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:
(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.