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Liberals Discover Problems with Clemency

For years on this blog, I have campaigned against scattershot clemency for federal felons. While there is without doubt a place for clemency, and the Framers were wise to make it available to the Executive Branch, it can also be abused  --  as my liberal critics suddenly discovered over the weekend.  This was after years of their telling us that America needs to be a land of mercy and second chances, that we're too quick to look to punishment rather than understanding, there's an inherent political influence in prosecution and sentencing, and that older people in particular are good bets to remain in (or to be returned to) the community, because they're unlikely to re-offend and, well, simply because it's inhumane to incarcerate the elderly.

If anyone heard liberals repeat a single word of this years-long refrain in connection with Sheriff Joe, please quote it and link to it.  I sure haven't.
I'm not going to get into the merits of this individual pardon.  My general stance on Presidential clemency has been consistent, however:  It should reserved for exceptional cases of clear injustice, considered one case at a time.  I thus publicly opposed a pardon for Scooter Libby, even while arguing that his 30 month prison sentence was excessive for a non-violent, non-drug first offender of his age (then 56 if I recall correctly).  I also wrote numerous posts opposing President Obama's mass commutations of hard drug dealers, commutations that I believed (then and now) were heavily influenced by his political views of criminal justice.

I will leave it to readers to judge whether Sheriff Joe meets the general criteria for clemency I think are proper.

First, though, let me try to wipe away the baloney.  What the present "pardon" debate is actually about is illegal immigration.  The Sheriff was known principally for taking harsh measures to curb it  --  his opponents say it went beyond harsh to cruel and racist. Those most eager to curb illegal immigration have taken a generous view of the Sheriff; those on the other side have criticized him in uncompromising terms, criticism that long pre-existed his pardon.

There's one other giant piece of baloney floating through this debate:  If Sheriff Joe were a minority female, or were transgender, does anyone think the level of criticism we're heard would be the same?  Let me ask that a different way:  What was the level of criticism in the mainstream press when State's Attorney Marilyn Mosby, an African American, brought a basket full of felony charges against six Baltimore police officers, and convicted none of anything?  Answer: None whatever.  Instead, she was  praised by the Left for "sparking a national conversation" about abusive policing.

The "national conversation" virtues of Sheriff Joe appear to be hiding behind the curtain.

I'll just quickly note some of the arguments we have heard on both sides of Sheriff Joe, more or less without comment.

From those on Sheriff Joe's side:  He was one person who actually did something about illegal immigration rather than just talk about it; he wasn't hoodwinked by the criminals-as-victims theory; he asked for but was denied a jury trial in his politically-charged contempt case; and the man is 85 years old.  (OK, I have to make a comment about that last one.  In forty years as a lawyer, I have never heard a liberal oppose clemency for an 85 year-old).

From those opposing Sheriff Joe:  His treatment of prisoners was demeaning at best (pink underwear?); he was brutal and lawless; he was never entitled to a jury trial to begin with because the maximum sentence for contempt is six months; he more-or-less admitted his guilt but claimed, unconvincingly, that he didn't understand the court's order; he hasn't been sentenced anyway, so the judicial system was never given a full chance; and if punishment for contempt of court can be wiped away by the executive branch, right there we have a unique set of separation-of-powers problems (problems that are the mirror image, I might add, of the separation-of-powers problems we had when the last President used his clemency power to get the last laugh at a Congress that wouldn't buy his go-softer-on-druggies legislative package called "sentencing reform").

As Kent points out, the WSJ believes that the pardon was misguided. 

I'll add one last word.  It has been reported that, before issuing a pardon, the President asked Attorney General Sessions to drop the case, and that Sessions declined.  This is the same Jeff Sessions the President lambasted for recusing himself, on ethics grounds, from the Russia probe, thus paving the way for the problematic appointment of Special Counsel Bob Mueller.  And yes, that's the same Jeff Sessions who was acidly criticized at his confirmation for his supposed "lack of independence" from the President.

If you're waiting for Sessions' critics to apologize for their gigantic fibs about that "lack of independence," you'll be waiting a long time.

N.B.  If there are comments, please confine them to the subject of this post, to wit, "Liberals Discover Problems with Clemency."  This is not the place for camaign pieces about Trump Is Wonderful or Trump Is Awful.  

UPDATE:  National Review has these thoughts on the pardon, which (perhaps not surprisingly) are similar to those expressed above:

We are mindful of the hypocrisy of the Left regarding abuse of the president's constitutional pardon power. President Clinton put it on sale for the benefit of donors and cronies. President Obama used it to effectively rewrite Congress's narcotics statutes, for the benefit of drug felons and in circumvention of his duty to execute the laws faithfully. Both commuted the sentences of anti-American terrorists from the FALN and the Weathermen. These were disgraceful acts.

But that past doesn't make Trump's pardon any less objectionable. Trump acted for the benefit of a political crony, just like Clinton. He did it -- just like Clinton -- outside the Justice Department's pardon process. While presidents have the authority to go around DOJ, the regular process is in place to ensure that presidents make fully informed pardon decisions. To short-circuit the standard procedure is to consciously avoid facts that might show that clemency is unwarranted.


It must be stressed that the president has the power to commute sentences while leaving convictions in place. If Trump believed that the 85-year-old Arpaio's age, honorable military service, and long law-enforcement career militated in favor of clemency, he could have set aside any federal sentence imposed on the former sheriff. To the contrary, Trump's issuance of a full pardon effectively endorses Arpaio's misconduct.


I'll add a few points:

(1) Arpaio asked for a jury trial and it was not afforded--while Arpaio may not have had the absolute legal right to a jury trial, the lack of a jury trial here is a very sound basis for Trump to have acted.

(2) Relatedly, this case was about the judiciary evaluating an alleged affront to its power all by its lonesome.

The liberal hypocrisy here is stunning. And, it must not be forgotten that Eric "Marc Rich" Holder was given a free pass by the media and Democrats for his disgraceful actions.

Why National Review chooses to get the vapors over this pardon is beyond me.

National Review is presently a platform for 'never Trumpers,'
i.e. V. I. Lenin's "useful idiots" of today.

Decencyevolves: your summary of the "baloney" justifying the criticism of the pardon seems unfair. It's worth reviewing Arpaio's history of genuinely outrageous conduct, summarized in this article


"Many of Arpaio’s worst abuses are documented in a 2011 Justice Department report on the sheriff’s office. At the time, a DOJ expert said that Arpaio oversaw the worst pattern of racial profiling he had ever seen. The agency found that Arpaio’s deputies had consistently targeted and harassed Latinos, pulling them over far more frequently than non-Latinos. Arpaio’s office initiated “immigration-related crime suppression activities” when 911 callers complained about Spanish speakers and individuals with “dark skin.” It conducted immigration sweeps that routinely violated the Fourth Amendment. And in many instances, officers detained lawful Latino residents for hours, days, or weeks based on fabricated or exaggerated charges.

Those individuals unfortunate enough to languish in the county jails, which Arpaio’s office operated, suffered grievously. Arpaio’s deputies allegedly put Spanish-speaking inmates in solitary confinement to punish them for not understanding English. They also refused to accept requests for basic daily services that were written in Spanish and pressured Latino inmates into signing deportation forms. The vast majority of inmates in these jails were Latinos detained on suspicion of being undocumented. Jail staff regularly referred to Latino inmates as “wetbacks,” “Mexican bitches,” and “stupid Mexicans.” A federal judge ruled twice that Arpaio’s deputies unlawfully deprived detainees of food and medical care, and tortured inmates who were on psychotropic medication by locking them in unbearably hot solitary confinement cells, which caused an increased risk of heat-related illness. The 9th U.S. Circuit Court of Appeals affirmed that these practices violated the Eighth Amendment’s bar on cruel and unusual punishment.

Arpaio, who once acknowledged in court that he did not know the contents of the 14th Amendment, specialized in this sort of heat-based punishment. He set up “tent cities” to house overflowing jail population and boasted that they were actual “concentration camps.” In the summer, the heat in these facilities reached 145 degrees Fahrenheit; inmates’ shoes literally melted. Arpaio told the inmates not to complain, declaring: 'It's 120 degrees in Iraq and the soldiers are living in tents and they didn’t commit any crimes, so shut your mouths.'

In fact, many of these inmates had not yet been convicted of a crime—but Arpaio treated all detainees as though they had already been found guilty. He introduced a number of schemes designed to humiliate inmates, including chain gangs for women and juveniles, and a live webcast that broadcast video of jailed pretrial detainees on the internet. One camera captured the toilet in the women’s holding cell. The 9th Circuit ultimately blocked these webcasts, but not before millions of people had tuned in.

Arpaio also worked with former Maricopa County Attorney Andrew Thomas to investigate and prosecute their political enemies. Together, Arpaio and Thomas went after judges who ruled against them, attorneys who opposed them in court, and even a journalist who covered them critically for a local paper. The county wound up paying out tens of millions of dollars in settlement money to Arpaio and Thomas’ victims, and Thomas was disbarred. Arpaio famously investigated President Barack Obama’s birth certificate, as well, and concluded that it was forged.

In 2012, the Justice Department issued a new civil rights complaint alleging that Arpaio’s obsession with Latinos diverted his office’s attention from violent crimes. In particular, his office ignored or inadequately investigated more than 400 alleged sex crimes, including at least 32 reported child molestations involving victims as young as 2 years old. Most of the victims of these reported crimes were undocumented immigrants and their children.

Instead of following up on these reports, Arpaio’s office conducted immigration raids and traffic stops that a federal judge found violated the constitutional rights of Latinos. The judge ordered Arpaio to halt his office’s illegal practices, but he refused and was held in civil contempt of court. In the 2016 election, voters ejected him from office. Then, in July, a federal judge found that, as sheriff, Arpaio had continued to violate the constitutional rights of immigrants after he had been ordered to stop and held him in criminal contempt. He faces up to six months in jail."

If law and order matter to you, official lawlessness and disorder of this kind should cause you to criticize the pardon of Arpaio without any admission of guilt, without serving a day of any sentence and outside the DOJ pardon process.

1. I appreciate your staying on topic.

2. A Slate report about the Obama Administration's evaluation of Sheriff Joe has the same fair-mindedness to it as a NYT report of Erwin Chemerinsky's evaluation of Ted Cruz.

3. By definition, ANY pardon is going to cut a break to people who did awful stuff. The people facing criminal punishment in federal court generally are not Mr. Nicey.

4. The point of pardons is, however, to look beyond the crime to all the things liberals have been high-handedly lecturing us about for years: Mercy, forgiveness, moving away from "revenge," subversive political undertows in punishment, being humane toward the elderly, etc., etc.

I see not one word about that in your response. If these factors don't count anymore, please let me know (for future reference).

5. The traitor Bradley Manning got TWENTY-EIGHT YEARS cut off his sentence in an (almost midnight) commutation by President Obama. That would be clemency FIFTY-SIX times as long as the maximum Sheriff Joe was facing, and for a crime vastly more damaging to national security.

Of course, Sgt. Manning was a member of a politically fauned-over group (transgenders) and this fact was explicitly relied upon by Obama Administration officials in "explaining" the breathtaking extent of the clemency.

Sheriff Joe, by contrast, is in the Officially Bad Group of Rotten White Males.

Could you quote any criticism you made of the massive clemency given Manning? Even a word? Because you have a very long comment here. Did you say anything, even one-tenth the length, expressing even mild doubts about the Manning windfall?

6. To be clear, liberal hypocrisy does not justify bad decisions (or correct ones, either) by conservatives. But it's still liberal hypocrisy.

For the record, CJLF has not taken a position on this issue.

As usual, I am in agreement with CJLF. As I noted in the third paragraph of the entry, "I'm not going to get into the merits of this individual pardon."

That said, I view the instantaneous turnaround in some quarters on the subject of pardons -- a turnaround in which the old standby's of mercy and moving on, among many others -- are gone with the wind, and in their place we see what could easily be mistaken for the anger and vengeance these same voices so emphatically denounced (before last Friday).

Arpaio, unlike Chelsea Manning, was an important political supporter of the President's during his election campaign, who embraced birtherism along with Trump. Arpaio is contemplating running for the US Senate against Jeff Flake, who the President slams whenever he gets the chance.

Other people keep saying this better than I can. Here is an Op Ed published in the L.A. Times appropriately entitled "Joe Arpaio's pardon defended by a 'whataboutism' that doesn't hold up" http://www.latimes.com/opinion/op-ed/la-oe-cohen-arpaio-obama-pardon-20170827-story.html

The key grafs are these:

"The truth is that 'America’s toughest sheriff,' as Arpaio liked to call himself, was an incompetent buffoon, a sour mash of cruelty and inattention that cost his county hundreds of millions of dollars in fines, fees and legal settlements. The only thing he accomplished in his decades in power was to become, first, a national symbol of brutality toward jail inmates and, later, a poster child for anti-immigrant racism. But pardon decrees cannot say any of that. They cannot say: 'Because no one can stop us we are today rescuing a sheriff who violated his oath of office and broke the law and never apologized for doing so.' . . . .

There isn’t much left to say, except to clarify the difference between the executive action taken Friday by Trump, a full pardon, and the controversial commutations undertaken during the Obama administration.

From the Justice Department’s website: 'A pardon is an expression of the President’s forgiveness and ordinarily is granted in recognition of the applicant’s acceptance of responsibility for the crime and established good conduct for a significant period of time after conviction or completion of sentence.'

Makes sense, except Arpaio never accepted responsibility for his criminal conduct and he never demonstrated a speck of remorse for violating his oath of office so he could continue to discriminate against Latino residents. Nor, of course, did Trump wait for the courts to sentence Arpaio or for Arpaio to serve even a small fraction of a sentence. By the Justice Department’s own terms this was an extraordinary exercise of the president’s power.

A commutation, on the other hand, 'reduces a sentence, either totally or partially, that is then being served, but it does not change the fact of conviction, imply innocence, or remove civil disabilities that apply to the convicted person as a result of the criminal conviction.' . . . .

Unlike Arpaio, the men and women to whom Obama showed mercy all had served significant time in federal prisons before they sought clemency. (Manning, for instance, ultimately served seven years.) Unlike Arpaio, each accepted responsibility for the crime or crimes that had put them behind bars. Unlike Arpaio, each went through a laborious vetting process by the Justice Department to ensure that the relief that ultimately was granted could be justified . . . .

There is one more difference between what Trump has just done and what Obama did. Obama granted mercy not just to high-profile inmate Manning, but to ordinary men and women who committed ordinary crimes. Trump granted mercy to a man who swore an oath and then put himself above the law in the most fundamental way possible—by refusing to enforce the law as the courts had interpreted it. In Trump’s world that is celebrated as 'public service.' In the real world we call that criminal contempt."

1. "Arpaio, unlike Chelsea Manning, was an important political supporter of the President's during his election campaign, who embraced birtherism along with Trump. Arpaio is contemplating running for the US Senate against Jeff Flake, who the President slams whenever he gets the chance."

This seems to imply that a defendant's political beliefs and activities are a legitimate consideration in deciding whether or how much time he should serve. Is that your belief? Are you ready to go all the places that leads?

2. I'm still quite interested in, and still see no answer to, my question about what has happened to the former routine rhetoric from the Left about clemency -- i.e., that America needs to be a land of mercy and second chances, that we're too quick to look to punishment rather than understanding, that there's an inherent political influence in prosecution and sentencing, and that older people are good bets to remain in the community, because they're unlikely to re-offend and, well, simply because it's inhumane to incarcerate the elderly.

Where did all that go? Does any of it apply to the Sheriff?

3. It's pretty interesting, in my view, that you don't dispute my characterization of Manning as a traitor. Was that an oversight?

4. You also do not dispute that Manning's sentence was reduced by 56 times the amount of the Sheriff's maximum potential sentence. Does that make a difference?

5. Obama gave Mr. Patriot his gigantic sentencing break three days before his presidential term expired, thus avoiding any political accountability. Trump acted with most of his term left, and has had oddles of accountability. Does that make a difference?

6. What would you say the chances are that the Sheriff will recidivate? What would you say the chances are that (at least) dozens of Obama's smack dealer clemencies will recidivate? My guess is 0% and 100%, respectively. Do you disagree?

Rewarding powerful political supporters with pardons smells deeply of corruption. The Marc Rich pardon stunk and this one smells even worse.

Pardons and clemencies fall or stand on their own merits. You aren't at all interested in defending this one, just in critiquing those who would criticize this one. I see this a lot from some conservatives these days, although it's nice to see others actually criticize the indefensible.. When Trump acts in a way meriting criticism, too many on the right decide that the important issue becomes whatever Democrats did before that they like even less. Tribalism roils American politics and perhaps this is one example of that fact.

Manning was properly convicted of violation of the Espionage Act and then served seven years of his 28 year sentence. I haven't paid a great deal of attention to the charges, the sentence or the clemency grant. But if I responded to that grant by pointing out something that a past Republican Administration did and refusing to address its merits, I'd deserve criticism for obfuscating the issue.

1. I sure see a lot of questions left unanswered, in particular the ones about what happened to all the Left's theories about, and rhetoric supporting, a far more robust use of the pardoning power. Indeed, there is not a single piece from the Left (out of dozens if not hundreds) in which I've seen the word "mercy" in the same paragraph with "Sheriff."

Gads, mercy et. al used to be SOOOO popular!

2. I don't know why you think I am obligated, or CJLF is obligated, to defend any particular action of this Administration. There was a day when it was considered good form to explain the arguments on both sides.

I will say that I agree with Attorney General Sessions, who (from news reports) declined a request to drop the case before it completed its journey through the judicial branch. The zillions of accusations that Sessions would not be independent of the President have turned out to be utterly false. If anyone on the Left has apologized, I haven't seen it.

3. Manning's sentence was 35 years, not 28. It should have been life. And adding the transgender stuff in as a rationale' for commuting the sentence ONE-FIFTH of the way through was just mind-boggling.

Gay, straight, bi, trans or what have you, sexuality has nothing more to do with culpability than race. Identity politics is rancid, and identity law is even worse.

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