Sonia Sotomayor, joined by Neil Gorsuch, used the court’s latest order list to fault the repeat prosecution of Jesus Herrera-Salazar as a constitutional absurdity. The justices did not grant review, but Sotomayor said the case still raised serious constitutional problems and should not be repeated if a similar case comes before the court again.
Herrera-Salazar’s second charge
Herrera-Salazar had already pleaded guilty, served prison time and was ordered not to leave the Eastern District of Oklahoma while on supervised release before the later traffic stop that led to a second charge for being “found in” the United States after removal. A jury convicted him again and imposed new terms of imprisonment and supervised release.
Sotomayor wrote, “Because I hope the facts of this case are anomalous and because Herrera-Salazar has since been removed from the United States, I concur in the Court’s decision not to grant review in this case,” while adding that she wanted “to underscore the serious constitutional problems that plague the Government’s treatment of Herrera-Salazar.”
Double Jeopardy Clause
She said the second prosecution was hard to square with the Constitution’s double jeopardy protections. In her view, the appeals court’s reasoning could let prosecutors bring repeated, limitless “found in” charges, and even treat each day Herrera-Salazar was found in prison on the first sentence as a new crime.
That is why Sotomayor and Gorsuch urged courts to avoid “the constitutional absurdity that occurred here and give the Double Jeopardy Clause its full weight and meaning.” The statement marked the second week in a row that Sotomayor spoke out on the order list as the Supreme Court started its new term, after a solo statement in a death penalty case on the first day of the term last week.
The court’s refusal to hear the case leaves the conviction in place, but the joint statement puts a warning on the record for future cases built on the same theory. If another repeated “found in” prosecution reaches the court, the justices’ language gives lower courts a clear signal that the constitutional issue should be handled narrowly.
