Sheriff Arpaio Pardoning: Racial Profiling, Contempt of Court, and the Law

President Trump pardoned Joe Arpaio on Friday, August 26, absolving the former Arizona sheriff of the contempt of court charge that stemmed from his refusal to obey a court order to abandon his department’s racial profiling policies. In the discussion that follows, Stanford Law Professor Robert Weisberg explains the charges against Arpaio and the implications of a Presidential pardon.

What was the original complaint or charge against Arpaio?

In effect the charge was racial profiling, even though that’s not really a legal term. He’d been detaining large numbers of people on the ostensible ground that there was reasonable suspicion that they were immigration law violators. But the evidence showed that his officers were actually detaining people simply because they supposedly looked Latino/a, without the reasonable suspicion of crime needed to justify a seizure. In addition to automobile stops, Arpaio specialized in so-called “saturation patrols” of Latino neighborhoods and places where day laborers gathered. So, lawsuits brought by both a class of private plaintiffs and the Department of Justice accused Arpaio of violating both the Equal Protection Clause and the Fourth Amendment. Also, his authorization to enforce federal immigration law was revoked because of these abuses, yet he continued to make these so-called immigration stops.

Robert Weisberg 2
Stanford Law School Professor Robert Weisberg

Can you explain the contempt of court conviction?

The history of this case is unbelievably convoluted, but here’s the gist. U.S. District Judge Murray Snow (appointed by G.W. Bush) issued a number of orders against Arpaio and ultimately issued an injunction requiring him to cease the detentions. Judge Snow also held Arpaio in civil contempt, a finding of which itself could have put Arpaio in jail (for as long as he was defying the orders). Ultimately the case was transferred to U.S. District Judge Susan Bolton (a Clinton appointee but a registered Independent who had been recommended by a Republican U.S. Senator).  Judge Bolton presided over a trial for criminal contempt because Arpaio was willfully refusing to comply with the injunction. Arpaio was awaiting sentencing on this charge when Trump pardoned him.

What happened to the civil rights charges of abusive treatment of prisoners? Is that case over?

As noted above, the illegal detentions were ordered to stop. But numerous other lawsuits were brought because of abuse. Arpaio once held inmates in enclosures where heat rose to 145 degrees Fahrenheit (you read that right; he remarked that our soldiers in Iraq were exposed to such heat “and they weren’t convicted of crimes.”).  Arpaio lost all those suits, and slowly the abuses were mitigated. And, no thanks to Arpaio, the infamous tents in which he held inmates were removed by his successor, who defeated Arpaio’s last reelection bid.

What the media has reported about Arpaio’s illegal actions grossly understates things. A review of his history as sheriff shows him to be arguably the nation’s most prolific perpetrator of civil rights violations in the last 50 years. In that unbelievably long list of actions you’ll see lots of fraudulent “criminal investigations” he conducted against state and federal officials who tried to rein in his actions (even Judge Snow!).

What does the Presidential pardon mean?

First, of course, the sentence is commuted—he won’t go to jail or pay any fine. Second, the conviction itself is erased. So, for what it’s worth (not much at his age and given his retirement), it immunizes him from the so-called collateral consequences of the conviction (of which there are few anyway for a misdemeanor).

Was the pardon legal? Was it within the norm of past Presidential pardons?

Perfectly legal because there really are no restrictions on the power. Although the facts are unclear as to what went down just before President Trump’s announcement, Trump may have ignored the standard DOJ protocol requiring application for and then DOJ review of pardon requests, but those regulations are not enforceable in any legal sense and any president can ignore them.

It’s hard to generalize about the norms of Presidents. It’s very rare for a mere misdemeanor to be deemed worthy of a pardon, so the inference of political grandstanding is very strong here. On the whole, pardons are acts of mercy towards rehabilitated, long-term prisoners. But one can’t say that the pardon power has always been “non-political.” Obviously Ford’s pardon of Nixon was political in a sense, though arguably for a reason (“heal the nation’s wounds” was the cliché of the time) more benign than Trump’s.

What about deference to the courts? Does this pardon weaken our rule of law?

This is being said, and of course it could be said of any pardon. But there are two special things about this one. First, as noted, the pardon power is almost never used for misdemeanors, so this one seems especially gratuitous. But second, since Trump has been roundly charged with disrespecting judges and enabling racial divisiveness, it seems striking that the crime being pardoned here was defying a court order that a public official cease unconstitutional discrimination.

What are next steps, if any, in terms of potential legal challenges?

None really. He has been pardoned—there are no other legal consequences. But consider this: While some legal commentators suggested that the firing of Comey could be obstruction of justice (and hence a reasonable basis for impeachment), some are now going even farther by suggesting that the pardon qualifies as obstruction too. The argument is that the pardon is a wink to people who might be under investigation by Mueller –a hint that if they refuse to cooperate and therefore risk criminal charges, they too might win Presidential beneficence. That theory is as clever and creative as it is quixotic.

Robert Weisberg is the Edwin E. Huddleson, Jr. Professor of Law and Faculty Co-Director of the Stanford Criminal Justice Center. His scholarship focuses on criminal law, criminal procedure, white collar crime, and sentencing policy.