What does the Supreme Court's Arteaga-Martinez decision mean for immigration law?

All eyes are on the Supreme Court, still waiting to release 18 opinions before the end of the month. The highest profile cases could undo the federal right to abortions and drastically change how states can approach regulating guns. But those cases have overshadowed others, which could also have huge implications. Daniel Medwed, GBH News legal analyst and Northeastern University law professor, joined GBH’s Morning Edition host Jeremy Siegel to explain some interesting cases involving double jeopardy and immigration detention. This transcript has been edited for clarity and length.

Jeremy Siegel: We know you specialize in criminal law, so let's start there. Any interesting criminal law opinions recently released by the high court?

Daniel Medwed: Of course, at least interesting to me, and I hope to everyone else. Just last week, the court issued a really important decision on the double jeopardy clause, which is the provision of the Fifth Amendment that says you can't be tried twice for the same offense. What that looks like in practice is, say you're charged with first degree murder in Massachusetts state court and you're acquitted at trial. Massachusetts state prosecutors would be foreclosed from refiling first degree murder charges against you based on the same set of circumstances. That's a double jeopardy violation.

However, there are some important limitations. One limitation is that you may be tried twice for the same behavior or conduct, provided that it's a different offense. So you're acquitted of that first degree murder charge, but maybe prosecutors will charge you with conspiracy or assault related to that set of circumstances. Another limitation is known as the dual sovereignty rule. That is, Massachusetts state prosecutors won't be able to charge you with first degree murder, but the federal government, the U.S. Attorney's Office, could charge you with that exact same offense, basically, provided that it has jurisdiction, based on the idea that state government and the federal government are different sovereigns.

Siegel: Is that why there was so much talk after the Boston Marathon bombing case about whether Dzhokhar Tsarnaev would face state criminal charges on top of being prosecuted in federal court?

Medwed: Exactly. There was nothing, or at least there was no double jeopardy barrier, to state prosecutors in Massachusetts, to Suffolk County prosecutors, charging Dzhokhar Tsarnaev with a range of crimes, including crimes that directly overlapped with the ones he was facing in federal court. Why was there no barrier? Again, because the state government and the federal government are treated as separate sovereigns under the double jeopardy clause. Now, this case from the Supreme Court last week implicates all of these various issues.

It involves a man named Merle Denezpi. And here's what happened: A federal official with the Bureau of Indian Affairs filed a criminal complaint against Denezpi for a series of crimes that allegedly happened at a house on the Ute Mountain Reservation out west. The specific crimes he was charged with were assault, making terroristic threats and false imprisonment. Now Denezpi pled guilty and he got time served, which seemed like a pretty good deal. Or at least so he thought until six months later, a federal grand jury indicted him on a different crime, aggravated sexual abuse, under federal law. Federal prosecutors took him to trial on that charge, which related to the same set of circumstances as the previous counts. And he lost. And get this: He was sentenced to 360 months in prison. 30 years. He responded, and this is quite understandable, by saying it's a double jeopardy violation. 'I was tried twice by the federal government for the same set of facts. That violates double jeopardy.'

Siegel: How did this turn out? I mean, it seems like being charged twice by the federal government, even if they're different departments, the Bureau of Indian Affairs here and the U.S. Attorney's Office — is that a problem?

Medwed: It seemed like a problem, at least for Denezpi, and that was his major claim. But the court focused on a different issue. In an opinion authored by Justice Amy Coney Barrett, the court expressed little concern about the fact that he was tried by two different federal agencies, but instead focused on the fact that there was a differentiation in the actual charges. That the assault, terroristic threats and false imprisonment charges under the Ute Mountain Code differed significantly in how the elements were defined from that aggravated sexual abuse count. In other words, even if assuming for purposes of argument, it was the same sovereign trying him twice, the offense was different. They found no double jeopardy problem.

Siegel: Is there anything else that's come out that people might not be following, but has struck you as particularly interesting?

Medwed: Another case, which may seem a little bit technical but I think is really important, relates to immigration law. Like a lot of people, I've been watching the twists and turns of immigration law over the last few years really closely as the presidential administrations have shifted and priorities have changed. But one thing that remains static is that there's a tremendous backlog in our immigration law system. If someone is ensnared in the process, it can take many, many months of detention before there's a determination about whether they'll be deported, removed or allowed to remain in the country.

In another opinion released last week, here's what happened: A man named Antonio Arteaga-Martinez was swept up by American immigration officials who claimed that he was in the U.S. without authorization. He's a Mexican citizen, and they sought to remove him to Mexico. He filed something called a withholding of removal application, where he said, 'I have a credible fear of persecution and torture if I'm sent back to Mexico, I should be allowed to remain in the U.S.' He then was kept in prolonged detention for many, many months as his claim played out. And eventually he filed a writ of habeas corpus where he said, 'I deserve what's called a bond hearing, a hearing before a judge to decide whether I can be released in the community as I await the resolution of this case.'

Siegel: What did the courts hold here? Did he have a right to a hearing or at least to be considered for release while he awaited a decision?

Medwed: On the one hand, the lower courts said, yes, he deserves a bond hearing. And in fact, there's a presumption of release under this bond hearing. On the other hand, the Supreme Court took this case, and that's always a bad sign for a defendant or detainees these days, at least, or it seems to be. And the Supreme Court said, no, that there's nothing under this immigration statute that says you're entitled to release. So another blow, I think, for people who are swept up in the immigration system.