Sotomayor and Gorsuch Criticize Prosecution of Immigrant as 'Constitutional Absurdity'

Supreme Court Justices Sonia Sotomayor and Neil Gorsuch have jointly criticized the prosecution of a Mexican national, Jesus Herrera-Salazar, describing it as a "constitutional absurdity" that raises serious legal questions. Their remarks came as the Supreme Court declined to review Herrera-Salazar's case.

Herrera-Salazar was first arrested in 2020 and pleaded guilty to illegally re-entering the United States after being deported. He served a prison sentence and was later placed on supervised release, with a requirement to remain in the U.S. However, he was subsequently arrested following a traffic stop in Oklahoma and indicted and convicted again for the same offense.

In a joint statement, Justices Sotomayor and Gorsuch noted that Herrera-Salazar was in a difficult position. "In the Government’s eyes, whether Herrera-Salazar remained in the Eastern District of Oklahoma or left the United States [after his first release from prison], he would be breaking the law," they wrote. "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."

The justices expressed concern that Herrera-Salazar faced a "Hobson's choice," where any action he took would result in legal violation. They argued that the Double Jeopardy Clause of the Fifth Amendment, which protects individuals from being tried twice for the same crime, should have been more fully considered.

"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," Sotomayor wrote in an opinion joined by Gorsuch. They asserted that their precedents and the clause's logic suggest the government should not be allowed to charge a defendant with the same continuous crime a second time simply by focusing on a different time marker.

Herrera-Salazar was ultimately deported in 2024. His attorneys had argued that his second prosecution violated his Fifth Amendment rights. The Denver-based 10th U.S. Circuit Court of Appeals had previously rejected this argument, ruling that the two convictions constituted separate offenses.

The Supreme Court's decision not to hear the case means the lower court's ruling stands. However, Sotomayor and Gorsuch made their disagreement clear, hoping that the circumstances of Herrera-Salazar's case are not repeated.