The Weekly Sift

[Disclosure: I was part of a protest outside of Tent City in 2012. That’s the trip I wrote about in “I Was Undocumented in Arizona“. I had misplaced my driver’s license before leaving home. But being white, I had no problems.]

President Trump’s pardon of Joe Arpaio got a lot of attention this weekend, but no one seemed to be pulling together everything we know.

Who is Arpaio and why do people have such strong feelings about him? For background on Arpaio’s 24-year reign of terror against Arizona’s Latinos, I recommend Rolling Stone‘s “The Long, Lawless Ride of Sheriff Joe Arpaio” from 2012. Arpaio is best known for his Tent City

the infamous jail he set up 20 years ago, in which some 2,000 inmates live under canvas tarps in the desert, forced to wear pink underwear beneath their black-and-white-striped uniforms while cracking rocks in the stifling heat. … From the start, the jail was notorious for its minimalist living conditions, which Arpaio says have saved Maricopa County millions of dollars in building and operational costs. Arpaio fed prisoners two meals a day (valued at 30 cents each), banned cigarettes and coffee, and boasted that temperatures in the summer can hit 141 degrees.

Any savings, though, have been more than eaten up by legal settlements paid to abused prisoners or their heirs. Way back in 2007, Phoenix New Times calculated:

[T]he cost to insure for and defend against Arpaio lawsuits totals $41.4 million.

Francisco Chairez gives a first-person account of serving a year in Arpaio’s jails on a drunk-driving charge. Reading it makes sense of what PNT found regarding the death rate in Arpaio’s jails.

[P]eople hang themselves in the sheriff’s jail at a rate that dwarfs other county lockups. And many of the deaths are classified as having occurred in the county hospital or in a cell without further explanation. People die and no one asks how; no one asks why.

Asking Arpaio’s office for the number of dead prisoners proved useless, but the coroner documented 157 deaths: 39 by hanging. 34 prisoners were found dead in the jail with no cause of death given, and 39 other unexplained deaths came after prisoners were transferred to the county hospital.

That’s 73 deaths — nearly half of all deaths — that county authorities list as “who knows?”

A 2011 report from the Justice Department found “a chronic culture of disregard for basic legal and constitutional obligations.”

Based upon our extensive investigation, we find reasonable cause to believe that [Maricopa County Sheriff’s Office] … engages in racial profiling of Latinos; unlawfully stops, detains, and arrests Latinos; and unlawfully retaliates against individuals who complain about or criticize MCSO’s policies or practices.

MCSO also

routinely punishes Latino [limited English proficient] inmates for failing to understand commands given in English and denies them critical services provided to the other inmates, all in violation of Title VI and its implementing regulations.

… MCSO has implemented practices that treat Latinos as if they are all undocumented, regardless of whether a legitimate factual basis exists to suspect that a person is undocumented.

DoJ brought in “a leading expert on measuring racial profiling through statistical analysis” who

concluded that this case involves the most egregious racial profiling in the United States that he has ever personally seen in the course of his work, observed in litigation, or reviewed in professional literature.

DoJ also found “a pattern of retaliatory actions intended to silence MCSO’s critics”.

MCSO command staff and deputies have arrested individuals without cause, filed meritless complaints against the political adversaries of Sheriff Arpaio, and initiated unfounded civil lawsuits and investigations against individuals critical of MCSO policies and practices.

For example, the two founders of PNT received a $3.75 million settlement from the County to compensate for Arpaio arresting them in the middle of the night on bogus charges.

The opposite of law and order. The manpower and resources for Arpaio’s anti-Latino crusade seem to have been drawn away from investigations of crimes with actual victims, making a joke out of Trump’s claim that “He kept Arizona safe!” The DoJ report says:

The Sheriff’s office has acknowledged that 432 cases of sexual assault and child molestation were not properly investigated over a three-year period ending in 2007. These cases only came to light after a review by the El Mirage Police Department of a period in which MCSO was under contract to provide policing services to that community. It appears that many of the victims may have been Latino.

Phoenix’ local CBS station highlighted the case of Sabrina Morrison, who at age 13 was raped by her uncle. MCSO told her mother that there was no evidence of a rape. “So I thought she was lying the whole time.”

What the family did not know was the sheriff’s detective sent the rape kit to the state crime lab. Two weeks later, the crime lab sent a notice to the MCSO Special Victim’s Unit confirming the sample contained semen, and asking for a blood sample from the suspect, Patrick Morrison.

Instead of making an arrest, a detective filed the crime lab note and closed the case for four years. It was five years before they arrested Patrick Morrison.

Meanwhile, Patrick continued raping Sabrina, who became pregnant, had an abortion, and was sent to live in a group home for “acting out”. An internal MCSO memo “blames a high case load, says the special victims unit had gone from five detectives to just three, and the detectives left were often called off their cases to investigate special assignments.” The County had to pay $3.5 million on that one, though it’s hard to imagine how any amount of money could truly compensate.

As outrageous as all that seems, county sheriff is an elected position, so as long as Arpaio had the support of the voters of Maricopa County — and vast quantities of outside money to convince those voters — there wasn’t much anybody else could do. Arpaio finally was defeated in 2016.

What he was convicted of. Crimes by law enforcement officers are notoriously hard to prove beyond a reasonable doubt, particularly when those crimes happen inside jails, where the perpetrators themselves control the crime scene. That’s why most of the cases against Arpaio have been tried in civil court, where the standard of proof is lower, but judgments are limited to monetary damages.

The crime Arpaio was pardoned for is criminal contempt of court, which carries a maximum sentence of six months in prison. Convicting him of contempt was somewhat like nailing Al Capone for tax evasion: It was far from the worst thing he did, but at least the evidence was clear. The satisfaction for Arpaio’s victims was mostly symbolic. Finally he had been recognized as a criminal.

That case has its origins in a 2007 civil suit about racial profiling. (Dan Magos, who joined the suit later and testified against Arpaio, describes what it’s like to be stopped and searched without any cause other than your ethnicity.) Vox tells how it became a criminal matter:

In 2011 … the judge in the racial profiling lawsuit issued an injunction preventing Arpaio from apprehending or detaining anyone purely on the basis of being a suspected unauthorized immigrant or turning such people over to federal agents.

In 2013, Arpaio officially lost the civil suit. But by that point, it had become clear that his department hadn’t actually been complying with Judge Murray Snow’s 2011 injunction. They’d continued to engage in immigration “sweeps,” turn people over to ICE (or, when ICE stopped accepting detainees from Arpaio’s deputies, Border Patrol), and hold suspected immigrants in jail after they’d otherwise be released for federal agents to pick them up.

After a series of hearings about the Maricopa Sheriff’s Office’s failure to comply with the 2011 order, Judge Snow cited Arpaio and a handful of his subordinates for civil contempt of court in 2015. Then, in 2016, he asked the US Attorney’s Office to charge Arpaio and three others with criminal contempt — which someone can only be convicted of if it’s shown they were willfully refusing to obey the court order, not just failing to make sure it was obeyed.

What job was he doing? During his recent rally in Phoenix, Trump asked the crowd “Was Sheriff Joe convicted for doing his job?” which strongly yelled its agreement that he was. Former Solicitor General Walter Dellinger tweeted:

Of bad pardons, this is the worst because it is an assault on law itself. Says Joe’s “job” was violating a federal court order.

And The Week ‘s Scott Lemieux commented:

To allow [Arpaio] to go unpunished is to celebrate the arbitrary use of state violence and to show contempt for the legal restraints public officials are supposed to be constrained by.

The best case for the just-doing-his-job point was made by Arizona Republic columnist Robert Robb. The court order didn’t just tell Arpaio to stop racial profiling — which would have been hard to enforce, since individual examples are easy to explain away. Instead, the judge ordered Arpaio to stay clear of the situations that led to abuses.

He ordered Arpaio to get out of the immigration enforcement business altogether. Even with a legal stop, Arpaio was to either charge people with a state crime or let them go. No detaining them or turning them over to federal officials for immigration violations. … Arpaio wasn’t criminally convicted for illegally using race in traffic stops. He was criminally convicted for turning illegal immigrants over to federal officials. And here things get messy.

To me, though, this is no more messy than getting convicted of violating a restraining order in a domestic violence case. Robb’s complaint (or Arpaio’s behalf) is like the guy who says, “They didn’t catch me hitting her again, they just arrested me for walking behind her on the street.”

Even Robb admits:

even if Snow’s order was an overreach, Arpaio’s duty was to obey it while appealing it.

“Constitutional” sheriffs. However, there’s another point of view at issue: Robb is assuming that federal judges have authority over county sheriffs. Not everybody, and not all sheriffs, agree.

One radical right-wing movement that gets little publicity has to do with so-called “constitutional sheriffs“. The idea is that the county sheriff is the only elected law enforcement officer, and so his authority is primary within his jurisdiction, superseding the authority of state and federal officials. So if agents of the FBI or IRS or BLM show up in your town, the county sheriff has the authority to tell them to go away. (So far as I know, no court recognizes this authority.)

If you have run into these folks before, it was probably during the standoff with the Bundy militia at Malheur National Forest last year. The constitutional sheriffs and the Bundies draw from the same well of crazy.

Like Nazis and Klansmen, constitutional sheriffs (and the people who support them) are part of a small radical fringe that Trump panders to and refuses to offend. Often he dog-whistles by using phrases that mean something special to them. The idea that Arpaio was “doing his job” rather than following federal court orders is right up their alley.

Sending a message. We have to wonder why the Arpaio pardon happened when it did, because the case was not in any sense ripe. Arpaio still had options to appeal his conviction. If the Supreme Court agreed with Robert Robb, that the order Arpaio disobeyed was an over-reach by the judge, they might have thrown the whole thing out. Even if the conviction stood, he hadn’t been sentenced yet, and might not have gotten jail time at all. (Since he isn’t sheriff any more, courts might not be motivated to teach him a lesson.)

So Trump might have gotten the result he wanted just by watching and doing nothing. If not, he could have intervened down the road, before Arpaio began serving his sentence. So why now?

One obvious implication is that the pardon is meant to send a message: to Trump’s base, obviously, but also to other law enforcement officers, to the courts, and to Trump associates who might be tempted to cut a deal with the Mueller investigation.

Law enforcement people have to see this as part of a package with other messages: Trump’s speech urging police to be “rough” with Hispanic gang suspects, his even-handed approach to Nazis and the people who protest against Nazis, and his unwillingness to speak out against the bombing of a Minneapolis mosque.  Put together, those all say: Violence is OK, as long as people Trump likes are doing it to people Trump doesn’t like. In particular, if you are in law enforcement and feel like violating the civil rights of non-whites or non-Christians, don’t worry; the President has your back.

Judges have to see the pardon as an attack on the independence of the judiciary. Contempt of court is the only real enforcement mechanism behind judicial injunctions. If a pardon is an option for local officials who follow the Trump agenda in defiance of court orders, that shakes up the balance of power between the judicial and executive branches of government.

Finally, it seems more and more apparent that the Mueller investigation is closing in on Michael Flynn, Paul Manafort, and maybe some lesser figures associated with them. If this were an investigation into a Mafia family or a corrupt corporation, investigators would be expecting to flip one of these underlings against the guy at the top. In this case, however, the guy at the top wields the pardon power. Trump just reminded everybody that he isn’t afraid to take heat for using it.