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Sheriff Joe Arpaio Will Not Be Prosecuted For Racial Profiling Or Discrimination

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PHOENIX--Critics of Sheriff Joe "Tent City" Arpaio have been celebrating since the U.S. Department of Justice (DOJ) opened an investigation last week into alleged civil rights violations by the Maricopa County Sheriff's Office (MCSO). Not so fast though -- the revelry is premature. Neither Arpaio nor his officers will be prosecuted, punished, or sanctioned.

If nonsystemic violations are found, nothing will happen. In fact, if systemic violations are found, the MCSO will be rewarded with more resources. That's right folks. The letter from the DOJ spells all of this out in plain language. Even Arpaio, whose office is the subject of the investigation, described the letter from the DOJ as "a nice, friendly letter" that he believes will have "a positive outcome."

Complaints of civil rights violations -- national origin discrimination and illegal searches and seizures -- from local citizens and officials, members of Congress, and others have been mounting over the last couple of years as "Sheriff Joe" ramped up immigration enforcement under the controversial 287(g) program, which allows certain local and state law enforcement agencies to engage in immigration enforcement.

Last week, the DOJ sent a letter to Sheriff Joe informing him that the Special Litigation Section has opened an investigation into the complaints. I don't think I've ever seen my liberal friends as happy or my conservative friends as angry. I received dozens of emails either celebrating or condemning that "Sheriff Joe is going down!" As much as I hate to cut short the brouhaha, I don't think many people read the DOJ's letter -- those who did didn't read it carefully enough.

Specifically, let's take a look at this part of the letter:

We believe that you and other MCSO officials want to operate the MCSO consistent with the requirements of the Constitution and federal law. During the course of our investigation, we will consider all relevant information, particularly the efforts the MCSO has undertaken to ensure compliance with federal law. We also will offer to provide recommendations on ways to improve practices and procedures, as appropriate.



Provided that the MCSO cooperates fully with our investigation, if we conclude that there are not systemic violations of constitutional or other federal rights, we will notify you that we are closing the investigation. If, on the other hand, we conclude there are such violations, we will inform you of the findings and attempt to work with the MCSO to remedy any such violations. In addition, we will identify any financial, technical, or other assistance the United States may be able to provide to assist the MCSO in correcting the identified deficiencies.

So, what does this mean? The bottom line is: No one is going to be prosecuted.

* The letter clearly states, "if we conclude there are not systemic violations" the DOJ will be "closing the investigation." In other words, if violations exist but are not systemic, nothing will happen.

* And if the DOJ finds systemic violations, they will identify "financial, technical, or other assistance" to "assist MCSO." In other words, if systemic violations exist, the DOJ will help MCSO obtain more resources so that they can fix the problems internally.

If a prosecutor sent you a letter saying that you were being investigated for a legal infraction that you might be committing on a regular basis but said if found guilty they would help you correct it, would you be worried?

This is a program evaluation, not an investigation.

To boot, although there is a common misconception that this is a criminal investigation, the alleged infractions are actually civil, not criminal. The DOJ is also assuming good faith on the part of MCSO. They stated right up front in the letter that they believe Arpaio and his officers "want to operate the MCSO consistent with the requirements of the Constitution and federal law." The official opinion of the DOJ is that Arpaio wants to follow the law.

That said, Arpaio and the DOJ could have a difference of opinion when interpreting the law. Arpaio has proven adept at riding right up to the line of what the law allows (or the current court interpretation of what the law allows). Arpaio has already said that he will take into consideration only the recommendations from the DOJ with which he agrees. He's willing to fight it out in court against any DOJ recommendations with which he disagrees.

The DOJ isn't the enemy of Arpaio -- they are a partner agency. It is the DOJ, after all, that prosecutes most immigration cases. The DOJ wants to continue working cooperatively with MCSO. This is not persecution (as Arpaio supporters believe) or prosecution (as Arpaio opponents believe). This is a friendly program evaluation that will ultimately determine whether the DOJ thinks Arpaio and his officers needs more money for immigration enforcement.