In August, 2017, President Trump pardoned former Maricopa County (Arizona) Sheriff Joe Arpaio, who a federal court found guilty of criminal contempt for intentionally violating numerous court orders in a civil rights lawsuit. In so doing, President Trump pardoned a flagrant and repeated violator of Latina/o civil rights and sent a deeply troubling message to the entire nation.
For decades, the controversial sheriff’s law enforcement methods had struck justifiable fear into the hearts of immigrants and U.S. citizens of Mexican ancestry. Years ago, the Department of Justice concluded “that discrimination against Latino persons exists in a wide range of [Maricopa County Sheriff Office (MCSO)] practices. [It] obtained compelling evidence showing that MCSO deputies routinely stop Latinos at much higher rates than similarly-situated non-Latinos . . . .” Letter from Thomas E. Perez, Assistant Attorney General, to Bill Montgomery, County Attorney, Maricopa County, Dec. 15, 2011.
The conduct of former Sheriff Arpaio is part of a long, if not illustrious, history of discrimination in Arizona. The “Bisbee Deportation” of Mexican workers from the state in 1917 is an infamous civil rights milestone. Unfortunately, discrimination against Latina/os in Arizona remains to this day. The Tucson public schools continue to operate under a consent decree entered in a school desegregation case. A federal court this year found that the state acted with a discriminatory intent in eliminating Mexican American Studies from the public schools and thus violated the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. A series of immigration enforcement, English only, and other laws — some of them vetoed by the governor, others struck down by courts — targeted Latina/os in the state.
Defeated for re-election in 2016, Sheriff Arpaio had made a name for himself in unabashedly focusing on Latina/os in ostensibly enforcing the U.S. immigration laws. Time and again, he stated unequivocally that he would continue to do just that – despite being ordered by the courts to end the discrimination. Arpaio consistently showed cruelty and insensitivity toward inmates under his legal protection. He, for example, made detainees wear pink underwear and suffer the outdoors in scorching Arizona summer heat. Arpaio forced undocumented immigrants in custody to live in a segregated “tent city” that Arpaio himself bragged was a “concentration camp.”
In 2010, the Arizona legislature passed S.B. 1070, a law that Arpaio championed. Section 2(B) of the law, the “Show Your Papers” provision, generated great fear in the Latina/o community; it gave state and local law enforcement officers carte blanche to question people about their immigration status and to expand the already rampant racial profiling of Latina/os. With anti-Latino sentiment lurking in the background, the Arizona legislature passed S.B. 1070 with little, if any, concern for the civil rights of Latina/os. The U.S. Supreme Court in Arizona v. United States(2012) in large part struck down S.B. 1070 as unconstitutional.
After a trial in 2013 that saw overwhelming evidence of racial discrimination, a federal court in Melendres v. Arpaio found that the Maricopa County Sheriff’s Office led by Arpaio engaged in a pattern and practice of racial profiling of Latinos in criminal and immigration enforcement. However, that was not the basis for Arpaio’s criminal conviction. The contempt charge instead resulted from the court’s finding that Arpaio for years had intentionally violated numerous court orders designed to end the discriminatory practices of the Sheriff’s Office. The court held a trial in 2017 affording Arpaio a chance to rebut the charges that he had failed to end the discrimination and was not in contempt of court orders. He failed and the federal judge found that Arpaio simply refused to comply with the court orders and his sheriffs continued to discriminate.
In some ways, Joe Arpaio is the modern incarnation of Birmingham, Alabama’s infamous police chief Bull Connor, an ardent opponent of integration in the 1950s and 1960s who directed fire hoses and violence at civil rights marchers. Boldly defying the civil rights laws, segregationists in the Jim Crow era, like Arpaio today, had to be schooled on the rule of law. In one famous example, President Eisenhower in 1957 deployed federal troops to enforce the Supreme Court’s decision outlawing segregated schools in Brown v. Board of Education (1954). Only then could African American students attend Little Rock Central High School in Arkansas.
Ironically enough, in advocating aggressive enforcement of the U.S. immigration laws, Trump repeatedly emphasized the need to follow the rule of law. But President Trump’s pardon of Arpaio for flagrant violations of the civil rights laws is wholly inconsistent with any conception of the rule of law.
Presidential pardons by their nature are controversial, with President Ford’s pardon of President Nixon for his role in the Watergate cover-up a famous example. Still, in light of Arpaio’s controversial record, the fact that his pardon for a criminal contempt conviction provoked a firestorm of controversy should not be surprising. Still, an American President never has pardoned a person who repeatedly, willfully, and intentionally refused to comply with court orders aimed at ending mass violations of the civil rights of racial minorities.
Arpaio in effect took the view that the rule of law did not apply in Maricopa County, Arizona. This explains why Attorney General Jeff Sessions reportedly told President Trump that he could not drop the charges against Arpaio. And it explains why Republicans and Democrats alike have condemned the Arpaio pardon.
President Trump justified the pardon by saying that the sheriff “was just doing his job.” However, Arpaio’s “job” as a law enforcement officer does not include breaking the law or engaging in a pattern and practice of racial discrimination against Latinos. Nor does Arpaio’s job as sheriff include intentionally violating court orders. The efforts to nullify a court order vindicating the civil rights of vulnerable minorities are precisely the kinds of unlawful actions of the Southern segregationists of yesterday. In important respects, the Arpaio pardon is akin to jury nullification popular in the days of Jim Crow when juries, whatever the evidence, simply would not convict whites – including police — of killing African Americans.
We live in a time of deep political division. The nation has seen civil unrest unfold as violent clashes take place between white supremacists and counter-protesters. President Trump and his followers have inflamed passion by claiming that immigration laws must be enforced with impunity, whatever the civil rights consequences. The pardoning of Joe Arpaio is entirely consistent with the enforcement-at-all-costs mentality and the sacrificing of Latina/o civil rights for immigration enforcement.
In pardoning Arpaio, the president demonstrates that, despite his stated commitment to enforce the immigration laws at all costs, he is not equally committed to enforcement of civil rights laws. That lack of commitment also can be seen in his response to the troubling recent clashes in Charlottesville. President Trump has made the political decision, consistent with the one to dismantle the Deferred Action for Childhood Arrivals program, to side with those opposed to federal civil rights law — and against the rule of law. That is not the message that the nation needs at this time.
Kevin R. Johnson is Dean of the University of California, Davis School of Law, the Mabie-Apallas Professor of Public Interest Law, and Professor of Chicana/o Studies. Dean Johnson’s latest book is Immigration Law and the US-Mexico Border (2011). Dean Johnson blogs at ImmigrationProf, and is a regular contributor on immigration on SCOTUSblog.