Justice Neil Gorsuch and Justice Sonia Sotomayor (Erin Schaff-Pool/Getty Images).
U.S. Supreme Court Justice Sonia Sotomayor made a statement regarding the denial of certiorari on Tuesday in an "anomalous" immigration case with double jeopardy implications. The statement was joined by Justice Neil Gorsuch.
In the case of Herrera-Salazar v. United States, the petitioner was indicted in 2020 on a charge of being "found" in the country after previously being deported. He pleaded guilty and served time in prison.
Then, in 2024, almost the exact same thing happened again.
"While on supervised release, during which he was expressly instructed not to leave the Eastern District of Oklahoma, Herrera-Salazar was pulled over in a traffic stop in Heavener, Oklahoma, and once again arrested and indicted," Sotomayor explains. "He was convicted by a jury and sentenced to new terms of imprisonment and supervised release."
Since that second run through the system on nearly identical facts, Herrera-Salazar has been deported.
The petitioner's removal from the country convinced Sotomayor and Gorsuch to vote with their peers and deny a full hearing of his case, but they wrote separately "to underscore the serious constitutional problems that plague the Government's treatment of Herrera-Salazar."
At a basic level, Sotomayor and Gorsuch question whether the statute used in the case could be employed the way it was.
"[I] is not clear that the statutory language 'found in … the United States' can fairly be read to encompass a person who has already been found by the Government and compelled to remain in the United States under Government supervision," the statement reads.
But taking the statutory soundness for granted, even in the case of someone forced to be somewhere by authorities and then prosecuted by those same authorities for following the law, the justices say this case likely violates the Constitution.
"As our precedents explain, 'the Double Jeopardy Clause protects against a second prosecution for the same offense after conviction,'" the statement goes on. "The question in a case like this is what constitutes the 'same offense.'"
As the nation's final court of appeal, the U.S. Supreme Court was specifically asked to reconsider this argument — which was rejected by the U.S. Court of Appeals for the 10th Circuit on the grounds that the federal reentry law used to prosecute Herrera-Salazar "did not require a separate predicate reentry for each violation of the statute."
But Sotomayor and Gorsuch find this result unsatisfying.
"By those lights, with a single unlawful reentry supplying the necessary statutory predicate, a person in Herrera-Salazar's shoes can be subjected to repeated, limitless 'found in' charges without offending the Constitution," the statement continues.
The justices then quote precedent from a landmark case in which the nation's high court ruled a defendant cannot be prosecuted for a greater offense after already being prosecuted for a lesser offense.
The quote reads, in full:
The Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units.
"Yet that is just what the Government did here," the statement goes on. "Herrera-Salazar was convicted of 'a crime which was continuous, extending over the whole period' he was present in the United States after his previous removal and reentry. That continuous crime plainly could not have concluded until the Government allowed Herrera-Salazar to leave the country."
To hear the justices tell it, the government must have been trying to parcel out and punish "different parts of" the petitioner's "compelled continuous presence in the United States."
Sotomayor and Gorsuch reject this understanding.
"When a defendant is convicted of a crime that involves continuous, uninterrupted conduct, our precedents and the logic of the Double Jeopardy Clause strongly suggest that the Government is barred from charging that defendant with the same continuous crime for a second time simply by focusing on a different time marker," the statement continues. "That makes sense."
Otherwise, the justices say, indictments might cover each month or "every week" of a continuous crime — instead of each discrete act.
"There is even more force to this double jeopardy objection where the Government itself effectively forbids the defendant to cease his unlawful conduct," the statement goes on. "Here, indeed, the Government might have charged Herrera-Salazar with a separate violation of [the federal reentry law] for each day that he was 'found in' prison while serving his sentence for the first conviction. Absurd as that seems, it is a logical outgrowth."
The statement ends with the justices referring to Herrera-Salazar's options after his first arrest as a "Hobson's choice."
"In the Government's eyes, whether Herrera-Salazar remained in the Eastern District of Oklahoma or left the United States, he would be breaking the law," Sotomayor notes. "Should circumstances like these arise again, I encourage courts to avoid the constitutional absurdity that occurred here."