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President Trump pardons former Sheriff Arpaio

Despite his reputation for racially profiling Latinos as a means of tracking illegal immigrants, the self-proclaimed “toughest sheriff in America” was recently pardoned by President Trump for his misdemeanor charge.

Photo: ABC News, (Courtesy of Google Images)

In ancient Greek tragedies, the gods sometimes rescue characters from impossible situations at the last possible moment. Actors portraying Zeus and other deities in theatrical productions would be moved onto the stage via machines to deliver their lines and “save the day.” These saviors would enter unexpectedly and suddenly, making the play change abruptly or end awkwardly. The phrase “deus ex machina”—“god from the machine”—is now often used to describe such situations in theatre, as well as other situations in which someone unexpectedly intervenes to save a character.

Former Sheriff Joseph Arpaio, also known as Sheriff Joe, was also saved quite unexpectedly. After coming out of retirement in 1992, Sheriff Joe ran the sheriff’s office of Maricopa County, Arizona, where the capital city of Phoenix is located. During Sheriff Joe’s tenure, he gained national attention for his treatment of the Latino community of Maricopa County. He continued to be re-elected for 24 years, until 2016 when he lost to Sgt. Paul Penzone, a former police officer (and Democrat).

Sheriff Joe has been branded by many as “America’s toughest sheriff.” His brand of tough, however, often included violating the civil rights of prisoners and the surrounding Latino community. Sheriff Joe’s department would routinely stop any Latino person and ask for immigration papers or citizenship identification. If the person could not produce such a document, the officer would then arrest the person without probable cause of any violation of any law.

Men were forced to wear pink underwear and be a part of chain gangs…[while] women were forced to sleep in their own menstrual blood and were often sexually harassed.

If someone had committed a crime and were sentenced to jail, the convict would be sent to Tent City, a jail created by Sheriff Joe in the Arizona desert near Phoenix. The jail was made up of rows of military surplus tents with multiple occupants in each tent. Tent City would get so hot that the soles of convicts’ shoes would melt off. Men were forced to wear pink underwear and be a part of chain gangs, to be paraded about the county. Women were forced to sleep in their own menstrual blood and were often the subject of sexual harassment, including having nude pictures taken of them and distributed to officers.

Sheriff Joe’s legal troubles began after the arrest of a Mexican man driving in Phoenix. Manuel de Jesus Ortega Melendres was pulled over while driving in Maricopa County. He had a valid tourist’s visa, but Sheriff Joe’s officers still arrested Mr. Melendres and held him in detention for eight hours. Mr. Melendres, after being released from detention, filed a lawsuit with the help of the American Civil Liberties Union (ACLU) against Sheriff Joe for his racially discriminatory policies and practices. Around the same time, the Department of Justice (DOJ), under President George W. Bush, began an investigation into Sheriff Joe’s practices.

The U.S. Federal District Court of Arizona delivered a preliminary injunction against Sheriff Joe in 2011. In its ruling, the court stated, “states do not have the inherent authority to enforce the civil provisions of federal immigration law.” Sheriff Joe was told that his office could no longer detain people solely on suspicion the individual was in the U.S. undocumented. He ignored the injunction and continued to arrest Latinos in the community based on his department’s suspicions.

The DOJ filed a civil rights lawsuit against Sheriff Joe in 2015. Sheriff Joe’s attorneys argued the injunction was unclear, claiming it made implementing new policy confusing and difficult. Throughout the DOJ’s investigation, Sheriff Joe held many press conferences and spoke to media outlets about his policies. He blatantly disregarded the injunction, seeing it as a political move by the Obama administration. The district court found Sheriff Joe had ignored the injunction and was in civil contempt of court. At that time, Sheriff Joe had lost the election to Paul Penzone and was no longer in office. Judge G. Murray Snow, who found Sheriff Joe in contempt, referred the case to the DOJ for criminal contempt charges.

Without any new evidence, America’s toughest sheriff was heading to his very own jail cell.

Judge Susan R. Bolton heard the new charges against the former sheriff. Criminal contempt is a misdemeanor and carries a maximum six-month jail sentence. Sheriff Joe’s civil contempt judgment and his continued behavior while in office seemed to seal his fate. Without any new evidence, America’s toughest sheriff was heading to his very own jail cell.

As Sheriff Joe faced his grim outcome, President Trump came to a rally in Phoenix. He arrived to promote building a wall along the U.S.-Mexico border and to comment on the Charlottesville violence. Sheriff Joe had been a strong supporter for then-candidate Trump during the general election, with his support following into the Trump presidency. Speaking to a crowd of supporters, President Trump referenced Arpaio’s charges, stating, “You know what? I’ll make a prediction. I think he’s going to be just fine, okay? But I won’t do it tonight, because I don’t want to cause any controversy. Is that okay?”

Three days later, President Trump pardoned Sheriff Arpaio. In a White House press release, President Trump’s staff reasoned, “Arpaio continued his life’s work of protecting the public from the scourges of crime and illegal immigration… [A]nd after more than fifty years of admirable service to our Nation, he is a worthy candidate for a Presidential pardon.”

Many questioned whether the President’s pardon was legal in this context. The pardon power comes from Article II Section 2 Clause 1 of the U.S. Constitution declaring, “The President … shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” The pardon power is usually reserved for correcting an injustice, showing mercy, or implementing public policy.

Typically, recipients are also already serving sentences when considered for a pardon. Furthermore, recipients are usually vetted by the DOJ Office of the Pardon Attorney, which submits an advisory review before a pardon is announced. The President has ultimate authority to choose who to pardon but tradition has included the DOJ in such decisions. Notable modern presidential pardons include President Nixon pardoning Jimmy Hoffa for jury tampering, President Ford’s pardon of President Nixon after he gave his resignation, and President Bush pardoning military officers involved in the “Iran-Contra” deal.

President Trump did not seek out DOJ review before pardoning Sheriff Joe, going directly against tradition.

Sheriff Joe’s pardon does not follow historic precedent. Sentencing for his criminal contempt charge was scheduled for October, and his appeals were not exhausted nor even begun. Criminal contempt sentencing is at the discretion of the judge, and if the judge is too harsh it can be settled on appeal. No such opportunity was given to Sheriff Joe or the judiciary. President Trump did not seek out DOJ review before pardoning Sheriff Joe, going directly against tradition. Sheriff Joe did not apply for a pardon as is expected of pardon seekers. It is also unusual for a presidential pardon to be used on a misdemeanor like Sheriff Joe’s. As controversial as the pardon may be, President Trump’s execution of the pardon is likely constitutional as an enumerated power of the Executive Branch.

While it may be in his discretion to issue pardons, President Trump’s pardon sends an unfortunate signal to others around the country. As Vanita Gupta, chief executive of the Leadership Conference on Civil and Human Rights, told the Washington Post, “This pardon sends a dangerous message that a law enforcement officer who abused his position of power and defied a court order can simply be excused by a president who himself clearly does not respect the rule of law.”

Claire Scott
About Claire Scott (15 Articles)
Claire Scott is a third year law student and serves as a Senior Staff Writer for the Campbell Law Observer. Originally from Chesapeake, VA, Claire is a Campbell University alumi. After her 1L summer, she worked in the Harnett County NC District Attorney's Office as well as the District 11A Veteran Treatment Court. Her legal interests include estate planning and veteran law.