Trump Pardons Sheriff Joe Arpaio for Defying a Court Order Against Racial Profiling (2017)

What happened

In 2007 a class of Latino residents of Maricopa County, Arizona sued Sheriff Joe Arpaio, alleging "illegal, discriminatory and unauthorized enforcement of federal immigration laws against Hispanic persons," including the profiling of Latino motorists. In 2011 Judge G. Murray Snow preliminarily enjoined Arpaio and his office "from detaining any person based on knowledge, without more, that the person is unlawfully present within the United States." In 2013 he issued a permanent injunction barring the office from detaining Latino vehicle occupants on that basis alone (Ninth Circuit opinion). NPR reports that the office kept detaining people for about 18 months after the 2011 order and that in May 2013 Judge Snow ruled it had engaged in racial profiling.

In 2016, after extensive hearings, Judge Snow found that Arpaio had "intentionally disobeyed" the injunction, and that he "did so based on the notoriety he received for, and the campaign donations he received because of, his immigration enforcement activity." Arpaio conceded civil contempt. Judge Snow referred him for criminal contempt.

On July 31, 2017, after a five-day bench trial prosecuted by the Department of Justice, Judge Susan Bolton found Arpaio guilty of criminal contempt under 18 U.S.C. §401(3). She found he "willfully violated the order by failing to do anything to ensure his subordinates' compliance and by directing them to continue to detain persons for whom no criminal charges could be filed" (NPR). The offence carried up to six months in jail. Sentencing was set for October 2017.

Arpaio was never sentenced. On August 25, 2017, President Trump granted him "a full and unconditional pardon" for the contempt "and for any other offenses under Chapter 21 of Title 18 ... that might arise, or be charged, in connection with Melendres v. Arpaio" (Ninth Circuit opinion). The White House statement praised Arpaio's "life's work of protecting the public from the scourges of crime and illegal immigration" and called him a "worthy candidate for a Presidential pardon."

Judge Bolton dismissed the case but refused to vacate the guilty verdict. On February 27, 2020 the Ninth Circuit affirmed, holding that the verdict had no legal consequences that would justify vacatur.

Legal analysis

The underlying violation. The federal courts found, after full proceedings, that the sheriff's office engaged in racial profiling and that Arpaio deliberately defied an injunction protecting Latino residents from unlawful detention. Those findings rest on the Fourth and Fourteenth Amendments and correspond to the ICERD and ICCPR guarantees against discriminatory and arbitrary detention.

What the pardon did. Criminal contempt is the judiciary's own sanction for an official who refuses to obey its orders. Pardoning a public official for wilfully disobeying an order that protects others' constitutional rights, before sentencing, signals to other officials that defiance can be excused by the executive. It also removes the effective remedy the ICCPR (Art. 2(3)) and ICERD (Art. 6) require against discriminatory treatment by public authorities.

Not an international crime. None of the Article 6, 7 or 8 acts is in play. Discriminatory detentions by a county sheriff's office, though adjudicated as unlawful, are not shown to be part of a widespread or systematic attack on a civilian population within Article 7.

Strongest defence argument. The Constitution gives the President power to grant pardons for "Offences against the United States," and neither the district court nor the Ninth Circuit treated the pardon as invalid: the courts dismissed the prosecution on the strength of it. On that view the pardon was a lawful exercise of a plenary power. This settles the pardon's validity but not its effect: an official found to have deliberately defied a civil-rights injunction faced no criminal sanction, and the injunction's beneficiaries lost the protection that sanction provided.

Why this grade

Critical. The rubric's critical anchor names defiance of binding court orders. Here the President used the pardon to nullify the judiciary's response to an official's adjudicated, wilful defiance of an order protecting a minority group's constitutional rights. That is a structural harm to judicial enforcement, consistent with the archive's grading of other pardons that undo accountability for rights violations. No international crime is in play, so no evidence classification is assigned.