Sonia Sotomayor and Neil Gorsuch used the Supreme Court’s latest order list to take aim at the government’s second prosecution of Jesus Herrera-Salazar, calling the case a constitutional absurdity. The court declined to review it, but the two justices said the ruling below left a person in Herrera-Salazar’s position exposed to repeated found-in charges that could go on without end.
The statement matters because it was not a routine note buried in the background. It came as the justices were acting on pending petitions and marked the second week in a row that Sotomayor spoke publicly from the order list at the start of the new term. Last week, on the first day of the term, she issued a solo statement in a death penalty case, making this a quick succession of public warnings from the bench.
Herrera-Salazar’s case followed a hard line from the government. After he was removed from the United States, he was charged with being found in the United States, pleaded guilty and served prison time. While on supervised release, he was ordered not to leave the Eastern District of Oklahoma. He was later pulled over in a traffic stop and charged with the same crime again, then convicted by a jury and sentenced to new terms of imprisonment and supervised release.
That sequence is what Sotomayor said was difficult to square with the Constitution’s double jeopardy protections. She wrote that under the appeals court’s rationale, a person in Herrera-Salazar’s shoes could face repeated, limitless found-in charges without offending the Constitution, and even a new crime for each day he was found in prison while serving the first sentence. Her point was direct: if that theory stands, the government could keep layering on punishment from the same basic conduct.
Sotomayor said she hoped the facts were anomalous and noted that Herrera-Salazar had since been removed from the United States, but she joined Gorsuch in urging courts to avoid the constitutional absurdity if a similar case appears again. The Supreme Court’s refusal to take the case leaves the lower court result in place, while the justices’ statement signals that at least two members of the court see a serious problem with how repeated found-in prosecutions can work when a person is already under sentence.
