Fault Lines
9 November 2018

Joe Arpaio: Timing Is Everything

October 27, 2016 (Fault Lines) — Joe Arpaio is a bad dude. Between his mistreatment of the prisoners in his jail, his birther insanity, and his “papers please” immigration enforcement efforts; this guy is a disgrace to his badge, and the people of Maricopa County should be ashamed of electing him six times.

His immigration crusade may be the straw that broke the camel’s back: he just got slapped with federal criminal contempt charges,  stemming from his disobeying a court order that he stop rounding up Latinos and throwing them in jail on the grounds that they might be illegal:

[Federal judge Murray] Snow ruled three years ago that Arpaio’s officers systematically racially profiled Latinos in regular traffic stops and immigration patrols. He ordered a sweeping overhaul of the agency, including making patrol officers wear body cameras and conducting more training to ensure officers aren’t making unconstitutional traffic stops.

Arpaio has acknowledged violating Snow’s orders, including letting deputies conduct his signature immigration patrols 18 months after the judge barred them.

The judge said Friday that Arpaio “engaged in multiple acts of misconduct, dishonesty and bad faith” related to those who sued over the racial profiling and “made multiple intentional misstatements of fact” while testifying during a hearing.

That was back in May, which resulted in a finding of civil contempt. The criminal contempt charge is a different animal:

Any person, corporation or association willfully disobeying any lawful writ, process, order, rule, decree, or command of any district court of the United States or any court of the District of Columbia, by doing any act or thing therein, or thereby forbidden, if the act or thing so done be of such character as to constitute also a criminal offense under any statute of the United States or under the laws of any State in which the act was committed, shall be prosecuted for such contempt as provided in section 3691 of this title and shall be punished by a fine under this title or imprisonment, or both.

It’s doctrinally different in that criminal contempt is meant to punish wrongdoing, not coerce compliance. It’s practically different in that it carries the possibility of Sheriff Joe going to jail for six months. If karma is actually a thing, he’ll serve the time wearing pink underwear in a tent in the Arizona heat.

Criminal contempt is a little unusual in that the case was actually initiated by a judge, not a prosecutor. This is pursuant to Rule 42 of the Federal Rules of Criminal Procedure:

Rule 42:

(a) Disposition After Notice. Any person who commits criminal contempt may be punished for that contempt after prosecution on notice.

(1) Notice. The court must give the person notice in open court, in an order to show cause, or in an arrest order. The notice must:

(A) state the time and place of the trial;

(B) allow the defendant a reasonable time to prepare a defense; and

(C) state the essential facts constituting the charged criminal contempt and describe it as such.

(2) Appointing a Prosecutor. The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt.

The case got started this week when (federal) Judge Susan Bolton signed an order to show cause. Bad as Arpaio is, though, Her Honor should have held off for a couple of weeks.

The reason is simple: Arpaio is currently running for re-election. For once, it appears to be a competitive race, with Arpaio supposedly trailing his opponent, Paul Penzone, by 15 points. It’s hard to escape the conclusion that the news of the criminal contempt won’t become an issue, and it follows that this case might have some sort of effect on the election.

Whatever motivated the timing of Judge Bolton’s decision, it looks bad; and opens her to charge that she’s trying to influence the election. Whether or not that’s actually true is not the point; the point is that even the appearance of such could have been avoided by waiting for a couple of weeks.

Consider: the lawsuit that resulted in the contempt charges started in 2007. The preliminary injunction against the mass arrests was in 2011, and the final judgment in the case was in 2013. The civil contempt finding wasn’t until May of this year. Most importantly, Arpaio has been Sherriff since 1992.

The judiciary’s stock in trade is its impartiality; which is so important that it’s worth preserving even the appearance of such. We might not think much of Arpaio, or his supporters, but the separation of powers suggests that judiciary should avoid, as much as possible, trying to appear to influence the election of an officer of the executive branch. Judge Bolton should have known better. Hopefully, the people of Maricopa County will in any event.

9 Comments on this post.

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  • Richard Kopf
    27 October 2016 at 10:47 am - Reply

    Noel,

    Your post is important and raises a fascinating issue. When should judges read the newspaper and react accordingly?

    Let me give you an example torn from the pages of today’s Omaha-World Herald. Yesterday, a doctor who got fired from his residency was found guilty of allegedly slaughtering four people (including a child) in horrific ways (a knife in the neck for example) because he associated the victims with the physicians at the medical school who canned him.

    Pending before the Nebraska electorate is a vote to determine whether to put the death penalty back on the books. But, today, the jury will deliberate on the death penalty in the case described above. You see the legislation doing away with the death penalty was “stayed” by the petition process in Nebraska.

    Should the trial judge have read the papers and delayed the trial until after November 8, 2016?

    A number of death penalty opponents think the judge should have waited, including Senator Ernie Chambers. (The New York Times has called Chambers “Nebraska’s legendary state senator.” http://www.nytimes.com/2013/01/10/us/ernie-chambers-nebraska-senator-returns-to-capitol.html)

    For now, I will end with a similar but broader question:

    Should a judge ever be strategic about the handling criminal cases if the mere hearing of the cases may have political consequences?

    By the way, from where I sit, the question is harder for judges than one might think.

    All the best.

    RGK

    • Noel Erinjeri
      27 October 2016 at 11:55 am - Reply

      “Should a judge ever be strategic about the handling criminal cases if the mere hearing of the cases may have political consequences?”

      Should they ever? I’d say yes, though it depends on the circumstances and exactly what the consequences would be. In Arpaio’s case, a two week delay in the initiation of the case wouldn’t have changed anything and would’ve avoided even the appearance of trying to sway the election.

  • Jim Tyre
    27 October 2016 at 11:39 am - Reply

    Bad as Arpaio is, though, Her Honor should have held off for a couple of weeks.

    So Arpaio should be allowed to continue to violate the prior Order because, election? Never mind that he’s engaging in illegal conduct, never mind that he’s tossing folks in jail that don’t belong there. Yes, an election optics takes precedence!

    • Noel Erinjeri
      27 October 2016 at 12:01 pm - Reply

      “Yes, an election optics takes precedence!”

      Arpaio can’t be stopped from doing anything until after the trial (if then), which would be after the election in any case. The judge knows this. But since the judge is the one who initiated the case, and determined the timing, it’s hard to escape the conclusion that she’s trying to hurt his electoral prospects.

      Public confidence in the impartiality of the judiciary (and in the whole system of checks and balances, for that matter) is more than just “election optics.”

  • bacchys
    27 October 2016 at 11:21 pm - Reply

    I disagree. The judge is influencing the election either way. Withholding the information from the electorate isn’t a neutral act. If it were a matter up for debate, talking about it might be undue, but having made the decision to prosecute for criminal contempt the announcement shouldn’t be delayed.

    It’s akin to the argument that refs in sports should call games differently in the final minutes: either way, the ref is “deciding” the game. Letting a player break the rules isn’t a neutral act, either.

    • traderprofit
      28 October 2016 at 3:42 am - Reply

      Bacchys, players aren’t at risk of jail or court fines, so it’s not really a great comparison.
      But, I agree judges should ignore the prospect of influencing elections. If they don’t just make the rulings without regard to political events on the calendar , then they are not being impartial.
      It would be worse to indict a newly elected official because one waited, rather than fade the heat for doing it as soon as a decision is made.

      But, then, every time I think RGK is off his rocker he proves just how much thought goes into his decisions and what I’ve failed to discern.

  • Rsa
    28 October 2016 at 12:43 pm - Reply

    If the judge is ruling against our law officers for following the federal immigration law can the judge then go after our law officers after the election for not following and enforcing the federal immigration law?

  • Bill Trumpington
    29 October 2016 at 7:15 pm - Reply

    Is this a thinly disgused commentary on the other election?

    • traderprofit
      30 October 2016 at 12:47 am - Reply

      Maybe…sort of like your last name?