Former Sheriff Joe Arpaio's tactics pursuing undocumented immigrants in Arizona were often deemed extreme and inhumane by outside observers. The judicial system also ruled them illegal: Arpaio was convicted of criminal contempt related to his treatment of undocumented immigrants. So it is little surprise that President Trump's pardon brought on intense criticism from civil rights groups, Democrats in general, as well as both of Arizona's Republican senators. And with a recent judge's refusal to expunge Arpaio's court records, despite his presidential pardon, the former sheriff may not escape a permanent criminal record.
U.S. District Court Judge Susan Bolton ruled Thursday that Arpaio's presidential pardon did not translate to an entitlement to alter court records. Arpaio's lawyers had argued that his conviction should essentially be erased. Bolton disagreed, writing in her ruling:
The power to pardon is an executive prerogative of mercy, not of judicial record keeping. To vacate all rulings in this case would run afoul of this important distinction. The Court found Defendant guilty of criminal contempt. The President issued the pardon. Defendant accepted. The pardon undoubtedly spared Defendant from any punishment that might otherwise have been imposed. It did not, however, "revise the historical facts" of this case.
Arpaio's lawyers have already filed to appeal Bolton's ruling. According to Arizona Daily Star, one of his attorneys say that his criminal conviction could be used against him in a criminal or civil case in the future.
Professor of Law at the University of Missouri, Frank Bowman, tells Bustle that the judge is "correct that she need not expunge the rulings made up to the point of the issuance of the pardon." As to the issue of Arpaio carrying a criminal record going forward, Bowman says:
That's actually a more complicated question than it seems. If asked in the future, Arpaio would certainly have to say that he had been charged with a crime. If asked whether he was convicted, technically he'd have to say he was convicted and then pardoned. But those are really semantic quibbles. The main point is that the pardon wipes out any legal effect of the conviction. Legally, it is as if there had been no conviction.
While Bowman has argued that Trump's pardon of Arpaio amounts to an impeachable offense, he does not think there are sufficient legal grounds to overturn the pardon itself. "As for the arguments that Arpaio's pardon is either reviewable by the judiciary as a violation of due process or void as a violation of separation of powers, I think they are both ingenious dead ends," Bowman says. "The constitution gives the president the power to pardon all federal offenses excepting those involving impeachment. Period."
Many civil rights organizations denounced Trump's pardon as a dangerous precedent offering protection to people who openly violate the basic rights of others and ignore court orders. In their original statement on Arpaio's pardon, the United States Council on Civil Rights wrote: "Pardoning a person convicted of deliberately and flagrantly defying a federal court order over a sustained period of time undermines the rule of law in this country by signaling that supporters and allies of the President who violate civil rights and ignore orders from federal courts will not be held accountable as our system of justice requires."
Presidential pardons are far reaching, and virtually exempt from recourse. When a POTUS issues a pardon, it returns that person to the same state of innocence they possessed before committing the crime. And while most pardons are examined by the Justice Department, presidents will sometimes act on their own. Such was the case in Trump's pardon of Arpaio.
Civil rights groups immediately spoke out against clemency for Arpaio. The American Civil Liberties Union stated Trump's "pardon of Arpaio is a presidential endorsement of racism."
Neither shy with the press nor reticent about his devotion to detaining undocumented immigrants, Arpaio had become a celebrity in his own right long before his conviction. In fact, Arpaio often seemed to long for the spotlight on his tactics, forcing undocumented immigrants into publicity stunts that demanded news coverage.
He ordered the construction of a barbed-wire enclosure that housed inmates in tents, despite temperatures of 135 degrees. Arpaio put a big sign over the open-air prison that read "Vacancy." Boasting in 2009 to William Finnegan at The New Yorker, Arpaio said it cost "more to feed the dogs than the inmates." He was referring to the reduction of three daily meals to two at his prisons.
Arpaio restricted prison television programming to C-SPAN, The Food Network, and The Weather Channel. When a reporter questioned Arpaio on the why behind The Weather Channel, Arpaio replied, "So these morons will know how hot it's going to be while they're working on my chain gangs." He allowed the Food Network to remind inmates of their own hunger.
Arpaio mandated that all prisoners wear pink underwear. He reportedly re-instituted chain gangs, including one for juvenile prisoners, and the first female chain gang ever.
In 2001, Arpaio took down one of his jail webcams. Its live stream of female inmates using the toilet caused enough of a public outcry to force a rare concession from "America's Toughest Sheriff."
Arpaio's popularity eventually wanted. After 24 years serving as Maricopa County's sheriff, Arpaio lost the 2016 election to a Democratic challenger by ten points.
Two weeks before his ballot box defeat, Arpaio was charged with criminal contempt of court. The case had begun in 2007 with a class action lawsuit against Arpaio, and a subsequent 2011 order from Judge G. Murray Snow to stop profiling Latino drivers. According to a 2013 ruling from Snow, "Arpaio's office had engaged in racial profiling" for at least 18 months.
Judge Bolton's refusal to alter court records will leave Arpaio's contempt of court charge on the books, at least for now. He may not be headed for prison, but it looks less certain today that Arpaio will collect a clean bill of legal innocence.