The Arpaio pardon is misuse of power, plain and simple

Grace Bowland argues that Trump's pardoning of Arpaio reveals the troubling potential of the Presidential pardon to undermine the separation of powers

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Joe Arpaio, one-time sheriff of Maricopa County, Arizona: not the racist, sexist monster that the media portrays, but a devoted law enforcement officer just trying to do his job?

I’m just kidding. He set up self-described concentration camps, and chain gangs. He ignored over 400 sex crimes, including 32 cases of child molestation. He faked an assassination plot against him for political capital. He ordered his department to racially profile Latinos, his county lost millions in lawsuits to the families of victims killed in his jails, and he looks like the old man from Up‘s evil twin. There should be no question as to the nature of his character.

Trump’s recent pardon of Arpaio is controversial to say the least. In a recent poll, 60% of Americans said that they disapproved of the pardon. Already, legal challenges have sprung up against it. The most worrying part, however, is not the President’s support of such a controversial figure; we already knew what kind of man the 45th President of the United States is. It’s the conviction itself.  In July, Arpaio was convicted of contempt of court following a refusal to stop his department’s racial profiling practices, and this is the conviction that Trump has intervened on. By pardoning him, Trump shows blatant disregard and disrespect for the decisions of the court; to do so is not only to condone Arpaio’s original crimes, but also to give presidential cronies free rein to ignore the law. The concept of the presidential pardon sits uneasily with the ideal of the separation of powers to begin with, and when applied to a conviction for disobeying the court, it becomes far more sinister.

The separation of powers has long been held up as one of the foundations of any successful democracy, and a fundamental aspect of this is that the executive should not have control over the decisions of the judiciary. The American approach to the power of pardon has long undermined this principle. Using the pardon to nullify a conviction only a month after the guilty verdict is returned makes a mockery of the system. Why respect the law when the President can decide, on a whim, that it no longer applies to you?

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Perhaps my British perspective skews my approach. While our Prime Minister is very much “first among equals”, appearing to act mostly as a figure for roughly half of the country to hate at any one time, the President holds a far greater constitutional authority. Our closest equivalent to the presidential pardon, the royal prerogative of mercy, is a far more controlled process. The Queen acts on the suggestion of her ministers, who review the case thoroughly beforehand, and generally uses the power for less controversial reasons. Recent examples of the British use of the power of pardon include the early release of two prisoners who saved a man’s life in 2001, and a posthumous pardon for Alan Turing in 2013, after his conviction for gross indecency in 1952. It is for those kinds of cases that I shy away from suggesting that we abolish the pardon all together.

The pardon itself is not necessarily outdated, or a constitutional crisis. Used correctly, a pardon is an instrument for checking the judiciary; the law is not always right, and wrong decisions will be made. Posthumous pardons, like that of Alan Turing, are an excellent example of this.  The law was wrong, the conviction was wrong, and while the past cannot be changed, reparations can be made. However, the rampant American exercise of the presidential pardon undermines the decisions of the courts. It is no longer part of the system of checks and balances, instead used for political manoeuvring. Where was the injustice in Joe Arpaio’s case? In what way had he demonstrated that he was deserving of mercy?  This misuse of the power sends a strong message, but possibly not the one Trump was aiming for. The Presidential pardon has gone unregulated for too long – it must be reined in, before men like Trump can abuse it further.

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