Supreme Court Justices Sonia Sotomayor and Neil Gorsuch teamed up on Tuesday to criticize the “constitutional absurdity” of the prosecution of Jesus Herrera-Salazar, saying the Mexican national’s two arrests raise questions about double jeopardy.
Sotomayor, a liberal, and Gorsuch, a conservative, released a joint statement with the high court’s decision not to hear Herrera-Salazar’s appeal after the federal government indicted him twice for allegedly illegally entering the country.
“Should circumstances like these arise again, I encourage courts to avoid the constitutional absurdity that occurred here and give the Double Jeopardy Clause its full weight and meaning,” the justices wrote in the statement.
Herrera-Salazar was indicted in 2020 and pleaded guilty to being “found in” the United States. He was released under supervision after serving 15 months in prison and was ordered to remain in Oklahoma. While on supervised release, Herrera-Salazar was arrested during a traffic stop and indicted on the same charges as his 2020 arrest. He was sentenced to 21 months in prison, which he served, and was later deported.
After having served both prison sentences and being deported back to Mexico, Herrera-Salazar filed a lawsuit alleging the second indictment violated the double jeopardy clause, which was rejected by a lower court. He then appealed to the Supreme Court.
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“From the moment he was released from custody after serving his first term of imprisonment, Herrera-Salazar was presented with a Hobson’s choice,” the justices wrote. “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. While Herrera-Salazar was caught in this bind, the Government prosecuted and punished him yet again for being ‘found in’ the United States, even though all agree he was forbidden to leave the United States.”
Sotomayor penned the statement and Gorsuch joined. The pair noted that the high court declined to hear Herrera-Salazar’s appeal because he had already been removed from the country but said they were writing “to underscore the serious constitutional problems that plague the Government’s treatment of Herrera-Salazar.”