Arpaio pardon could encourage more civil rights violations

File 20170823 6615 9d9a82Then-Republican presidential candidate Donald Trump is joined by Joe Arpaio at a campaign event. AP Photo/Mary Altaffer, File

by Steven Mulroy

President Donald Trump pardoned Joe Arpaio, the former Arizona sheriff who illegally used racial profiling to enforce immigration laws, on Aug. 25.

It’s true, Trump has the legal power to pardon pretty much anyone. But pardoning Arpaio may send the message that state and local officials can aggressively enforce federal immigration law, even if it risks racial profiling and violating the due process rights of citizens and noncitizens.

Legal limits on immigration enforcement

Arpaio has long been known for his harsh practices like requiring inmates to work on chain gangs and live in outdoor tent cities in the scorching Arizona heat. He prioritized immigration enforcement at the expense of crimes like sexual assault.

In 2011, a federal court found that Arpaio’s sheriff’s department unconstitutionally racially profiled Latinos. The court additionally noted that state and county officials had no authority to enforce federal immigration law without authorization from the federal government. Arpaio had no such authorization.

As a former federal prosecutor and Justice Department civil rights lawyer, I know that state and local cooperation can be helpful in enforcing federal law. But as I teach my constitutional law students, when it comes to immigration, federal law usually preempts state law. State overenforcement of immigration law can actually interfere with federal policy. So, state officials should enforce federal immigration law only where the federal government asks them to.

More fundamentally, no federal or state official can legally target people for immigration-related stops and questioning just because they look Latino. And as the Supreme Court has stated, even noncitizens have the right to due process and to be free from racial discrimination, as long as they are present in the U.S.

Arpaio’s detentions and questioning thus broke the law by violating individuals’ due process and Fourth Amendment rights to be free from unreasonable search and seizure. The court ordered Arpaio and his office to stop using race as a factor in its enforcement decisions. His deputies could detain individuals based on probable cause that they had violated some state law, but not merely because they suspected them of being in the U.S. illegally.

Consequences of a pardon

In July, another federal judge convicted Arpaio of criminal contempt for intentionally violating the first court’s prior orders. His sentencing hearing is set for this October.

It is unusual for a president to pardon someone before he or she is sentenced. Doing so suggests that Trump felt Arpaio did nothing wrong.

The pardon may encourage like-minded state and local officials to racially profile Latinos, too. More broadly, it may encourage state and local officers to aggressively enforce federal immigration law. Many experts and law enforcement officials criticize such state and local enforcement, saying it erodes trust with immigrant communities, making them too fearful to report local crimes and cooperate with police.

Arpaio’s pardon does not mean a complete clean slate for him. It would not erase a separate court ruling from 2016 that found him in civil contempt of court. Civil contempt is a noncriminal finding, which could require remedial measures like court-ordered reforms, reporting requirements and the like. These do not fall under the reach of the president’s pardon.

The ConversationNor does a pardon mean that he or his department are allowed to return to their unconstitutional practices. Arpaio himself is now out of office, having lost his most recent election. And the Maricopa County Sheriff Department is still under a court order to refrain from racial profiling and other illegal immigration enforcement efforts. But the pardon may embolden immigration hawks and infuriate Trump’s opponents – which, in the end, might very well be the intention.

Steven Mulroy, Law Professor in Constitutional Law, Criminal Law, Election Law, University of Memphis


Republished with permission under license from The Conversation

African-Americans fighting fascism and racism, from WWII to Charlottesville

File 20170821 4964 17mud34

 

 

 

Tuskegee Airmen and P-47. San Diego Air & Space Museum Archives

In July 1943, one month after a race riot shook Detroit, Vice President Henry Wallace spoke to a crowd of union workers and civic groups:

“We cannot fight to crush Nazi brutality abroad and condone race riots at home. Those who fan the fires of racial clashes for the purpose of making political capital here at home are taking the first step toward Nazism.”

The Pittsburgh Courier, a leading African-American newspaper at the time, praised Wallace for endorsing what they called the “Double V” campaign.

Double_V_Campaign

The Double Victory campaign, launched by the Courier in 1942, became a rallying cry for black journalists, activists and citizens to secure both victory over fascism abroad during World War II and victory over racism at home.

There is a historical relationship between Nazism and white supremacy in the United States. Yet the recent resurgence of explicit racism, including the attack in Charlottesville, has been greeted by many with surprise. Just look at the #thisisnotwhoweare hashtag.

As a scholar of African-American history, I am troubled by the collective amnesia in U.S. politics and media around racism. It permeates daily interactions in communities across the country. This ignorance has consequences. When Americans celebrate the country’s victory in WWII, but forget that the U.S. armed forces were segregated, that the Red Cross segregated blood donors or that many black WWII veterans returned to the country only to be denied jobs or housing, it becomes all the more difficult to talk honestly about racism today.

Nazis and Jim Crow

As Adolf Hitler and the Nazi regime rose to power in the 1930s, black-run newspapers quickly recognized that the Third Reich saw the American system of race law as a model. Describing a plan to segregate Jews on German railways, the New York Amsterdam News wrote that Nazis were “taking a leaf from United States Jim Crow practices.”

The Chicago Defender noted that “the practice of jim-crowism has already been adopted by the Nazis.” A quote from the official newspaper of the SS, the Nazi paramilitary organization, on the origins of the railway ban stated:

“In the freest country in the world, where even the president rages against racial discrimination, no citizen of dark color is permitted to travel next to a white person, even if the white is employed as a sewer digger and the Negro is a world boxing champion or otherwise a national hero…[this] example shows us all how we have to solve the problem of traveling foreign Jews.”

In making connections between Germany and the United States, black journalists and activists cautioned that Nazi racial ideology was not solely a foreign problem. A New York Amsterdam News editorial argued in 1935:

“If the Swastika is an emblem of racial oppression, the Stars and Stripes are equally so. This country has consistently refused to recognize one-tenth of its population as an essential part of humanity…It has systematically encouraged the mass murder of these people through bestial mobs, through denial of economic opportunity, through terrorization.”

Victory at home

When the United States entered WWII, African-Americans joined the fight to defeat fascism abroad. Meanwhile, the decades-long fight on the home front for equal access to employment, housing, education and voting rights continued.

These concerns prompted James G. Thompson, a 26-year-old from Wichita, Kansas, to write to the editors of the Pittsburgh Courier. His letter sparked the Double Victory campaign. Considering his service in the U.S. Army, which was racially segregated during WWII, Thompson wrote:

“Being an American of dark complexion and some 26 years, these questions flash through my mind: ‘Should I sacrifice my life to live half American?’ ‘Will things be better for the next generation in the peace to follow?’…‘Is the kind of America I know worth defending?’”

For Thompson and other African-Americans, defeating Nazi Germany and the Axis powers was only half the battle. Winning the war would be only a partial victory if the United States did not also overturn racial discrimination at home.

These ideals seemed particularly far away in the summer of 1943, when racial violence raged across the country. In addition to the riot in Detroit, there were more than 240 reports of interracial battles in cities and at military bases, including in Harlem, Los Angeles, Mobile, Philadelphia and Beaumont, Texas.

These events inspired Langston Hughes’ poem, “Beaumont to Detroit: 1943”:

“Looky here, America / What you done done / Let things drift / Until the riots come […] You tell me that hitler / Is a mighty bad man / I guess he took lessons from the ku klux klan […] I ask you this question / Cause I want to know / How long I got to fight / BOTH HITLER — AND JIM CROW.”

The end of Hughes’ poem calls to mind the swastikas and Confederate flags that were prominently displayed in Charlottesville and at other white supremacist rallies. These symbols and ideologies have long and intertwined histories in the U.S.

The ConversationAdvocates of the Double Victory campaign understood that Nazism would not be completely vanquished until white supremacy was defeated everywhere. In linking fascism abroad and racism at home, the Double Victory campaign issued a challenge to America that remains unanswered.


Matthew Delmont, Director and Professor of the School of Historical, Philosophical & Religious Studies, Arizona State University

This article republished with permission under license from The Conversation.

Why police reforms rarely succeed: Lessons from Latin America

During a speech to law enforcement on July 28, 2017, Trump encourages police brutality against suspects and many of the officers in attendance clapped and cheered. 

President Donald Trump’s appointment of Attorney General Jeff Sessions has led people to speculate about the fate of recent police reform efforts. Early into his tenure, Sessions said he intended to “pull back on” the Justice Department’s investigations of police department abuses, saying they diminish effectiveness.

Americans have mobilized extensively in the past three years against police brutality, militarization and corruption through the Black Lives Matter and related movements. Government officials at the federal level have responded to these demands by creating specialized task forces to recommend best practices, and investigating troubled police departments and enforcing reforms. Courts have also worked to roll back unconstitutional stop-and-frisk policies, while city governments have created independent oversight agencies and enacted robust community policing programs.

But will it stick?

My research on police reform in Latin America shows that such reforms are highly vulnerable to political reversals. These cases reveal how they can be quickly rolled back before they can take hold and demonstrate results.

Understanding the politics of police reform in Latin America may be informative for those who hope for changes in policing in the U.S.

Police reform and politics

Leaders in Colombia and Buenos Aires Province, Argentina, overhauled their police institutions in 1993 and 1998, respectively. These reforms were a response to rising crime rates, as well as pervasive police violence, corruption and ineffectiveness in fighting crime.

Comprehensive police reform laws were crafted through broad political consensus. Lawmakers in the Colombian congress and the Buenos Aires provincial legislature enacted sweeping legislation to demilitarize, decentralize and professionalize Colombia’s National Police and the Police of Buenos Aires Province. The reforms also improved recruitment standards and training, strengthened oversight agencies and created formal spaces for community participation.

Former Colombian President Ernesto Samper during a nationally televised speech in 1995. Reuters/Jose Gomez

Only one year after reforms were passed, however, Ernesto Samper was elected president of Colombia. He vowed to undermine his predecessor’s dramatic overhaul of the National Police, saying his government would “let the police regulate itself.”

Similarly in Buenos Aires Province, Carlos Ruckauf was elected governor in 1999. He left his predecessor’s police reform legislation intact. However, he made his preferred approach to crime-fighting clear: “we have to hit the criminals with bullets.”

Both politicians used citizens’ concerns over rising crime to lead calls for greater police autonomy, in order to be “tougher” on crime. Under their administrations, hard-fought police reform gave way to periods of “counter-reform.” These were characterized by increased police autonomy, weakened accountability, militarization, unchecked corruption and extrajudicial killings.

Other research on policing in Latin America has provided compelling evidence of the impact of such political rhetoric. When politicians promoting “tougher” police strategies are elected, police killings and repression of citizens increase.

These examples reveal how the long-term aims of police reforms can be difficult to reconcile with the short-term goals of politicians.

Police support for reform

My research also demonstrates that police forces that are resistant to reforms have considerable power to undermine them. In Buenos Aires Province, police officials succeeded in dismantling a system of neighborhood security forums that allowed citizens to conduct oversight of police. Police officials felt the forums gave citizens too much control over police affairs. As a result, they lobbied the governor and security minister to reduce the funding and staff needed to implement them.

By contrast, a similar participatory system in São Paulo, Brazil, has endured for three decades. There, police are incorporated into the governance structure of the community councils, allowing for a more collaborative relationship. As a result, many police officers have come to see forum members as their advocates. Although citizens in São Paulo do not have oversight authority, the police’s cooperation has contributed to the persistence of these participatory spaces.

Thus, reformers must identify and bolster police officials with a stake in sustaining reforms. Without support from insiders, reform is unlikely to last.

Sustaining momentum

Police reform is also made vulnerable by the fact that, after reform passes, its proponents demobilize. In Buenos Aires and Colombia, human rights and activist organizations remained active when politicians began to reverse reforms. But the broadly shared societal outrage that led to reform in the first place dissipated. With it went the momentum needed to sustain reform in the long term.

Research from both the U.S. and Latin America has shown that campaigning for “tough on crime” policies, or “penal populism,” is a highly successful strategy for winning elections. As scholars have shown, such policies can generate broad support among a diverse set of voters. So-called “pro-order” coalitions, the collection of civil society organizations, media outlets and politicians that advocate for “law and order” policies, have similarly demonstrated great capacity to mobilize resources and public support.

Failing to sustain reform coalitions means there is little counterweight to these pressures.

‘Counter-reform’ in the US?

Is the U.S. entering a period of “counter-reform” similar to that observed in Colombia and Argentina?

Opponents of reform, including Sessions, warn of “a longer-term trend of violent crime going up.” They have also floated theories such as the “Ferguson effect,” the idea that growing scrutiny of police activity has made police more timid. Such arguments may scare voters into believing that police reform may make police less effective in fighting crime.

Meanwhile, President Trump has engaged in rhetoric similar to his Colombian and Argentine counterparts. As a candidate, he called on police to be “very much tougher” in fighting crime. As president, he has said his will be “a law-and-order administration” that will “empower” police.

It is too early to tell whether these police reform efforts will backslide. While the U.S. context differs in some ways from Latin America, these examples demonstrate that police reform is a continuous and contentious process that is difficult to achieve and highly prone to reversal.


Republished with permission under license from The Conversation