Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, August 28, 2017

The pardon of ex-Sheriff Joe Arpaio

The other day, on Twitter, my friend (and fellow Prawfsblogger) Daniel Rodriguez tweeted a plea ("[W]here is the Holy Father where you need him?")  for Pope Francis to weigh in on the current President's decision to pardon former Maricopa County Sheriff Joe Arpaio of his criminal contempt conviction.  I'm not sure, actually, I want the Pope to weigh in on specific matters like this, but put that aside.  A few, decidely not-papally-endorsed thoughts:

First, I take it that there is no "Catholic" position on the questions (a) whether our Constitution gives the President the power to grant this pardon and (b) whether our Constitution authorizes federal judges to review this (or any other) pardon.  I assume the answer to (a) is "yes" and the answer to (b) is "no."  

Second, I believe, and have often said publicly, that executives should use their pardon and commutation powers, to correct injustices or to show mercy, more often and more generously than they do.  Yes, the power has often been abused (e.g., Marc Rich should not have been pardoned, in my view, and Chelsea Manning's sentence should not have been commuted when and as it was), but it should be prudently and meaningfully exercised.  

Third, it seems to me that the pardon of ex-Sheriff Arpaio is a gross misuse of the pardon power.  (My family moved to Arizona in the mid-1980s, and I'm very familiar with Arpaio's record, which is not "conservative" so much as it is petty, cruel, grandstanding, and ugly.)  The pardon, like the President's responses to the events in Charlottesville, sends a terrible message and reveals (or, rather, confirms) the President's unfitness for the office he holds.  The remedies for this abuse are political (e.g., public criticism, elections, impeachment, etc.) not judicial, but an abuse it still is. 

Fourth, we should distinguish entirely warranted criticisms of Arpaio and his record from broader questions about the content and enforcement of immigration law and policy.  One can (easily) think that Arpaio's record is indefensible and that it is not racist or contrary to Catholic Social Teaching to (reasonably and humanely) enforce borders and immigration laws.  Of course, to the extent this latter position is identified with Arpaio and his record, it will lose credibility in the minds of many.

So, when the Holy Father calls, Dan, that's what I'll say!  =-)


Garnett, Rick | Permalink