as a dynamic tool in the production of state punishment. By explicating the distinct features of criminal legal capacity, we propose a more proximate set of analytic tools to understand both punitive trends and shortfalls in reforms (i.e., Beckett and Beach, 2021). When the particulars of law are incorporated into analyses of penalty, the actual mechanisms, processes, and actions that drive state punishment outcomes become clearer. Our findings specifically demonstrate how these five capacities interact and complement each other, offering prosecutors and courts myriad avenues to obtain convictions and impose draconian punishment, even in the face of legal roadblocks.
The particular case of MDLEA also opens up new lines of theoretical and empirical inquiry, especially regarding the U.S. role in global criminal-legal governance. What does the MDLEA itself and court decisions like Davila-Reyes mean for the U.S. role as a superpower legislating near-limitless jurisdiction, and how might that inform carceral territoriality studies (Gacek, 2022)? As we noted, the appellate court in U.S. v. Davila-Reyes (2023) affirmed, and even applauded MDLEA's jurisdictional expansiveness, demonstrating how Congress and courts work together to expand the reach of U.S. criminal law. This jurisdictional capacity, in tandem with charging and evidentiary capacities, also facilitates law enforcement and prosecution, without regard to rights or protections, including those offered in international law, another area ripe for further inquiry. Notably, this aspect of U.S. law's capaciousness and tendency to overextend itself is not limited to criminal law. Puerto Rico itself, as a jurisdiction, was infamously labeled “foreign in a domestic sense” (Downes v. Bidwell, 1901) in order to claim that the island was owned by the United States, but that the constitution was not applicable in conferring rights to Puerto Ricans (Jiménez, 2024).
Further inquiry into the lived experiences of those subjected to MDLEA's imperial reach is also warranted. MDLEA's jurisdictional capacity facilitates a global defendant pool capacity, almost completely composed of those from the Global South with exceptionally precarious life conditions (McSweeney et al., 2025). As we illustrated, the road to their status as defendants in U.S. courts begins with their vulnerability to extreme global economic inequality, which is then exploited by DTOs. That vulnerability continues via the MDLEA's expansive jurisdiction, allowing for their removal to the United States for prosecution. Once detained and charged, the coercive effects of pretrial confinement are exacerbated by these defendants’ lack of ties to the United States and enforced alienation from their families, pushing them to waive their rights and plead guilty. Yet despite their vulnerability, they are met with little sympathy in U.S. courts. No-plea bargaining policies, mandatory minimum statutes, and harsh sentencing guidelines leave little room for discretionary grace from judges or probation officers, even if they want to extend it.
The MDLEA relies upon and emblematizes criminal law's expansive capacity. But its capaciousness leaves open questions about the stated and realized objectives of such a punitive and far-reaching law. As a prosecutor told us, “I guess the question is, is it a) necessary and b) effective…. Are we really getting a benefit from society to put a Venezuelan man in U.S. prison for 10 years as opposed to 2 years?” (PR-17). To that point, a generative area for further study is how and why imperialistic practices like those embodied in MDLEA enforcement get rhetorically justified and enabled as an effective weapon against drug trafficking when little evidence supports that claim (Corva, 2008; McSweeney et al., 2025). Future research might also inquire how the multi-agency law enforcement apparatus that underpins MDLEA has expanded its domain.
Ultimately, legal actors are both constrained and empowered by law in ways that take many forms, including as a function of its formal dictates and capacities. At present, as the United States grapples with the stubbornly high imprisonment rates after the rise of mass incarceration, formal law's role in penalty is especially important to confront. Reform efforts can be circumvented to varying degrees by strategic legal actors who can rely on myriad criminal legal capacities to maintain punishment norms (Beckett and Beach, 2021).
Under the current federal administration, we must anticipate that those capacities will be exploited to the fullest punitive extent possible to power a new “war on crime,” particularly against marginalized populations, through the aggressive use of laws like MDLEA (i.e., Lynch, 2023). Indeed, the early months of this administration have repeatedly tested legal limits to greatly expand its capacity to detain, punish, and expel people without even the thin veil of defendant rights that would come with criminal prosecutions. 5 As the Trump 2.0 criminal legal machinery gears up with the appointment of new U.S. Attorneys across the country, we should anticipate even more penal extremes that extend beyond our borders.
Footnotes
Funding
The authors received no financial support for the research, authorship, and/or publication of this article.
Declaration of conflicting interests
The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.