When told that President Trump was seriously considering issuing a pardon, former Maricopa County Sheriff Joe Arpaio, who is due to be sentenced for criminal contempt of court for ignoring a judge’s order to stop detaining people he suspected of being undocumented immigrants, is reported to have said “I would accept the pardon because I am 100 percent not guilty.”
Before he actually accepts the pardon, Mr. Arpaio might wish to review the Supreme Court’s decision in Burdick v. United States, 236 U.S. 79 (1915), in which the Court explained the implications of acceptance. A pardon, the Court found, “carries an imputation of guilt; acceptance a confession of it.” Indeed, President Gerald Ford cited Burdick extensively in explaining his pardon of Richard Nixon, and at President Ford’s instruction, President Nixon was briefed about the Burdick decision and the implications of accepting the pardon. The defendant “may accept it or not, as he pleases,” and thus the “escape by confession of guilt implied in the acceptance of a pardon may be rejected, preferring to be the victim of the law rather than its acknowledged transgressor, preferring death even to such certain infamy.” Burdick thus states repeatedly that acceptance of a pardon amounts to a confession, which would not be consistent with Arpaio’s assertion that he is “100 percent not guilty.”
