Sotomayor and Gorsuch Challenge Double Jeopardy Ruling

A dispute over repeated federal prosecutions of a Mexican national has prompted an unusual alliance between Supreme Court Justices Sonia Sotomayor and Neil Gorsuch. On Tuesday, October 13, 2026, the liberal and conservative justices raised constitutional concerns about the government's treatment of Jesus Herrera-Salazar, whose convictions for illegal reentry followed separate encounters with immigration authorities.

The Supreme Court declined to hear Herrera-Salazar v. United States, agreeing with the lower court's decision to leave his conviction in place. However, Sotomayor issued a statement joined by Gorsuch, warning that prosecuting someone repeatedly for the same continuing offense could undermine the Constitution's Double Jeopardy Clause.

Herrera-Salazar was first charged in 2020 after authorities found him in Texas following an earlier deportation. He pleaded guilty and served a prison sentence. Afterward, he remained under supervised release and was instructed not to leave the Eastern District of Oklahoma.

According to Sotomayor's statement, authorities arrested Herrera-Salazar again during a traffic stop in Heavener, Oklahoma, in 2024. He was indicted, convicted by a jury and sentenced to additional imprisonment and supervised release. He has since been deported, a development that contributed to the justices' decision not to grant review.

Sotomayor and Gorsuch questioned whether the federal statute governing illegal reentry could properly apply to someone whose continued presence in the country was being controlled by the government itself.

In their statement, the justices wrote that the statutory language covering a person who is "found in … the United States" might not fairly encompass someone already located by authorities and compelled to remain in the country under government supervision.

The justices also focused on whether the second prosecution punished the same continuing offense that had supported the first conviction. They cited established constitutional protections against prosecuting a person twice for the same offense after conviction.

The U.S. Court of Appeals for the 10th Circuit had rejected Herrera-Salazar's argument, reasoning that the federal reentry statute did not require a separate underlying reentry for every alleged violation. Sotomayor and Gorsuch questioned the consequences of that interpretation.

They warned that this approach could permit prosecutors to bring repeated charges against someone for remaining in the country after a single unlawful reentry, even when the person's continued presence had not been interrupted.

"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 said.

The justices drew on Supreme Court precedent addressing attempts to divide a single continuing offense into multiple prosecutable segments. That precedent states that constitutional protections cannot be circumvented simply by separating one crime into different periods or locations.

Sotomayor and Gorsuch argued that Herrera-Salazar's alleged offense continued throughout his presence in the United States following his earlier removal and reentry. In their view, the conduct could not be considered complete until the government permitted him to leave the country.

The justices also highlighted the consequences of prosecuting someone whose movements were restricted by the authorities. They noted that Herrera-Salazar faced the possibility of another charge even for remaining in the country while serving the sentence imposed for his first conviction.

"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 said. The justices added that the same reasoning could theoretically permit separate prosecutions for every day he was found in prison while serving his original sentence.

Sotomayor characterized the circumstances as a legal dilemma in which Herrera-Salazar could face accusations of violating the law whether he stayed in the country under supervision or departed the United States.

She urged courts confronting similar cases to apply constitutional protections fully, warning against the possibility of repeated prosecutions based on a single continuing offense. Gorsuch's decision to join the statement marked another instance of the two justices expressing agreement despite their differing judicial philosophies.

Their cooperation has extended beyond immigration law. In 2021, Sotomayor and Gorsuch made a joint public appearance to warn that misinformation spreading on social media posed an urgent national security threat.

Their latest statement came during the Supreme Court's new term, as the justices considered numerous petitions seeking review. Sotomayor had also issued a separate statement the previous week concerning a death penalty case, drawing attention to constitutional questions surrounding the treatment of prospective jurors.