The Supreme Court declined to take up Jesus Herrera-Salazar’s immigration case on Tuesday, but two justices used the order list to blast the way the government prosecuted him a second time. Sonia Sotomayor, joined by Neil Gorsuch, said the repeat case raised serious constitutional problems and should have never unfolded that way.
The reason the case is drawing attention now is simple: this was not a routine denial. Sotomayor and Gorsuch both put their names on a statement criticizing the prosecution of a man who had already been punished once for being found in the United States after removal. In the statement, Sotomayor said she agreed to let the Court deny review only because she hoped the facts were unusual and because Herrera-Salazar had since been removed from the United States.
Herrera-Salazar’s path through the system is what makes the double jeopardy fight so striking. After his first charge, he pleaded guilty and served prison time. He was then ordered not to leave the Eastern District of Oklahoma while on supervised release. Later, he was pulled over in a traffic stop and charged again with the same crime. A jury convicted him a second time, and he received new prison and supervised release terms.
Sotomayor said that sequence was difficult to square with the Constitution’s protection against double jeopardy. She argued that the appeals court’s reasoning would permit repeated, limitless found-in charges without violating the Constitution, and said the government could have treated every day Herrera-Salazar spent in prison on the first sentence as a separate charge. She called that result absurd.
The Court’s decision not to hear the case leaves the conviction in place, but the statement from two justices is hard to ignore. Sotomayor and Gorsuch said courts should avoid the constitutional absurdity that occurred here and give the Double Jeopardy Clause its full weight and meaning if a similar case reaches them again. That makes the denial less a quiet ending than a warning about how far the government can go when it turns one immigration charge into another.
This was also the second week in a row that Sotomayor spoke out on the order list as the justices began their new term. Last week, on the first day of the term, she issued a solo statement in a death penalty case. The pattern suggests she is using the Court’s routine petition list to flag cases she sees as especially troubling, even when she cannot muster enough votes to change the result.
For Herrera-Salazar, the practical result is unchanged. For the Court, the question is now whether the next case like this will force a harder line on repeated found-in prosecutions. The warning has been written. The unresolved issue is whether any lower court will take it seriously before another defendant is sentenced twice for what looks like one continuing offense.
