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Why The Arpaio Pardon Was Trump-Level Political Theater All The Way

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Capricious, politically motivated, and generating more heat than light, the Joe Arpaio pardon was a thoroughly Trumpian pardon.
President Trump’s pardon of former Maricopa County Sheriff Joe Arpaio for criminal contempt of court related to a racial profiling case has stirred controversy, even on the right side of the political spectrum. Some see the Arpaio pardon as raw politics, an assault on the rule of law and a tacit endorsement of institutional racism. Others see it as a response to the political prosecution of an official for the political crime of attempting to enforce immigration laws the Obama administration had put on a low priority.
The reality may both more and less complicated than you might think. Were this a movie, here’s when we would hear the record scratch during a freeze-frame on Joe, with the caption “How Arpaio Got to the Pardon.”
Arpaio was the elected sheriff of Maricopa County from 1993 through 2016. The length of his tenure was matched by its flamboyance. As Reason magazine’s C. J. Ciaramella observed: “He made a national name for himself with his unconventional and demeaning incarceration practices; inmates lived in a tent city in the desert heat and were forced to wear old-timey striped uniforms, as well as pink underwear. Among Arpaio’s other ignoble achievements were running the only female and juvenile chain gangs in the nation.”
As early as 1995, a court ordered him to improve health care in his jails. The U. S. Justice Department launched an inquiry that found a “pattern of excessive force” against inmates by the sheriff’s staff, but its civil rights lawsuit against the Maricopa County Sheriff’s Office (MCSO) was dismissed in 1997.
The story leading to Arpaio’s conviction and pardon, however, began in 2006. As part of a crackdown on illegal immigration, Arpaio and the MCSO entered into an agreement with the U. S. Immigration and Customs Enforcement (ICE) agency under section 287 (g) of the Immigration and Nationality Act, whereby members of the MCSO were cross-certified to enforce federal civil immigration laws.
In 2007, Manuel de Jesus Ortega Melendres and other plaintiffs brought a class action against Arpaio, the MCSO and other defendants, alleging the defendants violated the Fourth and Fourteenth Amendments to the U. S. Constitution by racially profiling Latino motorists and passengers.
The Melendres lawsuit, which the Justice Department joined, focused primarily on “saturation patrols” in which the MCSO would flood an area, looking for violations of federal civil immigration laws and state immigration-related laws. These sweeps often involved stopping vehicles on traffic violations as a pretext to investigating the immigration status of the vehicle’s occupants.
In 2009, ICE modified its agreement with Arpaio and the MCSO, revoking their section 287 (g) authority to enforce civil immigration laws except in jails. Lawmakers and immigration rights groups had lobbied the Obama administration to curtail the section 287 (g) program in general, and with respect to the MCSO in particular based on the operations at issue in the Melendres case.
In 2011, during pretrial proceedings, district court Judge G. Murray Snow (a Bush appointee) ruled in favor of the Melendres plaintiffs on some of their constitutional claims. He also entered a preliminary injunction barring the defendants from detaining people based solely on reasonable suspicion that they were unlawfully present in the country.
In 2013, after a non-jury trial, Snow concluded Arpaio’s policy violated the Fourth and Fourteenth Amendments by using race as a factor in determining where to conduct patrols, in deciding whom to stop and investigate for civil immigration violations, and in prolonging detentions of Latinos while their immigration status was confirmed.
Snow’s reasoning was similar in both decisions. By itself, unauthorized presence in this country is a civil violation of law, not a criminal offense. Local law enforcement officers do not have the inherent authority to investigate civil immigration violations, including status violations.
After the MCSO lost its section 287 (g) field authority, the only immigration laws its officers had the power to investigate were federal criminal laws or state laws that had not been enjoined (as portions of Arizona’s Senate Bill 1070 had been at that time) . When the MCSO merely suspected a person of being in the country without authorization, it did not (absent additional facts) have probable cause for arrest or even the reasonable suspicion needed to engage in a brief investigatory detention of such persons.
Nevertheless, Arpaio and the MSCO continued operations under policies they developed as if they had the authority that had been revoked. It remained the MCSO’s policy and practice to detain and arrest people believed to be in the country without authorization, even when no charges could be brought.
All of the parties in the Melendres suit ultimately agreed race cannot be considered as a factor for the reasonable suspicion. In 1975, the U. S. Supreme Court ruled that believing a vehicle’s occupants were of Mexican descent, by itself, “would justify neither a reasonable belief that they were aliens, nor a reasonable belief that the car concealed other aliens who were illegally in the country.”
In the same case, the Supreme Court also observed in passing that “ [t] he likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor.” That language, while unnecessary to the decision, has been interpreted by ICE to mean that a Latino appearance can be used as one among a number of factors in establishing reasonable suspicion to justify an investigative stop.
The Ninth Circuit Court of Appeals, however, ruled en banc in 2000 that in locations where a significant portion of the legal resident population is of Hispanic ancestry, the police could not consider Hispanic descent, either alone or in conjunction with other factors, in forming a reasonable suspicion. Whatever one thinks of the Ninth Circuit’s precedent, Snow was bound to follow it.
Moreover, a racially discriminatory policy or practice is subject to strict judicial scrutiny. The judge acknowledged enforcement of immigration-related offenses is a compelling governmental interest, but Arpaio and the other defendants did not argue their policy was narrowly tailored to meet that interest, as would be required to sustain the policy.
Indeed, based on testimony quoted in the order, Snow found MCSO changed its written policies to appear racially neutral without actually implementing them. The MCSO also had no policies to ensure that officers were not engaged in racial profiling. Snow further relied on Arpaio’s public statements as sheriff, which signaled to his deputies the purpose of the continuing saturation patrols was to arrest people not legally present in the country. Lastly, he relied on the MSCO’s continuation of these operations in violation of the terms of the preliminary injunction.
Accordingly, Snow permanently enjoined Arpaio and the other defendants from, among other things, “detaining, holding or arresting Latino occupants of vehicles in Maricopa County based on a reasonable belief, without more, that such persons are in the country without authorization.” The story could have ended there. It did not.
In May 2016, following 21 days of evidentiary hearings, Snow found Arpaio and other defendants in civil contempt of court. In a 162-page order, Snow found Arpaio understood, but intentionally failed to implement, the court’s preliminary injunction, while publicly asserting the MCSO had the authority to do what had been enjoined, in the belief that such activities would benefit his upcoming re-election campaign. The official misconduct went far beyond continuing immigration sweeps, which Judge Snow summarized as follows:
Arpaio admitted the MCSO failed to provide items the defendants were legally obligated to disclose. Moreover, after the post-trial disclosure of additional evidence, defendants deliberately violated court orders and prevented a full recovery of relevant evidence. The judge also found Arpaio made multiple intentional misstatements of fact while under oath.
In August 2016, Snow referred Arpaio’s case for an investigation of criminal contempt, a charge the Obama Justice Department decided to pursue.
As the criminal charge carried a maximum six-month sentence, it was heard not by a jury, but by Judge Susan Bolton (a Clinton appointee recommended by Sen. Jon Kyl (R-AZ) . Following a five-day trial, Bolton found Arpaio guilty of criminal contempt.

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