A Pardon Worthy of Contempt

On the night of August 25, 2017, Donald Trump issued his first presidential pardon on former Maricopa County Sheriff Joe Arpaio for a contempt-of-court conviction over a federal court order violation meant to prevent racial profiling. The official statement from the White House read, “Sheriff Joe Arpaio is now eighty-five years old, and after more than fifty years of admirable service to our Nation, he is worthy candidate for a Presidential pardon.” But we all know that Trump promised to pardon the former Arizona sheriff at his Phoenix rally early that week. After all, to Trump and his supporters, Arpaio was just a law enforcement official convicted of only “doing his job.” Nevertheless, this presidential pardon validates the idea that promising “law and order” and protection from social disorder in the form of undocumented immigration and street crime doesn’t require adhering to the rule of law. Not to mention, it sends a powerful message to sheriffs across the country worried that cooperating with federal immigration officials could get them in trouble with the courts.

 

However, we must understand that Sheriff Joe Arpaio wasn’t convicted for only “doing his job.” Back in the mid to late 2000s, the federal government started escalating immigration enforcement to an unprecedented degree by relying on local law enforcement. Along with the election of a hardline anti-immigration chief prosecutor Andrew Thomas, Arpaio became the face of local law enforcement of federal immigration law. Calling himself “America’s Toughest Sheriff,” he gave celebrity tours of his infamous “Tent City” for housing undocumented immigrants whom he forced to work on chain gangs in under the sweltering desert sun, which he proudly referred to as “concentration camps.” And he often gifted guests with commemorative pairs of pink underwear he made inmates wear under their black and white uniforms. He bragged about his “sweeps” results which were local late night immigration raids to round up undocumented immigrants and hand over to Immigration and Customs Enforcement (ICE). In addition, he maintained an immigrant smuggling squad to stop cars with Latino drivers and passengers in order to check their immigration status. Despite widespread criticism by human rights groups and political leaders, Arpaio was reelected Maricopa County Sheriff 5 times thanks to a bastion of conservatives and retirees who view him as a white knight and defender of the 1950s Shangri-La they’ve sought to preserve in the largely white suburbs around Phoenix while keeping the money and political power. Yet, many of the white owners employ the undocumented immigrants Arpaio targets but he doesn’t bust them for exploiting their labor. Meanwhile soaring number of Hispanic residents comprises of a third of the county’s population which rose 47% within the last decade. After all, Maricopa County is the 4th largest county in the US and 50 miles from the Mexican border while Phoenix is a destination for undocumented immigrants and drug dealers alike. By vocally targeting undocumented immigration, Arpaio became a regular on Fox News and a hero to the Tea Party as well as a go-to media prop for conservative politicians wanting to be seen as immigration hard liners. While traveling the country to endorse these right-wing candidate, he attracts millions of dollars from political allies outside Arizona who long gave him an advantage his opponents couldn’t match. As former Phoenix police chief George Gascon told Rolling Stone, “Arpaio knows how to move the needle when it comes to appealing to the base. What he did very artfully is piggy-back on this fear of illegal immigration that was becoming so prevalent in border states like Arizona. He was able to capitalize on that and he became the hero, the only guy who would single-handedly go after it.”

 

But these methods raised questions on how exactly Joe Arpaio and his deputies determined who to apprehend for immigration offenses or whether they were just arresting anyone living in Maricopa County who just happened to be Latino, even in cases where the “suspects” violated no state law. His rhetoric and tactics have spread fear in Arizona’s Latino community who very understandably loathe him. Though Arpaio communicated toughness through big, theatrical stunts, his practices often violated the rights of his targets. His roadblocks to detain drivers who merely looked like undocumented immigrants was a virtual license to profile Hispanics. Reports of pull-overs with little or no discernable traffic violations became so widespread that one study showed Latinos in the northeastern part of Maricopa County as 9 times more likely to be stopped for the same infractions as other drivers. The DOJ alleged that Arpaio’s men relied on factors “such as whether passengers look ‘disheveled’ or do not speak English.” Some were justified after the fact such as an incident involving a neatly dressed group of Latinos described in a police report as “dirty.” The sheriff himself acknowledged the crackdown a “pure program to go after the illegals and not the crime first.” To make matters worse, Arpaio has frequently arrested and detained Latino US citizens, legal residents, and tourists, including children, for hours at a time without a charge or warrant. Mostly because according to Arizona State’s Charles Katz, “Illegal immigrants make up less than 10 percent of those arrested. They’re involved in less criminal activity than native-born Americans.” According to retired police officer Bill Richardson, “He’s vilified Latinos in such a way that normal people, they’re scared to death.” Such terror only makes it more difficult for police to do their jobs since it makes Latinos more afraid of law enforcement.

 

Groups for years have criticized the Tent City and jails over notorious minimalistic conditions as violating human and constitutional rights since the 1990s. Federal investigations on Tent City date as far back as 1995. Joe Arpaio was proud of his prison experiments as an inexpensive solution to overcrowded jails and frequently invited the media to witness each new cohort being sent to the Tent City. But what the prisoners experienced was absolutely horrific. The DOJ reported that guards referred to Latino inmates as “wetbacks,” “Mexican bitches,” “stupid Mexicans” and “fucking Mexicans.” In addition, female prisoners were forced to sleep in their own menstrual blood and were denied basic sanitary items. Officers refused to respond to inmates pleas if they made them in Spanish and sometimes put them in solitary confinement for extended periods of time if they didn’t understand English. One former inmate recounted his experience to the Washington post saying, “During the sweltering summer, the temperature could reach 115 or 120 degrees. I was in the tents when we hit 120. It was impossible to stay cool in the oppressive heat. Everyone would strip down to their underwear. There was no cold water, only water from vending machines; and eventually, the machines would run out. People would faint; some had heatstroke. That summer, ambulances came about three times. One man died in his bed. But the winter was even worse. During the winter, there were no heaters. Most jackets and heavily insulated pants weren’t allowed; they don’t want you to be comfortable.”  Holes torn into the tents let in wind and rain, drenching the beds. Prisoners would make ropes to hold tent canvases together out of black trash bags they were given as raincoats. Many inmates were forced to work in chain gangs and subjected to humiliating practices like public parades. Healthcare was substandard and often neglected as many inmates were subject to the point of extreme suffering, even death. Mentally ill detainees were especially victimized. Detention officers didn’t want to work there since it was dangerously overcrowded and understaffed. Prisoners often died with no explanation. According to attorney Michael Manning, “His entire jail operation was unconstitutionally inhumane and unconstitutionally dangerous.” To make matters worse, most of the inmates there were either low level crooks serving short sentences, suspected undocumented immigrants, or those awaiting trial. After Arpaio’s reelection defeat in 2016, the tent cities were ultimately shut down after being cited for violations against the Eighth Amendment’s prohibition against “cruel and unusual punishment” and a unanimous vote by Maricopa’s Board of Supervisors.

 

Joe Arpaio’s “law and order” policies weren’t successful as anti-crime measures since Maricopa County 911 response times rose dramatically during the heyday of Arpaio’s sweeps. Mostly because Arpaio had been so obsessed with the often-illusory crimes of undocumented immigrants that he’s ignored more than 400 sexual abuse cases he was responsible for investigating including assaults on children. In another incident, Arpaio staged a massive prostitution round up involving 350 deputies resulting in the Maricopa County Attorney’s Office declining 80 cases for prosecution. Meanwhile, 12 execution style murders remained unsolved. As a Phoenix resident wrote to the Arizona Republic on the incident back in the early 2010s, “If Joe Arpaio continues to spend the county’s scarce law enforcement dollars on chasing consenting adults engaged in private sexual activity, while child murders and sexual assaults remain unsolved, he should be the one to explain to the next grieving mother why her child’s killer has not been caught, prosecuted and put in prison. And the taxpayers should send him a message by electing a new sheriff who doesn’t treat public funds as his private public relations piggybank.” In addition, Arpaio was responsible for a critical and dangerous shortage of personnel on both jails and patrol because he often assigned deputies as his bodyguards and detention officers for his labor intensive, publicity producing chain gangs for TV. But the worst of his “tough on crime” publicity stunt was when he staged an assassination attempt against himself in 1999 to boost his popularity which resulted in an innocent man spending 4 years in jail waiting to clear his name.

 

When local political leaders criticized Arpaio’s tactics, he simply used his power to go after them. Starting in the mid-2000s, his internal affairs office was more of a task force to pursue personal grudges than an effort to keep his deputies in line. Not to mention, Arpaio had been cited for systematic abuses of power for trying to get his enemies brought up on criminal charges including local judges like Snow, members of the Maricopa County Board of Supervisors, local attorneys, county and state officials, former US Attorney General Eric Holder, municipal law enforcement, newspaper heads, and a former mayor of Phoenix. He famously investigated Barack Obama’s birth certificate which he wrote off as a forgery. In one instance, the sheriff’s office arrested a county board member who questioned the costs associated with Arpaio’s immigration crackdown and held him in jail for several hours. Another instance in 2007, led to arrests of the CEO and top editor of the Phoenix New Times for publishing an aggressive report on the sheriff’s real estate dealings and refused to comply with subpoenas for more than 2 years of the newspaper’s records on Arpaio and information on anyone who visited the website and read the stories. They were apprehended during a raid on their homes while their families looked on and were charged with violating grand-jury secrecy by reporting on the subpoenas. In 2008, Arpaio conducted a late-night raid on Mesa City Hall allegedly looking for undocumented immigrants after Police Chief George Gascon prevented him from sending officers to confront those protesting his crime sweeps over harassment and racial profiling. Gascon also hired free speech lawyers to represent the demonstrators as well. Arpaio arrested a handful of documented janitors and then raided Gascon’s police station for the workers’ computer files suspecting their papers were fake.

 

In the past decade hundreds of lawsuits were brought upon the Maricopa County Sheriff’s Office with charges ranging from deaths in Joe Arpaio’s jails to unlawful arrests. Far from saving money, Arpaio’s on-the-cheap Tent City has cost Maricopa County more than $50 million to defend itself against lawsuits from the sheriff’s victims. In 2007, a few Latino residents sued him for civil rights violations. The plaintiffs claimed deputies targeted them at traffic stops and sometimes detained them for hours on suspicion of being in the US without papers, apparently due to their ethnicity. The US Department of Justice investigated the Maricopa County Sheriff’s Office for 3 years and in 2011 reported that it had engaged in the worst pattern of racial profiling in US history. The DOJ subsequently filed suit against his MCSO of creating “a pervasive culture of discriminatory bias against Latinos” that “reaches the highest levels of the agency.” As a result, Judge G. Murray Snow issued an injunction preventing Arpaio from apprehending or detaining anyone purely on a suspected undocumented status or turning such people over to ICE. That same year, the US Department of Homeland Security revoked MCSO’s authority to identify and detain undocumented immigrants.

 

Though Joe Arpaio officially lost the civil suit in 2013, it was obvious his department hadn’t complied to Judge Snow’s 2011 injunction. The Maricopa County Sheriff’s Office kept engaging in immigration “sweeps,” turning people over to ICE (or the Border Patrol when ICE stopped accepting detainees from Arpaio’s deputies), and holding suspected undocumented immigrants in jail after they’d otherwise be released for federal agents to pick them up. After several hearings about the Maricopa County Sheriff Office’s failure to obey the 2011 order, Judge Snow cited Arpaio and some of his subordinates for civil contempt of court in 2015. The next year, Snow asked the US Attorney’s Office to charge Arpaio and 3 others with criminal contempt, which someone can only be convicted of if it’s shown that they willfully refused to obey the court order, not just failed to make sure it was obeyed. Of course, Arpaio denied deliberately disobeying Snow’s order, claiming he hadn’t properly understood it. He claimed the violations were his deputies’ fault not his. Judge Snow didn’t buy it for obvious reasons. First, witnesses testified that Arpaio and his underlings told them not to change internal policies after the court order.  Second, during his frequent media appearances, Arpaio often claimed his department was just doing what it had always done, arguing that he was simply doing the job the federal government had failed to do. He even told reporters he would “never give in to control by the federal government,” that he would not “back down” and “if they don’t like what I’m doing get the laws changed in Washington.” Third, Arpaio had attempted to dig dirt on Judge Snow himself (including having a detective investigate the federal judge’s wife). As US District Judge Susan Bolton wrote, “Not only did (Arpaio) abdicate responsibility, he announced to the world and to his subordinates that he was going to continue business as usual no matter who said otherwise. The evidence at trial proves beyond a reasonable doubt and the Court finds that Judge Snow issued a clear and definite order enjoining Defendant from detaining persons for further investigation without reasonable suspicion that a crime has been or is being committed; that Defendant knew of the order; and that Defendant willfully violated the order by failing to do anything to ensure his subordinates’ compliance and by directing them to continue to detain persons for whom no criminal charges could be filed.”

 

 Joe Arpaio’s July 2017 conviction for contempt of court was a predictable consequence of the way he ran his department guided by the idea that as long as law enforcement officials grabbed headlines by going after undesirable people, the public wouldn’t care how it was done. The evidence for his guilt was overwhelming and there was nothing improper about Arpaio’s trial and well-deserved conviction. Nobody contested that the former sheriff targeted and jailed Latinos in inhuman conditions on suspicion of undocumented immigration. There was no doubt he was guilty of contempt. Nobody questioned the fact he defied a court order so he could continue his race-based reign of terror that targeted innocent people on the basis of their ethnicity. He saw himself above the law and bragged about defying a court order in front of the cameras. You can’t find a clearer case of contempt of court than this. Arpaio was clearly not doing his job to enforce the law. Instead he broke it and openly disregarded it in broad daylight without a hint of remorse.

 

Donald Trump’s pardon of Joe Arpaio is essentially allows a government official to defy Constitutional rights with impunity. It is an endorsement of the corrupt former sheriff’s flagrant racism and birtherism. Furthermore, not only did Trump pardon Arpaio without any of the appropriate processes and procedures, but also reflects his appalling disrespect for democratic institutions. And from a moral standpoint, it is completely indefensible. Unfortunately, it shouldn’t surprise anyone that Trump would pardon such a despicable man since he shares the notorious ex-sheriff’s views such as little regard for civil rights, democracy, and the rule of law. The federal judiciary and legal system operates under the reasonable expectation that public officials like Arpaio will follow valid court orders whether they agree with them or not. Without this compliance there’s no law. Also, it reflects his priorities such as rewarding those he sees as loyal and punishing those like special prosecutor on the Russia investigation, Robert Mueller whom Trump has wanted to fire. It shouldn’t surprise no one that Arpaio is a loyal Trump supporter for years. Now in the Trump administration, when judicial norms or the rule of law threaten to limit Trump’s actions, they may be safely disregarded. As Slate’s Michael Joseph Stern writes: “Arpaio’s conviction was a test for how long and how willing Trump will be to abide judicial oversight. He flunked it. It now seems clear that many future beneficiaries of the president’s clemency will be his political allies—and that he might not wait to for them to be convicted or sentenced before issuing a pardon. Trump, in other words, may use his pardon power to stymie Robert Mueller’s investigation, as well as other inquiries into the past misdeeds of his associates.” We’d expect a crime boss or a dictator to do this but it’s the last thing we’d want from a president. In fact, such abuse on a pardon could be grounds for impeachment as James Madison explained.

 

On the immigration front, Donald Trump’s pardon of Joe Arpaio for aggressively enforcing immigration law in the worst way possible, it sends a very clear message to local sheriffs in public office worried about court liability. Particularly, as the administration ramps up immigration enforcement, when it comes to holding people after they’d otherwise be released from jail so ICE agents could pick them up. Since sheriffs could get in trouble with the courts for violating the Fourth Amendment. Nevertheless, Trump indicates that if they get aggressive and get in trouble with the law for it, the administration will have their back. But as Pinellas County Sheriff Bob Gualteri told the Daily Beast, “If we violate the law by doing what they ask us to do, we’re subjecting ourselves, no question, to civil liability and civil rights violations.” Some sheriffs like Gualteri feel that the Trump administration is oblivious to their concerns and for very good reason. He added that officials “are saying, ‘What are you sheriffs doing? Why aren’t you cooperating?’ when they don’t know that it is clearly a problem and that we can’t do it.” Unlike Arpaio, most local law enforcement officials aren’t interested in enforcing immigration laws since they have better things to do. As Arpaio’s case demonstrates, a local crackdown on undocumented immigration drains time and resources, hurt community relationships, and can keep law enforcement officials from doing their jobs. Maricopa County suffered an increase in violent crime because of Arpaio’s actions. Besides, Trump’s pardon power can’t shield these sheriffs from court costs and damages that their communities will have to cover. Then there are sheriffs like Arpaio who could use that pardon as an excuse to racially profile Latinos and violate their constitutional rights regardless of their immigration status and get away with abusing their power, neglecting their duties, and violating several laws. And like in Arpaio’s reign of terror, many of those victimized can’t effectively use the courts to fight back. At a time when there’s more awareness of widespread law enforcement abuse toward people of color, the Arpaios of this country are the last officials we need to enforce our laws.  

 

And finally, another reason why Donald Trump’s pardon of Joe Arpaio is how it emboldens white supremacists. In addition to his media savvy, Arpaio called himself a “constitutional” sheriff, emphasizing his lofty mandate to uphold the US Constitution, which is also a political dog whistle for states rights’ advocates and white supremacists with a deep-seated hatred of the federal government. And it surprised nobody that the Arizona white supremacist JT Ready had attended one of Arpaio’s rallies before shooting and killing his girlfriend, her family, and himself in 2012. Pardoning a government official who unjustly terrorized people of color could make white supremacy and white supremacist terror more acceptable. Trump has already refused to condemn white supremacists for Charlottesville for which he blamed the violence on “many sides.” In pardoning Arpaio, he essentially states that minorities’ civil rights don’t matter, especially if law enforcement is concerned. As former Justice Department Civil Rights Division head Vanita Gupta said, “If President Trump uses his power to pardon a discredited law enforcement official who persistently engaged in illegal racial profiling of the Latino community, it will not be a dog whistle to the so-called ‘alt right’ and white supremacists, but a bull horn. No amount of tweets or forced remarks read from a teleprompter could undo the damage.” Arizona Representative Raul Grjalva noted, “Pardoning Arpaio is a culmination and an added layer to what is already a very, very perilous and dangerous path in which this country is going under Trump. A path that calls for this country to marginalize some, to treat others different under the rule of law, and to essentially condone, comfort and coddle the racist and hateful organizations and individuals that are a significant part of his base.” White supremacists comprise of a key part of Trump’s base and have committed hate crimes in his name since his election. Pardoning Arpaio for just “doing his job” only empowers them further which in turn leads them to commit violence against people of color.

 

There is no doubt that Donald Trump’s pardon of former Sheriff Joe Arpaio was indefensible at every imaginable standpoint. It’s a smack in the face for those who worked through the judicial system to hold this man accountable and robbed people hurt by hurt by his policies of justice. And before a judge could even sentence him. It’s an insult Maricopa County’s Latino community whom Arpaio constantly victimized in his sweeps as well as its residents who bore the financial and social costs. While it might be a get-out-of-jail-free-card for county sheriffs, it can also pressure them into going against what’s best for their communities. And worst of all, it will further empower white nationalists to victimize minorities in Trump’s name. In fact, this pardon reeks of pure contempt for every American believing in justice, human dignity, and the rule of law. Arpaio may be a profile in courage for Trump, his supporters, and white supremacists who see him as a fearless force of white supremacy fighting against the brown scourge of immigration. But the sheriff’s cruel and unusual treatment of prisoners and immigrants foreshadowed the policies Trump and his allies. And Arpaios racism mirror those in the Trump administration today along with the lack of respect for legal norms and the rule of law. Though Trump’s pardon of Joe Arpaio will earn him cheers from his supporters, it is a pardon worthy of contempt.

 

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