Trump's Pardon of Sheriff Joe Arpaio Is a Reminder that Presidential Pardon Powers Should Be Used Far More Often

Presidential pardons were a depressing crapshoot long before Arpaio received one.


Photo credit: Gary He/Polaris/Newscom

I believe in the goodness and necessity of executive clemency so strongly that I took a two-year break from journalism to work at an organization that advocates explicitly for commuting overly long sentences. There's no universal agreement on what constitutes an "overly long" sentence, but I used to tell friends and peers that—in a very, very, very small way—I helped get drug dealers out of prison early.

It's not just drug sentences that are too long. There is a saying among conservative prison reformers that "prison should be for people we're afraid of, not people we're mad at." The precise boundaries of those categories may be debatable. (Attorney General Jeff Sessions, for example, insists drug offenders are inherently violent, a view I strongly disagree with.) Maricopa County Sheriff Joe Arpaio, who was pardoned by President Trump last week in a controversial move that circumvented the conventional pardoning process, is in the latter category. Many people fear what Joe Arpaio did as sheriff, what he stands for, and the voters who empowered him to do those things for so long. But Joe Arpaio, private citizen, is not a threat to public safety.

So I am not too upset that he will not be caged, just as I am not upset when drug offenders are not caged, because I think our collective eagerness to rescind life and liberty is illiberal and dehumanizing, not to mention hideously expensive and a massive obstacle to personal reform.

The problem with executive pardon power as it has been used in the last few decades is not the benefits occasionally derived by the Joe Arpaios of the world, but that it so seldom benefits anyone else. Executive clemency is a thinly disguised lottery that mostly disappoints the vast majority of people who play it. Presidential pardons should be handed out far more often and far more consistently to a far wider group of people. (I would say the same of commutations, but legislative reforms would help far more people.)

To be clear, I believe President Trump's decision to pardon Arpaio was a disgrace due to Arpaio's lack of contrition and Trump's blatant disregard for precedent. But if the price of radically expanding clemency were that sometimes someone like Joe Arpaio got pardoned too, it would be worth it.

Trump's pardon of Arpaio did not follow the contours of what we typically think of as a "good" pardon.

Those usually start with the Office of the Pardon Attorney (OPA), which acts as a conduit between clemency applicants and the upper echelons of the Department of Justice. The OPA encourages men and women convicted in the federal court system, or under the Uniform Code of Military Justice, to apply for the president's forgiveness starting five years after they have finished the entirety of their sentence; or, in the event they served no time, five years after the date of conviction.

That is not what happened with Sheriff Arpaio. He was convicted in July. He would not have been sentenced until October. Prior to his pardon, he seemed most likely to receive some form of supervised release, such as probation, rather than prison time. "Generally," says the OPA website, "no petition should be submitted by a person who is on probation, parole, or supervised release."

Arpaio, as it happens, was pardoned without ever submitting a petition. This is extremely unusual.

The rules have been bent in other ways, of course. Marc Rich, an oil trader indicted for doing business with Iran during the 1979-1981 hostage crisis, fled the U.S. in 1984 to avoid arrest and a trial. President Bill Clinton pardoned him in 2001 without Rich ever returning to stand justice.

Understandably, plenty of people were upset about this. Democrats. Republicans. Justice Department staffers. It was a disgrace, and the actors who made the Rich pardon happen—a list that includes then-Deputy Attorney General Eric Holder and Pres. Clinton himself—admitted later it was a bad idea.

Trump pardoning Arpaio when, how, and why he did is more akin to Clinton's pardon of Rich than any relief granted by Presidents George W. Bush or Barack Obama or even George H.W. Bush. Arpaio may not have given Trump as much money as the Rich family gave Clintonland and the Democratic National Committee, but he gave him electoral support.

And like Rich, Arpaio thumbed his nose at the justice system, which Nick Gillespie documents in detail here. Any attorney or advocate whose worked on pardon applications will tell you that contrition is an essential ingredient to having a snowball's chance in hell. (If you want more examples of Arpaio's bumptiously disrespectful behavior toward the judge presiding over his case, read this thread by the judge's former clerk.)

And yet, most pardon applicants, even those who go through the normal process and show contrition, do not have even a snowball's chance. Between the beginning of Dubya's presidency and the end of Obama's, the DOJ received 5,893 pardon applications. Those two presidents granted 401 combined, or just shy of seven percent. The rest were either denied or ignored—"closed without presidential action."

While we're talking about Bush and Obama, let's zoom right quick down memory lane and look at how long their pardon recipients had to wait. You can see all the presidential pardon and commutation recipients here, dating back to Pres. Richard Nixon, who exercised his clemency powers like someone who never donned the veil of ignorance.

Bush's two most generous pardons came seven years after the applicants were convicted. Most of the people he pardoned waited much longer. One man received a pardon in 2005 for a bootlegging conviction dating back to 1959. There's no obvious rhyme or reason to Bush's list, though little people getting lucky and big people nudging things along probably explains most of it. (The actual reasoning that an administration uses for each case is pre-deliberative information and thus exempt from public records requests.)

Even when Bush did meddle in the Justice System, he didn't go nearly as far as Trump. After White House staffer Scooter Libby was convicted for his role leaking Valerie Plame's identity and lost on appeal, Bush commuted his 30 month prison sentence, but didn't pardon him for his crimes or rescind the court-ordered fines and period of supervised release. Libby forfeited his law license in 2008 and didn't get it restored until 2016, and remains unpardoned. I'm not suggesting you weep for the man, but it does show that even for the wealthy, criminal penalties aren't always limited to what's handed down at sentencing.

Those unintended penalties are supposedly why pardons exist: so that every few years the president can pluck a handful of random people out of a living hell and give them his (and one day her) blessing to hold occupational licenses, vote, and own firearms without being labeled a felon in possession.

Let's return to Arpaio getting a pardon despite showing zero remorse while most people feel obligated to grovel and many don't get so much as a formal brush-off: Arpaio didn't deserve it by the historical standard. He didn't wait long enough, didn't say sorry, didn't cop to being bad nor promise to be good. ("You should bear in mind," the OPA tells potential applicants, "that a presidential pardon is ordinarily a sign of forgiveness and 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 release from confinement.")

Also: Trump's reasoning—that Arpaio was treated unfairly—was absolute bullshit. As Gillespie noted, Arpaio was treated as fairly as one could hope to be by the federal criminal justice system. He had private attorneys and remained free during his trial. He remains free right now.

Lastly, let's look at what makes the pardon process so awful even when it's not being used to benefit political allies.

The Office of the Pardon Attorney is very small. It receives a large volume of applications, each of which requires a ream of supporting paperwork, ranging from documents related to all of the applicant's convictions and arrests, to contrite personal statements and documented claims of conviction-related hardships, to letters of support. "You must list all delinquent credit obligations," says the OPA, as well as any bankruptcies and unpaid tax obligations.

Does having filed for bankruptcy hurt your chances? Improve them? OPA won't tell you, and I doubt the agency has a hard and fast rule. What if your hardships are not exceptional? How does one go about making him or herself out to be exceptionally screwed by the collateral consequences of a criminal conviction? What an awful contest.

Every aspect of the application must be verified, and the burden of accuracy is on the applicant. "The failure to fully and accurately complete the application form may be construed as a falsification of the petition," says OPA, which adds that "the knowing and willful falsification of a document submitted to the government may subject you to criminal punishment." I don't think anyone has ever been tried for leaving something out of a pardon application, but isn't nice to know the government reserves that right?

The applications are first read by bureaucrats, then by other bureaucrats, who might pass them along to political appointees, who may put them in front of White House staff, who perhaps will put a bug in the president's ear. At each step, an anonymous person with a lot of power has to ask him or herself, "Will kicking this up the chain of command expose me or my boss to criticism or blowback?" If the answer remotely resembles a yes, then the applicant's answer is generally "no." There are exceptions, of course, but you can name then on your fingers: Rich, Chelsea Manning, Arpaio, Libby. But we should probably dispense with the idea that a presidential pardon is anything more than a carefully orchestrated attempt on the government's behalf to appear inoffensively human. (The exceptions being Obama's clemency initiative and Jimmy Carter's pardoning of men who refused to fight in Vietnam.)

There is even a small cottage industry of legal workers who will "help" federally convicted individuals put together a petition. Attorneys will generally do so for somewhere around $10,000, even though the instructions for applying are posted on the DOJ website and say nothing about the necessity of hiring a lawyer. These attorneys will cite their experience in government or their pardon success rate, but they can't say for sure they'll get you out, only that they'll take your money and use their letterhead. Further down the legal food chain, paralegals will tell you they also know how to put together a perfect pardon application, and will do it for slightly less than the attorneys. Then there are current and former prisoners who got lucky or know someone who did. They will transfer that luck to you, for money.

The people who receive pardons—like the people who receive commutations—are generally no more exceptional or deserving of them than many of the people who get rejected. They are simply the ones who, for whatever reason, didn't get rejected. The result is a system that is fundamentally unfair.

The pardon process should be more than a crapshoot that benefits the lucky and the well-connected.

One way to do that is to pardon lots of people regularly, something former Pardon Attorney Margaret Love advised in a brief for the American Constitution Society. "When pardons are issued generously and at regular intervals, as they were prior to 1980, the power appears more a function of government than a perk of office, and thus more legitimate in the public eye."

Love also suggests we should think more broadly about who deserves pardoning, when, and why:

An individual who has fully satisfied the court-imposed penalty, accepted responsibility for the offense and made a reasonable effort to reconcile with those injured by it, and lived productively for a period of time in the community, should ordinarily be considered favorably for pardon. Humble status and modest means should not be disqualifying. Indeed, reserving post-sentence pardons for those who have performed heroic acts or rendered extraordinary service to their communities may send a message that forgiveness is not a final closure to which ordinary people may aspire. At the same time, the gravity of the offense or notoriety of the offender may suggest the desirability of imposing a longer waiting period before favorable action, in consideration of the symbolic effect of a pardon. A specific need for a pardon (e.g., to qualify for a particular job or license, obtain a security clearance, or avoid deportation) may be a relevant factor in considering whether to grant clemency, but a simple desire for forgiveness should be sufficient.

P.S. Ruckman, Jr., with whom long-time Reason readers are likely familiar, has also published suggestions for transforming pardon power from a crapshoot into a mundane rehabilitative tool.

A sound first step would be moving the Office of the Pardon Attorney out of the fundamentally punitive confines of the Justice Department. He also suggests that pardon attorney terms should begin and end with those of the president, which would allow for the OPA to reflect the views of a new president and force new presidents to select someone whose philosophy on mercy mirrors their own. Ruckman's list goes on, and includes thoughtful ideas such as creating a clemency commission, tracking data on clemency recipients post-receipt of either pardon or commutation, and requiring the attorney general to publish why pardons and commutations were granted, as was done in the early 20th century.

But any initiative to reform the process would need to come from the White House. With Trump flouting the conventions that already exist to pardon people like Arpaio, I don't see that happening any time soon.

Disclosure: I served as director of communications at Families Against Mandatory Minimums, a sentencing reform organization that advocates for legislative reforms and increased use of executive clemency, from 2013 to 2015.

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  1. prison should be for people we’re afraid of

    I assume you mean Jews.

    1. And young black men. We’re all totes scared of young black men, apparently.

  2. Many people fear what Joe Arpaio did as sheriff, what he stands for, and the voters who empowered him to do those things for so long. But Joe Arpaio, private citizen, is not a threat to public safety.

    So I am not too upset that he will not be caged, just as I am not upset when drug offenders are not caged, because I think our collective eagerness to rescind life and liberty is illiberal and dehumanizing, not to mention hideously expensive and a massive obstacle to personal reform.

    I…dammit Riggs.

    1. The law and order libertarians aren’t going to like this one bit.

    2. [Raises finger…pauses….lower finger….walks away]

    3. Yes, this made me pause for a few moments. It’s too damned easy to get caught up in retribution by a coercive state for those who previously wielded the power of the coercive state. Sauce for the goose and gander; live by the sword, die by the sword; hoist by his own petard; all those speak of deep human feelings.

      But I suppose like Riggs, I do not believe in lockup except for those who have demonstrated their violence and are pretty damned likely to do so again and again. Some cases are easy: why lock up embezzlers, when prospective employers can see their record and just not hire them? Some, like Arpaio, make you grit your teeth and wish someone else would take responsibility for locking him up while you keep your hands clean.

      In my Libertopia, I settled on restitution only for verdicts, never lockup, but with the proviso that those who didn’t pay their verdict debts were outlaws for that amount and could not file claims for less than what they owed; at some point, they would owe so much that they could not complain about being kidnapped, or even killed in extreme cases. I think Arpaio would owe so much to so many that he might fall into that category, although no doubt supporters would pay his debt.

      1. But he WAS violent. The difference was that he used the state.

        Do we not lock up violent offenders who manage to cripple themselves in the line of crime? Or ones who get old before we catch them?


        But he wasn’t convicted of being violent.

        1. Once he’s retired, he no longer can be violent. What does lockup do except exact revenge at considerable taxpayer expense with no improvement in society’s safety.

      2. Small difficulty in that those in a position of government office can and should be held to a higher standard. Otherwise it is just corruption across the board with little recourse except killing people in the street. It is damn near an article of faith that rule of law will be upheld or you invite bloodshed. We are grievously too close to that as it is.

        And as is with Arpaio, he probably wouldn’t have done any jailtime, so arguments about the justness of locking up non-violent offenders seems premature. Worse- the full legal process is essentially upended with his pardon, so we’ll never know. Some could view this as corruption in and of itself.

        Restitution only works if there is a capacity to make whole (and the question if this isn’t just a free pass to the wealthy to break the law), and in the case of an elected official, I doubt there really is a way to make whole.

        Damnatio memoriae is probably too harsh, but I’d have little problem with stripping officials of their citizenship and putting them on the border. You are setting them free in the grandest sense of the word.

  3. that every few years the president can pluck a handful of random people out of a living hell and give them his (and one day her) blessing…

    Trump planning a change? Why isn’t this news?

  4. To be clear, I believe President Trump’s decision to pardon Arpaio was a disgrace

    I see you studied at the Robby Soave School of Wing Chun.

    1. You misspelled Wind-Spun.

      1. +1 punny fun

  5. We have a new front runner in the most contrarian libertarian at Reason race.

    1. One day we’re bawling about the barbarity of putting people in rape cages, next day we’re whooping for an old man to be thus caged.

  6. 90% of the people in prison should be pardoned before this douchecanoe.

    1. We all agree. As does Riggs.

  7. On one hand I could see often exercised pardons being a boon for a president, maybe a bump in approval ratings or something. The obvious problem is that pardons by essence undermine state authority. They are nothing short of declaring, “the state fucked up, here’s your freedom”. Make that declaration too many times and people might start to notice how often the state fucks people who don’t deserve it.

    1. The ideal is that the state justly convicts people, but as a result of extenuating circumstances a higher notion of justice requires a pardon.

      What we have here is one of the most brutally unjust justice systems in the world and a president who pardons people because he likes the cut of their fat bigoted jib.

      1. What we have here is one of the most brutally unjust justice systems in the world

        Let’s not get ahead of ourselves here. Until you’ve sat in front of a Chinese court or a Saudi tribunal, let’s keep the hyperbole to a minimum.

        1. Well, have you been to an American prison?

          I base my characterization on the fact that we have the largest prison population in the world.

          1. Which has nothing to do with whether they were justly or unjustly imprisoned.

            1. Well, it should lead us to scrutinize our criteria.

            2. Either that or we are the absolute worst people on earth. (I’m sure a lot of the people of earth would agree with that.)

              1. Speak for yourself…and most people, here, agree.

    2. A pardon is not “the state fucked up,” it is “you fucked up, but you seem contrite about it, so you’re forgiven.”

      Commutations, however, currently do suggest the state fucked up. Expanding their use to include poor health or the loss of a bread winner on the outside would go a long way toward making them seem less like a rebuke of the courts/statutes, and more a response to an extraordinary chance in circumstances. Then again, legislative reforms could also do this.

      1. I appreciate you supplementing this more nuanced understanding of a pardon. I was a bit off with my characterization of them.

  8. As long as the person isn’t a whiny bitch, right reason?

    1. I admire your dedication to dunderheaded obtuseness. Never change who you are esteve7, or even contemplate for one terrifying second why you do what you do.

      1. Zing!

      2. It’s really fascinating to see what has happened to normally level headed people after the election of Donald trump. It’s something to behold

        1. You’re genuinely annoyed that one of the most despicable authoritarians in America was called a whiny bitch by a snarky bitch in a leather jacket?

          1. Scoundrels like aroaio have rights just like the nazis in Charlottesville does. You can be against their goals and defends their rights at the same time.

            1. And you can call them a whiny bitch for the whiny bitches that they are.

        2. Clueless butthurt overload!

    2. This doesn’t even make sense.

      1. I’m assuming somebody (probably several somebodies) got their panties in a knot over The Jacket calling Arpaio a “whiny bitch” in the headline to his earlier post about this, but I’m not willing to wade back into the sewer to find out.

        1. esteve7 is a snowflake who was easily triggered by a Nick Gillespie headline, and he is virtue signaling his displeasure to impress his similar-thinking pals.

          1. Such a lazy buzzword filled insult, you can do better

            The snark was not over arpaio, but over a publication called reason literally using whiny bitch in their headline like a freakin buzzfeed article. It’s the lowest of the low. Why not an article calling trump a poopy-head, and whay he did will SHOCK YOU!

            1. It’s lower than abusing your governmental authority for years and locking non-violent people up in brutal conditions, and then complaining that you’re the victim. That’s how low you’ve sunk, Nicholas Gillespie!

        2. Right, but they’re about the same person. That’s where the whining snark breaks down!

      2. Try to suppress the idea that reason is a publication staffed by different people with a variety of opinions, and imagine it instead as an opaque nightmarish monolith that is powered by trendy cocktails and lies. Then it makes perfect sense.

        1. I liked it better when the Jews controlled the media.

  9. Razorfist on the Arpaio pardon

    he’s a lifelong resident of phoenix, so has some interesting background

    1. You had me at “Razorfist”.

      1. If you’re going to do a heavy-metal persona, you could certainly pick a worse handle

    2. Razorfist was my nickname in college.

    3. G-
      I have been watching Razorfist’s channel for a while now, and was interested to see his take on this and also the idea of a wall.

    4. This Razorfist video is 10/10 best stuff I’ve seen on Arpaio to date. I think I may have been hoodwinked by the media narrative on this one.

    5. He couldn’t cover this in less than 20 minutes?

      1. He’s a master ranter!


    Someone please pardon me from this article! CAN I GO NOW????

    1. Why are you here in the first place?

      1. I must have done something really bad. If you find out what it was – let me know!

      2. ‘E’s off ‘is bleedin’ meds, ‘e is!

  11. I dunno, Riggs, this guy broke the fucking law– and he broke the law under the color of enforcing it.

    1. I say indentured servitude to pay off the tens of millions he’s cost taxpayers (after seizing and selling off all his assets, of course). That’d be a start. Retribution is bad, but restitution’s legit!

    2. this guy broke the fucking law

      He was convicted of misdemeanor contempt of court.

      1. How many, here, have a severe contempt of the courts?
        So, how can you blame him for that?
        He should have been given the Medal of Freedom for being found that by some commie judge.

  12. Interesting. I hadn’t thought of pardons as merely a relief from the collateral consequences of being a felon. I erroneously thought it was meant as a check against unfair convictions or sentences.

  13. I don’t know how much Marc Rich paid for his pardon, but in the late 1960’s and early 1970’s the going rate for a run of the mill pardon was $200,000.

    At least Trump does not need the money.

  14. This was in my Daily Kos email screed today:

    “Sheriff Joe Arpaio illegally detained American citizens — just because they were Latino. He abused them by creating outdoor detention facilities that he bragged were “concentration camps.” And last week when President Trump pardoned him, Trump told America that this racism is acceptable. ”

    Let’s try this another way:

    Chelsea Elizabeth Manning (born Bradley Edward Manning) committed espionage. S/He abused his/her security clearance by releasing 750,000 classified documents to Wikileaks. And last year when President Obama pardoned him/her, Obama told America that this treason is acceptable.


    Oscar Lopez Rivera was convicted of trying to overthrow the government, and named a leader of a terrorist group that bombed public buildings and killed people. And last year when President Trump pardoned him, Trump told America that this terrorism is acceptable.

    Or, strongly related:

    16 FALN members were convicted of trying to overthrow the government, and named as of a terrorist group that bombed public buildings and killed people. And years ago when President Clinton pardoned them, Clinton told America that this terrorism is acceptable.

    1. Background:

      On August 11, 1999, Clinton commuted the sentences of 16 members of FALN, which is a Puerto Rican paramilitary organization that set off 120 bombs in the United States, mostly in New York City and Chicago. There were convictions for conspiracy to commit robbery, bomb-making, and sedition, as well as firearms and explosives violations.

      Rivera has been serving a 55-year federal prison sentence for being a leader of the Puerto Rican terrorist group, which sought independence for the U.S. island territory. The FALN claimed responsibility for over 70 bombings in New York City, Washington, D.C., and Chicago from 1974 to 1983. The attacks killed five people and wounded dozens more, including police officers.

      In 1981, Lopez Rivera was convicted of seditious conspiracy to overthrow the U.S. government and arms trafficking. He was later sentenced to serve 15 more years behind bars for trying to escape twice, and he never renounced his radical cause.

      In 1999, on the eve of Hillary Clinton’s U.S. Senate run in New York, her husband, President Clinton, commuted the sentences of 16 imprisoned FALN members. But Lopez Rivera reportedly turned the offer down, refusing to be released unless all of his comrades were released from prison.

      Now, 18 years later, he will be walking out of the federal prison in Terre Haute, Ind., a free man, his sentence cut short by 34 years. Obama commuted his sentence in the last days of his Presidency.

    2. Obama commuted their sentences. Ditto Clinton with FALN.

      I’m sorry.

  15. Or

    Marc Rich, a fugitive who had fled the U.S. during his prosecution, was residing in Switzerland. Rich owed $48 million in taxes and was charged with 51 counts of tax fraud, was pardoned of tax evasion. He was required to pay a $1 million fine and waive any use of the pardon as a defense against any future civil charges that were filed against him in the same case. Critics complained that Denise Eisenberg Rich, his former wife, had made substantial donations to both the Clinton library and to Mrs. Clinton’s senate campaign.

    And years ago when President Clinton pardoned him, Clinton told America that this tax evasion, cronyism, and bribing a President and/or the First Lady is acceptable.

  16. I don’t understand the “remorse” part of the pardon “requirements”. If you don’t think that you did anything wrong, and believe that the law under which you were convicted is a bad one, why should one feel remorse? Or even pretend to feel remorse? That sounds like humiliation for the sake of humiliation. It’s mean and spiteful and should play no part in the process.

    1. Agreed it is so juvenile. Think about what you did or you don’t get supper!

  17. Why should someone have to show contrition, or have served their full sentence? All those currently in prison for victimless crimes deserve a pardon!

    And why does the word victimless get flagged as misspelled? That should be a word that we all use.

  18. I’ve thought for some time now that incarcer’n should be only used to restrain acutely agitated persons, & that therefore it should be limited to a maximum term of 90 days, usually much less. If you don’t think the person can cease to be a threat in that amount of time, that person should be put to death, or permanently incapacitated by, I don’t know, cutting off both hands or something.

    If deterrence by threat of punishment is the reason for it, surely there are more efficient threats to use, such as infliction of pain.

  19. All cops thumb their nose at the justice system.

  20. If you want more examples of Arpaio’s bumptiously disrespectful behavior toward the judge presiding over his case

    I’m all in favor of being disrespectful to judges.

  21. Thank you Joe. Watching Reason’s so-called ‘libertarians’ argue a non-violent offender ‘guilty’ only of violating a procedural order belongs in a cage is priceless.

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