Supreme Court Justices Sonia Sotomayor and Neil Gorsuch joined in a rare statement to warn of a constitutional problem arising from prosecutions of Jesus Herrera-Salazar.
The justices registered their concern on the court’s order list after the Court declined review because the case had become moot when the petitioner was removed from the US.
Herrera-Salazar was indicted for being “found in” the United States after a prior removal and pleaded guilty to that charge, according to the record the justices described.
He served a prison sentence and was then placed on supervised release with a condition barring him from leaving the Eastern District of Oklahoma.
While under those restrictions he was stopped for a traffic violation, charged again with being “found in” the United States, convicted by a jury, and sentenced to new imprisonment and supervised release.
Sotomayor said that sequence presented a difficult double jeopardy question because Herrera-Salazar did not leave the country and reenter between prosecutions.
The Tenth Circuit rejected his double jeopardy claim, treating the two prosecutions as separate offenses under the immigration statute, the justices noted.
The government had argued the prosecutions were separate because he was “found in” the United States in 2020 and later “found in” Oklahoma, and it cautioned courts against making aliens who remain in the country effectively immune from punishment.
Writing for herself and joined by Gorsuch, Sotomayor called that logic an “absurd” result that could permit limitless repeat prosecutions.
She warned the government’s position could, by its reasoning, allow a charge for each day someone was “found in” custody while serving a sentence.
Implications And Judicial Guidance
The justices cited Brown v. Ohio to emphasize that prosecutors cannot evade constitutional protections by slicing a single crime into multiple parts, the statement said.
Sotomayor and Gorsuch agreed with the Court’s procedural decision not to hear the case but urged lower courts to avoid repeating what they called the constitutional absurdity in Herrera-Salazar’s treatment.
The pair hoped the facts were anomalous but instructed that when similar circumstances arise, courts should give the Double Jeopardy Clause its full weight and meaning.
The statement follows an earlier solo note by Sotomayor about a separate death penalty matter, illustrating her willingness to flag cases she believes raise urgent constitutional issues even when the Court declines review.
