When he defended statues of Confederate heroes, President Trump promoted symbols of racism as they existed more than 150 years ago, embedded in the institution of slavery. By pardoning former Maricopa County Sheriff Joe Arpaio on Friday, Trump defended racism as it exists today, embedded in the mechanism of criminal law.
Let’s not forget exactly why Arpaio was in trouble and awaiting sentencing before a federal court. In 2011, the Department of Justice issued a report finding that his office displayed “a pervasive culture of discriminatory bias against Latinos” and that Arpaio was a primary cause of the problem. Two years later, a federal judge found that Arpaio’s office had engaged in systemic racial profiling and ordered specific remedies. Arpaio did not change his practices and in October 2016 a judge found him in criminal contempt — a charge that can result in a six-month jail sentence.
It’s not surprising that Trump would have a certain affinity for Arpaio. Both are brash showmen, were early proponents of the false claim that President Obama was not born in America, and believe in “law and order” so long as it applies to other people. They even have a common enemy in Arizona Sen. Jeff Flake. Trump tweeted Flake was “WEAK on borders, crime and a non-factor in Senate. He’s toxic!” Meanwhile, Arpaio engaged in an odd attack on Flake’s son and daughter-in-law, charging them with animal cruelty when an air conditioner failed in a kennel — charges dropped for lack of evidence.
The role of Confederate monuments is subject to a vigorous, worthwhile debate, centered on the context and value of those symbols. Few people, though, argue the men they depict should be celebrated because of their repugnant views on race. We have evolved as a moral nation beyond any belief there is value in the brutality of slavery.
What we have not evolved beyond is a system of policing that too often treats people differently based on race and ethnicity. That problem has been a mainstay of the news the past few years, driven by deadly shootings, racial disparities and a continuing fear in minority communities rooted in an often-reasonable belief police are more likely to hurt them than help them. And in the midst of this, Trump singles out for favor a man facing sentencing for exactly that wrong.
Much as Arpaio did violence to justice, Trump did violence to the idea of clemency by issuing a pardon. The contrast with President Obama could not be more stark. Obama used clemency to free hundreds of deserving long-term drug prisoners, many of whom were victims of an unfair crack cocaine sentencing scheme that led to the targeting and over-punishment of minority members. These were the least powerful people in our society, many of them older men and women locked up for decades for relatively minor crimes. In contrast, Trump has pardoned a powerful person for the abuse of that power.
“Law and order” should at the very least mean following the rules. With the Arpaio pardon, Trump didn’t even try to follow the rules (though the Constitution does give Trump that ability). There is an established process for seeking clemency that begins with filing a petition. But rather than some citizen seeking mercy, Trump sought out someone he wanted to reward. Meanwhile, more than 11,000 people who followed the rules and did the work to file a thought-out petition still await a decision.
Perhaps more importantly, the Arpaio pardon violated a bedrock rule for recent clemency considerations: to be successful, an applicant must express remorse for his acts. I began a clemency clinic in 2011 and often distinguish it from the Innocence Project by saying we run the “Guilty Project.” The Department of Justice spells this out explicitly in its instructions for petitioners, saying that a petitioner “should be genuinely desirous of forgiveness rather than vindication.” Arpaio is a lot of things; contrite is not one of them.
Symbols matter. When we think of our presidents at their very best — Reagan at the Berlin Wall, for example — they often use symbolism to shape our national aspirations. Clemency itself reaches few people and is largely symbolic, a show of mercy to signify those who are deserving. It is best used to honor those who have suffered unduly and redeemed themselves, or to work toward the healing of a national wound. The Arpaio pardon does the opposite; it honors someone who hurt others unduly and exacerbates the divisions in our country.