Sheriff Joe Arpaio Alex Wong/Getty Images

Pardons Are a Loaded Gun

Donald Trump's grant of a presidential pardon to Joe Arpaio, a former sheriff awaiting sentencing for defying a federal judge’s order to stop racially profiling and arbitrarily detaining people who looked Latino, was divisive and unwarranted. So it raises a fundamental question: What if the pardoner doesn't care about justice?

NEW YORK – Joe Arpaio, the former sheriff of Maricopa County, Arizona, who was convicted of contempt of court for defying a federal judge’s order to stop racially profiling and arbitrarily detaining Latinos in the name of catching illegal immigrants, is no stranger to controversy. But it is US President Donald Trump’s recent pardon of Arpaio that currently is spurring heated debate, as it raises fundamental questions about the presidential pardon power that has been a part of US policymaking from the country’s birth.

In a monarchy, a king may have the power to forgive citizens’ crimes virtually without limit. In the US Constitution – Article II, Section 2 – America’s founders gave a similar power to the president, but with two key limitations. One is rooted in separation of powers: it could not be used in cases of impeachment, an issue that is handled by Congress. The other is rooted in federalism: it could be used only for crimes “against the United States,” or federal crimes, not crimes prosecuted by one of the 50 US states.

The granting of the pardon power reflected concerns among the US Constitution’s framers that the criminal code would be applied in a draconian manner, producing a surfeit of punishment. As Alexander Hamilton put it in Federalist 74, “The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”

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