On Monday, we filed a friend-of-the-court brief asking a federal judge in Arizona to reject the presidential pardon of former Maricopa County, Arizona sheriff Joseph Arpaio as unconstitutional and invalid. The brief, filed on behalf of Free Speech For People, Professor Martin Redish and the Coalition to Preserve, Protect, and Defend, follows our August 29 letter to the Department of Justice urging it to oppose the pardon on the ground that it violates the constitutional guarantee of due process of law.

Background

For over 20 years, Arpaio ran the Maricopa County Sheriff’s Office with shocking cruelty and lawlessness, especially against Latinos. He bragged that one of his jails was “a concentration camp.” On the streets, his office engaged in rampant unconstitutional policing. In 2011, a federal judge issued an injunction in a lawsuit challenging the practice of detaining and searching people for “driving while Latino.” The judge found evidence that the Sheriff’s Office engaged in racial profiling and stopped and detained Latinos Latinos just to determine their immigration status. He ordered the Sheriff’s Office to cease detaining people without reasonable suspicion of a crime.

Arpaio flagrantly ignored the injunction, and in May 2016, the judge found him in civil contempt of court. This past July, a second federal judge found him in criminal contempt, which can be punished by imprisonment. Three weeks later, Trump pardoned him. Arpaio then asked the court to dismiss and vacate his conviction.

The pardon violates the Due Process Clause

As explained in our brief, the presidential pardon power is limited by the Due Process Clause of the Fifth Amendment to the United States Constitution, which provides that no person may be “deprived of life, liberty, or property, without due process of law.” Due process requires that, when a government official is found by a court to be violating individuals’ constitutional rights, the court can issue effective relief (such as an injunction) ordering the official to cease this unconstitutional conduct. And for an injunction to be effective, there must be a penalty for violation of the injunction—principally, contempt of court.

If the President can employ his pardon power to relieve government officers of accountability and risk of penalty for defying injunctions imposed to enforce constitutional rights, that action will permanently impair the courts’ authority and ability to protect those inalienable rights. The result would be an executive branch freed from the judicial scrutiny required to assure compliance with the dictates of the Bill of Rights and other constitutional safeguards. That result is constitutionally unacceptable.

Next steps

The court has scheduled a hearing on Arpaio’s request to dismiss his conviction for October 4, at the federal courthouse in Phoenix.

 Download our amicus brief [PDF]