A Famous Sheriff Fights Nudity


Sheriff Joe Arpaio is the Rudy Giuliani of Maricopa County, Arizona. He does not rule a city, but he does tightly control the fourth largest jail system in the country, comprising 7000 inmates in eight detention centers.

Many of the inmates are housed in tents, and Arizona temperatures can be fierce. The sheriff’s idea of gourmet food for the prisoners is green bologna; an aesthetician, he chooses pink underwear for his charges.

More than two-thirds of the prisoners are pretrial defendants. Not having been convicted of anything, they are presumed innocent–but not necessarily in this jail system.

During a recent radio interview on WABC in New York, the sheriff declared proudly that he has formed the first women’s chain gang in the world. He has, of course, already put into stumbling motion a men’s chain gang.

In a definitive report on the sheriff in The Arizona Republic, Dennis Wagner notes that Arpaio used to be an agent of the Drug Enforcement Administration–a gang of legal vigilantes for whom due process is the enemy.

Since 1993, more than 800 lawsuits have been filed against the Teflon sheriff, most of them alleging violations of prisoners’ civil rights. My son, Nicholas, a defense lawyer in Arizona, has engaged the sheriff in a number of those suits. Arpaio is not fond of Nicholas.

Dennis Wagner also relates the history of a Justice Department investigation of these Arpaio jails, the conditions of which would have been immediately recognizable to Charles Dickens. Nicholas Hentoff had a lot to do with the start of that Justice Department investigation.

In the course of the scrutiny, Deval Patrick, then the nation’s assistant attorney general for civil rights, wrote Maricopa County officials about unconstitutional conditions in Arpaio’s jails, including “excessive force against inmates and . . . deliberate indifference to inmates’ serious medical needs.”

But, Wagner writes, in June 1998 the Justice Department mysteriously dropped “the use-of-excessive-force lawsuit against the Maricopa County jail system. Three years of investigation ended.”

Sheriff Arpaio has many fans around the country and is so popular in Arizona that he was asked to run for governor. He probably would have been elected, but he did not want to abandon his beloved prisoners. Arpaio has appeared on more than 500 talk shows in various states. His ego is at least as huge as Rudy Giuliani’s.

Some of the jail guards point out, Dennis Wagner writes, that since Arpaio is the most popular politician in the state, they can do what they want.

Sheriff Arpaio, however, has recently sustained one constitutional loss–at the hands of his nemesis, Nicholas Hentoff.

Arpaio decreed that his prisoners could no longer be permitted “sexually explicit” materials. He defines “sexually explicit” as “personal photographs, drawings, magazines and pictorials that show frontal nudity.”

In 1996, Jonathan Mauro, an inmate, was banned from having Playboy–to which he had subscribed–delivered to his cell. He filed a First Amendment lawsuit, Mauro v. Arpaio. The sheriff won in federal district court. The judge agreed with Arpaio that allowing materials depicting “frontal nudity” in the cells could lead to conflicts among prisoners, as well as harassment of female guards, creating “a hostile work environment.”

Mauro and his lawyer, Nick Hentoff, appealed to the Ninth Circuit Court of Appeals. During oral arguments, Nick pointed out to the three judges that the courtroom’s statue of the Goddess of Justice–her breasts bared–would be banished under the sheriff’s ukase.

Nick added that Arpaio’s rule would also forbid National Geographic, medical journals, and artistic works by such painters as Michelangelo.

The three-judge panel voted unanimously against Arpaio. Judge Betty Binns Fletcher, speaking for the court, said that “prisoners do not lose their constitutional rights merely because they are incarcerated–although such freedoms are limited necessarily by the context of their surroundings.”

In this particular case, the court said that “although prison officials’ opinions regarding security threats are owed deference, we question whether all materials depicting nudity are ‘reasonably likely’ to be the cause of violence or a tool of harassment–absent proof or reasoned explanation that this will result.”

And that was the crux of the case. Arpaio’s regulation covered all frontal nudity, and thereby it covered too much. Said Judge Fletcher: “Maricopa’s policy . . . is overbroad and as such is unconstitutional.

“The blanket prohibition unnecessarily precludes prisoners’ access to materials fully protected by the First Amendment . . . indiscriminately eliminating large categories of materials without individualized consideration.” (Emphasis added.)

In its opinion, the court mentioned that during cross-examination, Nick Hentoff showed Arpaio’s deputy chief, Larry Wendt, a Michelangelo painting of a nude Christ. Nick asked if that painting would affect prison security. Wendt said that two inmates, a devout Christian and an atheist, could get into a fight if the atheist said, “Look at the size of the genitals on Jesus Christ.”

Wendt was then asked if “a picture of a clothed Christ could incite a fight between two inmates.”

Without hesitation, the deputy chief said, “It could.”

That statement was clear evidence of how broad Arpaio’s regulation was.

Judge Fletcher showed the sheriff a possible way out: “Were the County to define ‘sexually explicit’ differently or more narrowly, we would have a different case.”

Arpaio will not compromise–so far. He’s appealing to the Ninth Circuit for a rehearing, and, that failing, he may ask the Supreme Court to review the case.

In view of the current backlash in state legislatures and Congress against prisoners’ rights, Arpaio has done a service to all prisoners. A federal circuit court of appeals has clearly stated that prisoners still have some constitutional rights. That’s an advance.