Mimesis Law
16 July 2019

The Oregon Standoff: It’s Not About the Hammonds

Jan. 4, 2016 (Mimesis Law) — The impending (re)-imprisoning of two Oregon ranchers, Dwight and Steven Hammond, has led anti-government protesters to occupy the administration building of the Malheur National Wildlife Refuge. Among the occupiers are the sons of Nevada rancher Cliven Bundy, who had his own run-in with the federal government a few years ago. The Hammond family, to their credit, has stated through their lawyer that they want nothing to do with the occupiers, and plan to report to prison as ordered:

Neither Ammon Bundy nor anyone within his group/organization speak for the ” the Hammonds’ lawyer W. Alan Schroeder wrote to Sheriff David Ward.

The case against the Hammonds stemmed from fires they set on public land that they leased from the federal government for cattle grazing. They apparently have had something of a history with the Bureau of Land Management over the use of both their private property and the public land adjacent to it, though none of it appears to be particularly serious.  In 2001, the Hammonds set a fire that they characterized as an attempt to burn out invasive species, and in 2006 set a second fire called a “back burn,” in an attempt to create a firebreak to protect their winter feed from a wildfire.

The government characterized the 2001 fire as an attempt to cover up illegal hunting, and contended the 2006 fire was set in defiance of a burn ban, and may have endangered a nearby firefighting crew (no one was harmed). At trial, the jury convicted the Hammonds on two counts each of arson, and deadlocked on various other counts. The Hammonds agreed with the government to accept the arson verdicts in return for the dropping of the other charges.

Here’s where it gets interesting. The Hammonds’ sentences were subject to the Antiterrorism and Effective Death Penalty Act (AEDPA), which requires a mandatory minimum five year sentence for arson. (This appears to be the source of the impression that the Hammonds were being prosecuted as terrorists.)

But the trial judge, citing the Eighth Amendment, said a five year sentence would “shock [his] conscience,” and thus constitute cruel and unusual punishment. The trial judge instead sentenced the elder Hammond to three months in prison and the younger Hammond to one year. The judge reasoned that the arson statute wasn’t meant to punish fires set “in the wilderness,” and that a five year sentence would be grossly disproportionate to the crime. The government appealed the sentences, and the Ninth Circuit agreed:

[W]e hold that the district court illegally sentenced the Hammonds to terms of imprisonment less than the statutory minimum. A minimum sentence mandated by statute is not a suggestion that courts have discretion to disregard. The court below was bound to sentence the Hammonds to five-year terms of imprisonment. Although the district court attempted to justify lesser sentences on Eighth Amendment grounds, sentencing the Hammonds to five years of imprisonment would not have been unconstitutional.

Because the district court erred by sentencing the Hammonds to terms of imprisonment less than the statutory minimum, we vacate the sentences and remand for resentencing in compliance with the law. (Internal citations omitted).

On remand, both Hammonds were sentenced to the five year minimums, and are to report to prison on January 4th to serve out the balance of their sentences. The occupation of the government building at the Malheur Wildlife Reserve was apparently done in “solidarity” with the Hammonds.

Let’s back up one step. Why did the government decide to appeal the sentence? Were Dwight and Steven Hammond lunatic firebugs bent on burning everything west of the Rockies? Were they anti-government fanatics determined to provoke a confrontation with the hated Feds?  Not at all:

Amanda Marshall, then U.S. attorney for Oregon, said she recommended the government challenge Hogan’s sentence as illegal.

“If the government stands by and doesn’t pursue the statutorily mandated sentence in this case, what kind of precedent does that set?” Marshall asked. Hogan, she said, imposed “an unlawful sentence.”

Papagni, the federal prosecutor, said in court last fall that “the government did what we are supposed to do when someone doesn’t follow the law, be it a judge or be it two ranchers in eastern Oregon.”

The solicitor general at the U.S. Justice Department authorized a rare appeal of an Oregon judge’s order.

It had nothing to do with punishing the Hammonds for their wrongdoing, or with protecting the good people of Oregon. It had to do with teaching the judge a lesson: mercy is not allowed.

One has to have some sympathy for the Ninth Circuit in this case. Faced with a trial judge who imposed an illegal sentence, they had to send it back. They rather curtly dismissed the Eighth Amendment concern:

Given the seriousness of arson, a five-year sentence is not grossly disproportionate to the offense. The Supreme Court has upheld far tougher sentences for less serious or, at the very least, comparable offenses.

As much as we may dislike the result, the separation of powers requires that judges follow the law, cruel and stupid as it may be. If we want to change the law, we should elect better lawmakers.

That said, the prosecutor didn’t have to appeal the original sentence. They could have been satisfied with their victory, and accepted the result, and the judge’s decision that three months and a year behind bars was a sufficient punishment. Instead, they actually went to the Solicitor General to get permission to make sure that the Hammonds spent more time behind bars. Not because of what the Hammonds did, but because they wanted to make a point.

Prosecutors have discretion. Amanda Marshall should have used it.

17 Comments on this post.

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  • Keith
    4 January 2016 at 9:46 am - Reply

    So, if the Judge had said that five years is way too excessive and if that’s all there is, I’m entering a verdict of not-guilty — that wouldn’t harm the separation of powers. But sentencing them under his discretion as to what is an appropriate punishment does?

    We sure have an interesting Rube Goldberg machine, don’t we.

  • Jon H
    4 January 2016 at 9:49 am - Reply

    “The Hammonds agreed with the government to accept the arson verdicts in return for the dropping of the other charges.”

    Did the Hammonds agree with the understanding that they would get 5 year minimum sentences?

    • Eva
      4 January 2016 at 1:41 pm - Reply

      Actually that is a very good question and I wonder if their attorney could of made their initial plea bargain agreement (?) with the understanding that if the terms of the plea bargain were to be altered in any way shape or form in the future that their plea bargain was to be re-negotiated?

      Is that possible?

      • Jon H
        4 January 2016 at 7:04 pm - Reply

        I think if I was their lawyer, and I knew before the trial that the arson charges would fall under that 5 year minimum sentence dealie, I would have worked hard to cut a deal where they pled guilty to the non-arson counts in exchange for the arson counts being dropped or knocked down to something less serious, or something along those lines.

        • Eva
          5 January 2016 at 1:06 am - Reply

          What about the local judge who handed the initial decision? Why would of he not considered the prosecution’s possibility of appealing his decision and make necessary adjustments such as you indicated to secure his decision from any possibility of being appealed by the prosecution?

          • shg
            5 January 2016 at 8:41 am -

            Your question wrongly presumes there is some magic way for a judge to bulletproof his variation from the sentencing norm so that it won’t be vulnerable on appeal. There is no such magic.

  • Eva
    4 January 2016 at 1:33 pm - Reply

    Wasn’t there a directive by the DOJ regarding harsh enhancements? Wouldn’t the prosecution by going to the “Solicitor General” to get even “more time behind bars” be a Federal 851 enhancement? Why would this Solicitor General grant the prosecution this “enhancement” (?) considering the recent directive of the DOJ regarding 851’s? (if that is what this is all about)

    • Eva
      4 January 2016 at 1:44 pm - Reply

      Let me clarify,

      Wasn’t there a directive by the DOJ Holder regarding stemming the over-usage of harsh enhancements?

    • shg
      4 January 2016 at 2:00 pm - Reply
      • Eva
        4 January 2016 at 4:18 pm - Reply

        So what happened to the “Smarter Sentencing Act” (2015)?

        • shg
          4 January 2016 at 5:32 pm - Reply

          I assume you have access to google? It’s an excellent way to find out answers to generic legal questions having nothing to do with the post to which you’re commenting. In the alternative, you can retain a lawyer to get answers to your question, but google is much less expensive.

          • Eva
            5 January 2016 at 12:59 pm -

            In your last post above you indicated something about magical and bulletproof regarding the judge’s initial decision being appealed but this article apparently indicates that usually doesn’t happen that often.

            Do you know if there is recent trend toward prosecution appealing a judge’s decision overall or is this still kind of a novelty here?

          • shg
            5 January 2016 at 2:52 pm -

            Government appeals of sentences are, generally, rare. Sentences below the mandatory minimum are exceptionally rare, but almost invariably appealed by the government.

  • Jay
    4 January 2016 at 1:57 pm - Reply

    The 9th circuit sits in San Francisco and is packed with ivy leaguers. The second a bunch of city folk got to decide whether it was cruel and unusual to punish ranchers for fires on federal land under a statute intended for terrorism, it was over. Those judges have no relationship with rural areas and no interest in their lives or their concerns. If anything, they probably hold them in the same contempt most liberals have been expressing since this matter hit the media. To say that SCOTUS has upheld 5 year sentences for arson is hardly a holding on the propriety of a 5 year prison sentence for what happened in these cases and taking into account the characteristics of the Hammonds. It’s just a disinterested court dismissing an issue out of hand.

    • shg
      4 January 2016 at 3:38 pm - Reply

      I’m beginning to get the sense that you’re not a big fan of Ivy Leaguers or city folk.

      • Eva
        4 January 2016 at 4:11 pm - Reply

        Isn’t that where the notable Libertarian Judge Alex Kosinski hangs his hat at the US Court of Appeals Ninth Circuit in San Francisco?

        Well if he is an “Ivy Leaguer” that’s an Ivy Leaguer I really admire…..

  • Hammonds’ Sentence: Just A Banal Miscarriage of Justice | Simple Justice
    5 January 2016 at 7:06 am - Reply

    […] took over the administration building of the Malheur National Wildlife Refuge is a sideshow, having nothing to do with the sentences, and reversal and remand of those sentences, by the 9th Circuit in United States v. […]