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Presidential Pardons
The Issue
President Trump formally pardoned Joe Arpaio on Friday August 25, 2017, wielding the presidential power of mercy to absolve the former Arizona sheriff for defying a federal court order. This is a big deal! What do you think? And what can you do about it? It’s your time to take part in this discussion by acting on your informed knowledge!
Critical Question
Does the President have the Constitutional power to pardon Joe Arpaio and should he have pardoned him?
Your Opinion
What do you think? Take our survey.
Fact Sheet
A little information goes a long way!
Now let's get a little bit of context and learn a little bit more about presidential pardons.
These next two images are really interesting. They are the first batch of pardons from President George W. Bush (top) and President Barack H. Obama (bottom). Notice the dates of both pardons - at the end of each president's second year in office.
And for a really deep dive, check out this US Department of Justice - Office of the Pardon Attorney - List of all pardons by president
And here's a couple of helpful answers to questions about presidential pardons. Thanks internet!
Are There Different Types of Pardons?
When a person is convicted of a felony, he loses various civil liberties — the right to vote, serve on a jury, or own a firearm. A full pardon restores all these rights. It’s as if the crime never took place.
In a conditional pardon, a president may issue a pardon in exchange for something in return. For example, President Richard Nixon gave Jimmy Hoffa a conditional pardon in exchange for Hoffa’s pledge to never again take part in labor organization.
A president can also grant a remission releasing a person from a legal obligation. This applies only to fines levied against an individual as the result of a federal case.
A commutation shortens or abolishes the sentence, but leaves intact the civil disability. Commutations had been fairly rare until the Obama administration.
A respite is a short-term action — lasting only a month or two — and allows the president to delay a sentence or execution. Usually, the purpose of a respite is to buy time to allow further consideration of a pardon petition.
Can Presidential Pardons Be Undone?
The president isn’t required to explain or justify a pardon to anyone. The power to pardon cannot be reviewed or overturned by any of the other branches of government. There is basically no way to block a presidential pardon. Ambition may not counteract Ambition!
While pardons cannot be undone, the threat of impeachment might deter a president.
What Stops A President from Just Pardoning All His Cronies?
Congress has a particular incentive to curb the President’s power of pardon when it is investigating the President or his administration. Although a president can grant pardons to members of his Administration who refuse to testify before Congress, the Supreme Court has held that Congress’s power to hold its witnesses in contempt lies outside the president’s pardoning power. This means that witnesses hauled before Congress can be jailed in contempt for refusing to testify, and cannot be rescued by a presidential pardon. Or, prosecutors can wait until a president is out of office and then prosecute his cronies.
Presidential pardoning powers are vast
The Supreme Court actually ruled on this matter in the 1866 case of Ex parte Garland. That decision concerned a law Congress passed disbarring former members of the Confederate government, which was challenged by former Confederate Sen. August Hill Garland. President Andrew Johnson had pardoned Garland, and Garland argued that this shielded him from disbarment under the law. The Supreme Court agreed, and in doing so clarified that the pardon power is basically unlimited and can be applied to any crime, whether the pardoned person has been charged or not.
“By the second section of the second article of the Constitution, power is given to the President 'to grant reprieves and pardons for offences against the United States, except in cases of impeachment,’” Justice Stephen Field wrote. “With that exception the power is unlimited. It extends to every offence, and is intended to relieve the party who may have committed it or who may be charged with its commission, from all the punishments of every description that the law, at the time of the pardon, imposes.”
HOW DOES THE PARDON PROCESS USUALLY WORK?
Someone who has been convicted of a federal crime and wants to be pardoned makes a request for a pardon to the Justice Department’s Office of the Pardon Attorney, which assists the president in exercising his pardon power. Department rules tell pardon seekers to wait at least five years after their conviction or their release from prison, whichever is later, before filing a pardon application.
It’s then up to the pardon office to make a recommendation about whether a pardon is warranted. The office looks at such factors as how the person has acted following their conviction, the seriousness of the offense and the extent to which the person has accepted responsibility for their crime. Prosecutors in the office that handled the case are asked to weigh in. The pardon office’s report and recommendation gets forwarded to the deputy attorney general, who adds his or her recommendation. That information is then forwarded to the White House for a decision.
WHAT MAKES ARPAIO’S PARDON UNUSUAL?
Arpaio didn’t submit a pardon application through the Office of the Pardon Attorney. His pardoning also took place before he was sentenced. Arpaio was convicted July 31 of misdemeanor contempt of court for intentionally defying a 2011 court order to stop traffic patrols that targeted immigrants. He had been set to be sentenced Oct. 5 and faced up to six months in jail. The fact that Arpaio was pardoned for a misdemeanor offense, which carries a penalty of less than a year in jail, is also unusual. Generally those seeking presidential pardon have been convicted of felonies.
What did Arpaio do anyway?
Arpaio, who left office in January, ranks among the most controversial law-enforcement officials in American history. Phoenix-area voters elected him six times to lead the Maricopa County Sheriff’s Department, which he governed as a proto-Trumpian figure for almost a quarter-century. Arpaio’s harsh treatment of undocumented immigrants and criminal suspects brought him the adoration of Fox News viewers and multiple civil-rights lawsuits. He claimed former President Barack Obama’s birth certificate was a forgery even after Trump himself had publicly abandoned that stance. And he shared Trump’s disdain for the federal judiciary, frequently castigating the judges who oversaw lawsuits against him.
His extreme treatment of prisoners and detainees drew widespread condemnation and allegations of racial bias. A 2011 Justice Department report concluded that Arpaio engaged in “unconstitutional policing” by systematically targeting Latinos for racial profiling. That same year, in response to a lawsuit, a federal judge ordered Arpaio to stop detaining and harassing residents of largely Latino neighborhoods. He ignored the order and continued to perform sweeps, claiming they were lawful.
The judge charged him with civil contempt in 2015 and criminal contempt, a misdemeanor offense, the following year. A federal court found him guilty in July. Trump’s pardon comes before that legal process against Arpaio had finished: His sentencing hearing was scheduled for October, where he faced a maximum of six months behind bars.
How does the timing of this pardon compare to Presidents W. Bush and Obama?
The pardon is Trump’s first since taking office, breaking a barrier relatively early in his tenure. Almost two years passed before Barack Obama issued nine pardons to people convicted of relatively minor offenses; George W. Bush waited only a few days longer into his first term to erase convictions for selling moonshine and stealing $11. But Trump eschewed his predecessors’ modest lead, instead wiping clean a guilty verdict for criminal contempt of court for one of his staunchest political supporters after only eight months in office.
Now I'd like you to organize your thoughts by answering the following questions before anyone else is pardoned.
Ponder On
Who does the U.S. Constitution (above) give the president the power to pardon?
Why did President Trump pardon Joe Arpaio?
What groups of people or institutions did this pardon upset?
Who groups of people or institutions did this pardon please?
Was this pardon constitutional?
Why didn’t President Trump take this pardon through the normal pardon process and through the Department of Justice Department of pardon?
This was President Trump’s first pardon, 7 months into his presidency. How does the timing of this pardon compare to former presidents?
What are two consequences of this pardon?
Overall, do you think that the pardon of Joe Arpaio was a good thing?
Discuss the impact of this pardon on the following:
Democracy
Separation of Powers
Federalism
Independent Judiciary
Rule of Law
Presidential Approval
Points of View
Pro-tip: there are other people in the world and they don’t all think like you.
As you think about the following actual and hypothetical people, consider how each individual would probably feel about the pardon of Joe Arpaio. To convey their feelings, list one adjective or mark a frowny (anti-pardon) or happy (pro) face next to each person.
A member of the KKK
The federal judge who held Joe Arpaio in contempt of court
All federal judges who care about their orders being upheld
Donald J. Trump
Dr. Martin Luther King Jr.
An undocumented alien living in Phoenix, Arizona
An American citizen with brown skin living in Phoenix, Arizona
You
Your parents
Create a hypothetical individual who would be most happy about the pardon
Create a hypothetical individual who would be least happy about the pardon
Do
Now let's actually do something about all this stuff we know.
Discuss
Hey, teachers! This would be a great time for a fishbowl about Trump's pardon of Joe Arpaio.
Write
Write makes Might!
Now, let's take all that knowledge and our fishbowl discussion and write an argumentation essay: should President Trump have pardoned Joe Arpaio.
Action
Now let's take an informed civic action.
Here's a whole list of civic actions you can take about this topic.
Re-reflection
Let's return to critical question and get your opinion again
Critical Question
Does the President have the Constitutional power to pardon Joe Arpaio and should he have pardoned him?
Re-Reflection
How did your opinion change?
In what way did your opinion not change?
What do you know now that you didn’t know before.
Share your answers in class and online
Confederate Monuments
Pros and Con(federate)s
The Issue
Unless you’ve been hiding in a cave or under a monument of General Nathan Bedford Forrest you probably know that there is a huge debate roiling our nation about the more than 700 monuments to the Confederate soldiers who fought against the United States in the Civil War. Some Americans think all Confederate monuments should be torn down, others want to erect new monuments to the Confederacy. What do you think? And what can you do about it? It’s your time to take part in this discussion by acting on your informed knowledge!
Your Opinion
Before we learn more about this, share your opinion - take our Confederate monuments survey.
Our Task
Let’s use the current controversy surrounding Confederate monuments as an opportunity to educate yourself, your community and take an informed action.
Some Opinions
Some other smart people have some strong opinions about Confederate monuments
Editorials
Let the Confederate Monuments Stand
And here's a great compendium of editorials on Confederate statues from the right, left, center, and from the past!
Popular Opinion
Video
A Little Learning
Let’s learn a bit more about Confederate monuments before we do anything about it.
Confederate Monuments Fact Sheet
1. There are at least 1,503 symbols of the Confederacy in public spaces.
The study identified 1,503 publicly sponsored symbols honoring Confederate leaders, soldiers or the Confederate States of America in general. These include monuments and statues; flags; holidays and other observances; and the names of schools, highways, parks, bridges, counties, cities, lakes, dams, roads, military bases, and other public works. Many of these are prominent displays in major cities; others, like the Stonewall Jackson Volunteer Fire and Rescue Department in Manassas, Virginia, are little known.
2. There are at least 109 public schools named after prominent Confederates, many with large African-American student populations.
Schools named for Robert E. Lee are the most numerous (52), followed by Stonewall Jackson (15), Jefferson Davis (13), P.G.T. Beauregard (7), Nathan Bedford Forrest (7), & J.E.B. Stuart (5). The vast majority of these schools are in the states of the former Confederacy, though Robert E. Lee Elementary in East Wenatchee, Washington, and two schools in California (elementary schools named after Lee in Long Beach and San Diego) are interesting outliers. Of these 109 schools, 27 have student populations that are majority African-American, and 10 have African-American populations of over 90 percent. At least 39 of these schools were built or dedicated from 1950 to 1970, broadly encompassing the era of the modern civil rights movement. Fun fact: I taught at both Stonewall Jackson Middle School and Robert E. Lee High School (both in Texas). Jackson Middle was 99% non-white (in fact I only taught one White student there, and, true story, his name was "Whitey"), and Lee High School was 90% non-white, with over 1000 ESL students.
3. There are more than 700 Confederate monuments and statues on public property throughout the country, the vast majority in the South.
The study identified 718 monuments. The majority (551) were dedicated or built prior to 1950. More than 45 were dedicated or rededicated during the civil rights movement, between the U.S. Supreme Court’s school desegregation decision in 1954 and the assassination of Dr. Martin Luther King Jr. in 1968. The survey counted 32 monuments and other symbols that were dedicated or rededicated in the years since 2000. Many of these are memorials to Confederate soldiers, typically inscribed with colorful language extolling their heroism and valor, or, sometimes, the details of particular battles or local units. Some go further, however, to glorify the Confederacy’s cause. For example, in Anderson County, South Carolina, a monument erected in 1902 reads, in part: “The world shall yet decide, in truth’s clear, far-off light, that the soldiers who wore the gray, and died with Lee, were in the right.” Three states stand out for having far more monuments than others: Virginia (96), Georgia (90), and North Carolina (90). But the other eight states that seceded from the Union have their fair share: Alabama (48), Arkansas (36), Florida (25), Louisiana (37), Mississippi (48), South Carolina (50), Tennessee (43), and Texas (66). These monuments are found in a total of 31 states and the District of Columbia. Outside of the seceding states, the states with the most are Kentucky (41) and Missouri (14), two states to which the Confederacy laid claim. Monuments are also found in states far from the Confederacy, including Arizona (2) and even Massachusetts (1), a stalwart of the Union during the Civil War.
4. There were two major periods in which the dedication of Confederate monuments and other symbols spiked — the first two decades of the 20th century and during the civil rights movement.
Southerners began honoring the Confederacy with statues and other symbols almost immediately after the Civil War. The first Confederate Memorial Day, for example, was dreamed up by the wife of a Confederate soldier in 1866. In 1886 Jefferson Davis laid the cornerstone of the Confederate Memorial Monument in a prominent spot on the state Capitol grounds in Montgomery, Alabama. There has been a steady stream of dedications in the 150 years since that time.
Timeline
The Confederacy: In Its Own Words
The desire to preserve slavery was the cause for secession by Southern states. But 150 years after the war, many continue to cling to myths. As recently as 2011, 48 percent of Americans in a Pew Research Center survey cited states’ rights as the reason for the war, compared to 38 percent citing slavery. This finding is all the more astonishing because a review of statements and documents by Confederate leaders makes their intentions clear. The following is a sample:
"We hold as undeniable truths that the governments of the various States, and of the confederacy itself, were established exclusively by the white race, for themselves and their posterity; that the African race had no agency in their establishment; that they were rightfully held and regarded as an inferior and dependent race, and in that condition only could their existence in this country be rendered beneficial or tolerable.”
Texas Declaration of causes for secession, February 2, 1861
“Our position is thoroughly identified with the institution of slavery — the greatest material interest of the world.”
Mississippi Declaration of causes for secession
“They assume that the negro is equal, and hence conclude that he is entitled to equal privileges and rights with the white man. If their premises were correct, their conclusions would be logical and just but their premise being wrong, their whole argument fails.”
Alexander H. Stephens, Vice President of the Confederacy
Cornerstone Speech, March 21, 1861
“Our new government is founded upon … the great truth that the negro is not equal to the white man; that slavery subordination to the superior race is his natural and normal condition.”
Alexander H. Stephens, Vice President of the Confederacy
Cornerstone Speech, March 21, 1861
“A geographical line has been drawn across the Union, and all the States north of that line have united in the election of a man to the high office of President of the United States, whose opinions and purposes are hostile to slavery.”
South Carolina Declaration of causes for secession, December 24, 1860
And here’s what General Robert E. Lee thought about monuments:
As for honoring the memories of honorable men, here’s what Robert E. Lee himself said about undue reverence for conflicts past: “I think it wisest not to keep open the sores of war, but to follow the example of those nations who endeavored to obliterate the marks of civil strife, and to commit to oblivion the feelings it engendered.”
The Map
Let’s start by learning about where Confederate monuments are.
There are over 700 Confederate monuments in the US today! Use the Confederate Monuments map to locate a confederate monument in your community.
You can learn about all this information and more at the SPLC Whose Heritage Webpage
You can download Whose Heritage? Public Symbols of the Confederacy
The Chart
Get local. Fill in the Confederate Monument Data Sheet below about a Confederate monument in your community. If there are no monuments in your community then you must not live in the South (like I do), and you can just pick any monument from the map and database.
Points of View
Pro-tip: there are other people in the world and they don’t all think like you.
As you think about the following actual and hypothetical people, consider how each individual would probably feel about a Confederate monument or statue. To convey their feelings, list one adjective or mark a frowny (anti-monument) or happy (pro) face next to each person.
A 92 year old great grandson of slaves
A member of the KKK
Donald J. Trump
Dr. Martin Luther King Jr.
A mixed race child age 9
23 year old unemployed high school dropout who thinks he is white
A 35 year old employed college graduate who thinks he is white
93 year old great granddaughter of slave owners
You
Your parents
Your grandparents
The great grandchild of a Confederate soldier
A person your age and demographically similar to you, 30 years ago
A person your age and demographically similar to you, 30 years in the future
Create a hypothetical individual who would be most happy about the monument
Create a hypothetical individual who would be least happy about the monument
Ponder On
We’re not done yet. Here’s some more questions for you to ponder.
When were the first slave brought to the US?
Why were humans used as slaves in the US?
What were three major consequences of slavery?
How much did the Civil War have to do with slavery?
What do you imagine an Indian person would think of a statue or memorial commemorating their colonial British rulers?
What do you imagine a Jew would think of a monument of memorial commemorating the Nazi generals leading the German Army in the Third Reich?
What would you think of a statue commemorating George III, colonial ruler of the American colonies?
Would your community likely erect a monument to a confederate leader today?
Let’s say you support the idea of a monument to people who fought against the United States in the Civil War. Where do you think the most appropriate place for a Confederate monument would be in your community?
What did you learn from the map of Confederate monuments?
What did you learn from the timeline of Confederate monuments?
Share your answers in class and online #proconmon
Act
Do something with your learning. Do one of the following and share your action in class and online #proconmon
Survey
Ask (in person or by sharing my Confederate monuments survey) 10 people to share their opinion about Confederate monuments. Share their responses with your class and online. Please try to survey a diverse (racially, religiously, economically - like the US) group of people and try to explain how demographics influenced your survey results.
Personal Reaction
Write an adjective or phrase that describes how you feel about the Confederate statue on a large piece of paper and hold it as you stand in front of the statue. Share your photo and your explanation for your feelings with us.
Community Reaction
Position yourself near the Confederate monument for one hour. Give 10 individuals a piece of paper and a marker. Have them write their reaction to the Confederate monument on the piece of paper and take their portrait while they hold the paper in front of the monument.
Contact the Media
Write a letter to the editor of a local newspaper/new website explaining what you think about Confederate monuments in your community or across the nation.
Contact the Government
Start and sign a petition or write a letter to the local city council/county commissioners explaining what you think they should do about Confederate monuments in your community.
Creation
Make a counter-monument. Imagine what a monument would look like to the victims of slavery. Create a textual or visual draft of a monument for these people. Share your draft or even better, create a monument and place it near the Confederate monument. Document this.
Education
Educate your community. Create a pop-up educational platform (digital, a tryptic, a flyer, a poster, a handout) about the Confederate monument and the history of Confederate monuments. Place your monument near your community’s Confederate monument. Document this.
*These are tumultuous times. People have different and strongly held opinions about this topic. Your safety is important. If anyone is hostile, belligerent, or aggressive towards you or your work, do not engage with them.
Share your action in class and online #proconmon
Exit Interview
Re-Reflection
Your Opinion again
Now that you’ve learned about and acted on this issue, share your opinion - take our Confederate monuments survey.
How did your opinion change?
In what way did your opinion not change?
What do you know now that you didn’t know before.
Share your answers in class and online #proconmon
Democracy Inquiry
Compelling Question
What is democracy and how democratic is the US?
Take our survey: How Democratic is the US?
Democracy Quotes
Find your favorite from the democracy quotes below.
“Democracy is the worst form of government except all those other forms that have been tried from time to time.”
“Democracy cannot succeed unless those who express their choice are prepared to choose wisely. The real safeguard of democracy, therefore, is education.”
“Democracy is a device that ensures we shall be governed no better than we deserve.”
“It’s not the voting that’s democracy; it’s the counting”
“Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide.”
“The best argument against democracy is a five-minute conversation with the average voter.”
What is Democracy?
Democracy Resources
Michael Mandelbaum: Democracy’s Good Name
Robert Dahl: How Democratic is the US Constitution?
Democracy Preconditions
What are necessary conditions for a democracy to flourish?
Fill out the Preconditions for Democracy form for your country
History of Democracy
Democracy Over Time
Samuel P. Huntington - The Third Wave of Democratization
Watch Democracy spread around the world in this one GIF
Democracy Today
Freedom House Democracy Data - Freedom in the World Interactive Map
Freedom in the World - 2017 Report
Here's a great NPR interview with Larry Diamond about today's rise of authoritarianism and fall of democracy
Compelling Question
What is democracy and how democratic is the US?