America’s Most Lawless Lawman
The racial profiling order Sheriff Arpaio willfully violated may not be the only federal court order he and his men have ignored or undermined.
By Brennan Center fellow Andrew Cohen
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.
Even if federal prosecutors in Arizona decline to charge Maricopa County Sheriff Joe Arpaio with criminal contempt for willfully violating a court order there is delicious irony in the fact that America’s so-called “toughest” lawman now has been exposed as a serial violator of the rule of law. No one, not even Donald Trump’s favorite cop, gets to choose which federal court orders to obey and which ones to ignore.
There is even more irony in the fact that the federal trial judge Arpaio deliberately disobeyed, U.S. District Judge Murray Snow, is a conservative Republican, a devout Mormon, and an appointee of President George W. Bush. Arpaio’s lawyers and political cronies may be able to argue that Judge Snow has a misguided version of events (even though he held extensive hearings on the topic). But no one can argue that the judge is a man with an ideological vendetta against the symbol of Republican immigration and law enforcement policies.
Indeed, the greatest irony of all here may be that it is Arpaio’s unconstitutional policy of racial profiling in Maricopa County that ends up making him some sort of convict (the contempt charge, if successful, could result in a prison term). He’s up for re-election again this November and he may be forced to ask voters for their support while under federal indictment. The idea of this sheriff, who has made a career out of gleefully discriminating against Latinos, complaining about being a victim of discrimination under color of law will be rich theater to follow from now until November.
The story of how this all came to be would be sorry enough if it were limited to Arpaio’s ugly reaction to the racial profiling ruling against him and his deputies. Don’t forget, Arpaio was caught in this case using not one but two investigators to spy on the judge and the judge’s wife (one investigator was privately hired, the other was evidently paid for out of taxpayer funds). In these circumstances, the sheriff is lucky he is not already in the custody of federal marshals.
But the story of official lawlessness in Maricopa County goes deeper than this weekend’s headlines or the criminal contempt narrative. The racial profiling order Arpaio willfully violated may not be the only federal court order he and his men have ignored or undermined. There is also pending in federal court in Arizona today a motion about the deplorable conditions of confinement for mentally ill prisoners languishing in Maricopa County jails, over which Arpaio has control.
Earlier this year, the ACLU asked a federal trial judge (not Judge Snow) to force Arpaio’s jailors to abide by a 2008 order requiring improvements in county jails. The allegations in the latest court filings are grim — dozens of inmates, clearly mentally ill, being deprived adequate care and treatment — but they follow familiar patterns. Arpaio and company are deemed to be violating federal law. They act defiantly and dissemble and refuse or fail to comply with the letter and spirt of a federal court order. This forces their legal adversaries to go back to court to get the relief they had been promised by a judge.
In the meantime, of course, the men and women suffering in jail continue to suffer while Arpaio dodges, just as the men and women who were subject to illegal racial profiling in Maricopa County continued to be subject to it even after Judge Snow deemed it illegal in 2011. You can’t have a law-and-order candidate without law. And you can’t have law if the people who are subject to it, especially public servants, decide for themselves which provisions they’ll submit to and which they won’t. Joe Arpaio has fought for decades to be a poster boy for strict enforcement of the law. Turns out he’s a poster boy for the worst kind of lawlessness, the kind that walks around with a badge.
Andrew Cohen is a fellow at the Brennan Center for Justice. He is also the Commentary and Analysis Editor at The Marshall Project, legal analyst for 60 Minutes, and chief analyst and legal editor for CBS Radio News. He has won a Murrow Award as one of the nation’s leading legal analysts and commentators. He is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America. Follow Cohen on Twitter at @JustADCohen.