Janet Napolitano Joe Arpaio

Janet Napolitano and Sheriff Joe Arpaio, Partners in Pink Underwear

PHOENIX (By Tom Zoellner, Slate) Nov. 24, 2008 Arizona Gov. Janet Napolitano, President-elect Barack Obama's apparent pick for Secretary of Homeland Security, has been praised as "smart, tough and funny" and "exceptionally talented." She has a record as a pragmatist on immigration and solid legal credentials as a former U.S. attorney and state attorney general. But Napolitano has also looked the other way on police excess when political calculation demanded it, as well as tolerated the questionable use of local sheriff's deputies to serve as a roving immigration patrol.

All of this can be traced to her friendship with the media-obsessed Sheriff Joe Arpaio of Maricopa County, Ariz., who would consider it his own personal failing if you haven't yet heard of him. He is "America's toughest sheriff," a man who rose to prominence in the 1990s with such newsmaking stunts as feeding his inmates green bologna, clothing them in pink underwear, housing them in surplus Army tents behind barbed wire in the desert, and putting them to work on chain gangs. This punishment is inflicted equally on convicted criminals and those who have been convicted of no crime at all but are awaiting trial and unable to afford bail. Inmates who assault guards are put on rations of water and fortified bread.

The public devours it, and Arpaio has consistently enjoyed some of the highest approval ratings of any elected official in Arizona (Maricopa County includes Phoenix). That inmates have a way of getting killed in Sheriff Joe's jails, costing Maricopa County millions of dollars in lawsuits, has not dimmed his star. Nor has a federal judge's order that he provide a constitutionally mandated minimum level of food and health care, an order that said Arpaio had inflicted "needless suffering and deterioration" on the mentally ill.

More than a decade ago, Napolitano was in a position to help curb Arpaio's excesses. As a U.S. attorney in 1995, she was put in charge of a Justice Department investigation into atrocious conditions in Arpaio's "tent city." Napolitano carried out her task with what can best be described as reluctance, going out of her way to protect Arpaio from flak almost before the probe had started. "We're doing this with the complete cooperation of the sheriff," she told the Associated Press. "We run a strict jail but a safe jail, and I haven't heard from anyone who thinks that this is a bad thing."

"Anyone"? Maybe Napolitano needed to get out of her office a little more.

The Justice Department's final report, issued about two years later, confirmed a list of disgraces, including excessive use of force, gratuitous use of pepper spray and "restraint chairs" (since blamed for at least three inmate deaths), and hog-tying and beating of inmates. It also said Arpaio's staffing was "below levels needed for safety and humane operations."

The Justice Department filed suit and settled with the sheriff the same day after Arpaio agreed to administrative changes, including limiting the use of pepper spray and improving inmate grievance procedures. Napolitano stood with Arpaio at a press conference in which she, according to the Arizona Republic, "pooh-poohed her own lawsuit as 'lawyerly paperwork.' " Arpaio called the result a vindication.

"Let me say this for the people of Maricopa County," he told the Republic. "The chain gangs stay. The tents stay. The pink underwear stays. All my programs stay. … This has nothing to do with my policies and programs."

Arpaio, a Republican, later appeared in a television ad supporting Napolitano's 2002 run for governor, which she won by a tiny margin, fewer than 12,000 votes. His intervention was undoubtedly one of the deciding factors in her election.

Napolitano's hands-off policy toward Sheriff Joe's constabulary antics continued in her tenure as governor, even as Arpaio started pulling his deputies away from local crime investigation and to checking vehicles and making sweeps for illegal immigrants—a policy denounced by the mayor of Phoenix, among others. Napolitano did little to rein in the sheriff, refusing to say anything about the controversy for months. She finally drew his ire last spring by denying him a portion of state funding that was to have been spent on roundups of suspected illegal aliens, instead ordering that it be used to catch felons.

Of course, few governors arrive at their offices without having made a few malodorous alliances. And Arizona is one of the most conservative states in the nation, where a tough stance on immigration is necessary even to get elected dog catcher. Still, when presented the opportunity to challenge a law-enforcement practice that was splashy and crowd-pleasing but ultimately cruel and futile, Napolitano declined.

Her history with Arpaio isn't necessarily a disqualifying factor. But it is something to consider. The secretary of the Department of Homeland Security cannot be reluctant to stand up and speak out against excesses in law enforcement.

Old alliances are raising questions about whether her commitment to upholding the law is driven as much by political consideration as strictly legal ones.

Now that Napolitano has landed on the short list of people being considered to succeed Justice David H. Souter on the Supreme Court, the above article is again relevant and accordantly re-printed.