Sonia Sotomayor and Neil Gorsuch used the Sotomayor Gorsuch immigration case to call the prosecution of Jesus Herrera-Salazar a “constitutional absurdity” on Tuesday. The Supreme Court declined to review his case on the court’s latest order list, even as the two justices said the result raised serious constitutional problems.
Herrera-Salazar had been charged with being found in the United States after removal, pleaded guilty, and served prison time before he was ordered not to leave the Eastern District of Oklahoma while on supervised release. He was later pulled over in a traffic stop, charged with the same crime again, convicted by a jury, and given new terms of imprisonment and supervised release.
Order list at the new term
The statement appeared on the court’s latest order list at the start of the new term. Sotomayor wrote that she hoped the facts were anomalous and noted that Herrera-Salazar had since been removed from the United States. She said she wrote “to underscore the serious constitutional problems that plague the Government’s treatment of Herrera-Salazar.”
Her statement said the second prosecution was difficult to square with the Constitution’s double jeopardy protections. She warned that under the appeals court’s rationale, “a person in Herrera-Salazar’s shoes can be subjected to repeated, limitless ‘found in’ charges without offending the Constitution.”
Double Jeopardy Clause
Sotomayor also said the government could have charged Herrera-Salazar “for each day that he was ‘found in’ prison while serving his sentence for the first conviction,” and said that outcome seemed “absurd.” In the joint statement, Sotomayor and Gorsuch said courts should “avoid the constitutional absurdity that occurred here and give the Double Jeopardy Clause its full weight and meaning.”
The Supreme Court’s decision not to grant review leaves that warning in place without changing the result in Herrera-Salazar’s case. For defendants facing repeated “found in” prosecutions, the justices’ statement is the clearest signal in the record that the Constitution still sets a limit on how far those charges can be stretched.
