Oct. 13 (UPI) — U.S. Supreme Court Justices Sonia Sotomayor and Neil Gorsuch together called out “constitutional absurdity” in the case of a Mexican immigrant charged twice with being “found in” the United States — the second time after he was specifically told to remain in the country.
While the high court did not take up the case of Jesus Herrera-Salazar on Tuesday, Sotomayor and Gorsuch — appointed by Presidents Barack Obama and Donald Trump respectively — said they felt the need to highlight the case.
Herrara-Salazar, a Mexican national, was indicted in 2020 of being found in the United States after being removed. He pleaded guilty and served his prison sentence.
After his sentence, while required to stay in the United States under supervised release, Herrara-Salazar was arrested again in Oklahoma, charged with the same crime and convicted of illegal reentry again.
He served another prison sentence and was deported in 2024, court documents show.
While Sotomayor agreed that the court did not need to take up Herrera-Salazar’s petition this week, as he has already been removed from the country, she said she felt the need to “underscore the serious constitutional problems that plague the government’s treatment” of him.
Sotomayor said the second prosecution was “difficult to square” with the double jeopardy protections of the U.S. Constitution. That clause, part of the Fifth Amendment, protects people from being prosecuted twice for the same crime.
The 10th U.S. Circuit Court of Appeals, to which Herrera-Salazar had previously appealed, said the clause didn’t apply and that both of his convictions were for different offenses.
Sotomayor, joined in her opinion by Gorsuch, did not agree.
“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,” Sotomayor wrote.
By the appeals court’s logic, she wrote, the government could have charged Herrera-Salazar with a new crime for every day he remained in prison while serving his sentence.
Should such a case arise again, Sotomayor and Gorsuch noted, courts should “avoid the constitutional absurdity that occurred here and give the Double Jeopardy Clause its full weight and meaning.”