Two Ranchers, Two Fires, Too Long Behind Bars

The resentencing of Dwight and Steven Hammond illustrates the injustices wrought by mandatory minimums.

The occupation of buildings at Oregon's Malheur National Wildlife Refuge by a group of armed and disgruntled ranchers has brought national attention to a case that illustrates the injustices wrought by mandatory minimum sentences. The men who took over the buildings on January 2, led by Nevada rancher Ammon Bundy, broke off from a protest in support of Dwight and Steven Hammond, father-and-son Oregon ranchers who were each sentenced to five years in federal prison for setting brush-clearing fires that spread to public land. Unfortunately, the intense hostility that the occupation has aroused among progressives has overshadowed a case that otherwise could help advance a transideological alliance in favor of reforming our excessively rigid and punitive criminal justice system, which is especially rigid and punitive in its treatment of drug offenders.

The Hammonds, who have distanced themselves from Bundy and his followers, reported to federal prison in California last week. Because their original sentences were lengthened after the government challenged them, this is the second time Dwight, who is 73, and Steven, who is 46, have gone to prison for fires they set on their own property in 2001 and 2006. The first fire, which the Hammonds said was intended to eliminate invasive juniper trees, burned 138 acres of federal land. The second fire, a "back burn" aimed at protecting the Hammonds' winter feed from wildfires ignited by lightning, consumed one acre of federal land.

To put those numbers in perspective, the Hammonds' land totals about 10,000 acres, interspersed with several times as much federal land. Neither fire injured anyone, and the jury in the Hammonds' 2012 trial determined that the total property damage came to less than $2,000. The judge who sentenced the Hammonds said the damage to sagebrush and juniper trees caused by the larger fire might have totaled more than $100, although "I think Mother Nature's probably taken care of any injury." In fact, the Bureau of Land Management (BLM) concluded that the 2001 fire improved the federal land it affected. 

Still, the prosecution argued, the Hammonds did not get permission from the BLM for the fires, which could have done worse damage. The government also alleged, based on the testimony of Dusty Hammond, Dwight's grandson and Steven's nephew, that the 2001 fire was aimed at covering up evidence of illegal deer hunting. U.S. District Judge Michael Hogan discounted that testimony at sentencing, noting that Dusty, "who was a youngster when these things happened," had a grudge against Steven because of the harsh discipline he had suffered at his hands. Hogan determined that federal sentencing guidelines recommended a range of zero to six months for Dwight and eight to 14 months for Steven. He sentenced them to three months and one year, respectively.

On the face of it, those sentences were illegal, because the Hammonds had been convicted of violating 18 USC 844(f)(1), which prescribes a five-year mandatory minimum prison term for anyone who "maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive," any federal property. Hogan thought it was unlikely that Congress, which enacted that mandatory minimum in 1996 as part of the Antiterrorism and Effective Death Penalty Act, intended it to cover the accidental burning of federal land "out in the wilderness." Such a sentence "would shock the conscience," he said, and violate the Eighth Amendment's ban on "cruel and unusual punishments" because it would be "grossly disproportionate to the severity of the offenses."

Even the federal prosecutor who asked for the mandatory minimum conceded that "perhaps the best argument…the defendants have in this case is the proportionality of what they did to what their sentence is." He admitted that the mismatch was "troubling." The government nevertheless challenged the sentences that Hogan deemed appropriate, arguing that the law gave him no choice but to impose the mandatory minimum. In 2014 the U.S. Court of Appeals for the 9th Circuit agreed, saying "a minimum sentence mandated by statute is not a suggestion that courts have discretion to disregard." That is why the Hammonds, who had already completed their original sentences, were ordered back to federal prison, the development that led to the protest that attracted Bundy and his followers.

In rejecting Hogan's conclusion that the mandatory minimum was unconstitutional as applied to the Hammonds, the 9th Circuit noted that the Supreme Court "has upheld far tougher sentences for less serious or, at the very least, comparable offenses." The examples it cited included "a sentence of fifty years to life under California's three-strikes law for stealing nine videotapes," "a sentence of twenty-five years to life under California's three-strikes law for the theft of three golf clubs," "a forty-year sentence for possession of nine ounces of marijuana with the intent to distribute," and "a life sentence under Texas's recidivist statute for obtaining $120.75 by false pretenses." If those penalties did not qualify as "grossly disproportionate," the appeals court reasoned, five years for accidentally setting fire to federal land cannot possibly exceed the limits imposed by the Eighth Amendment.

In other words, since even worse miscarriages of justice have passed constitutional muster, this one must be OK too. Given the binding authority of the Supreme Court's precedents, the 9th Circuit's legal reasoning is hard to fault. But it highlights the gap between what is legal and what is right, a gap that occasionally inspires judges to commit random acts of fairness.

In the 1991 case Harmelin v. Michigan, the Supreme Court said "grossly disproportionate" prison sentences violate the Eighth Amendment. But it also said a mandatory life sentence for possessing 672 grams of cocaine was not grossly disproportionate, signaling that it would be very difficult to successfully challenge prison terms on Eighth Amendment grounds. In practice, it has proved pretty much impossible. As the Hammonds' lawyers noted in a petition seeking Supreme Court review of the ranchers' case (which the Court rejected last March), neither the Supreme Court nor any federal appeals court "has concluded that a term-of-years sentence violated the Eighth Amendment" in the quarter-century since Harmelin.

Although the Hammonds' lawyers tried, it is hard to argue that the five-year mandatory minimum their clients received is more disproportionate than the much longer prison terms that are routinely upheld by federal courts. It seems to me that what the Hammonds did—set fires that damaged someone else's property, even if unintentionally—is actually worse than possessing 672 grams of cocaine, which violates no one's rights and therefore should not be treated as a crime at all. Likewise possessing nine ounces of marijuana, a "crime" that Virginia chose to punish with 40 years in prison—a penalty that the Supreme Court upheld in 1982.

Drug penalties in Michigan and Virginia are not quite as harsh as they used to be. Michigan's mandatory minimum for possessing more than 650 grams of cocaine or heroin, which used to be  life without the possibility of parole, is now 20 years, and the time an offender serves can be shortened by parole. Virginia's maximum penalty for selling up to five pounds of pot is now 10 years. But there is still plenty of room for improvement, especially at the federal level, where nonviolent offenders can get sentences as long as life for violating the government's pharmacological taboos.

Congress is currently considering bipartisan legislation that would reduce some of those penalties, and legislators' willingness to vote for substantial reforms will depend on the reaction they expect from their constituents. The Hammond case is an opportunity to expand support for sentencing reform among conservatives who otherwise would not be inclined to sympathize with crack dealers, pot growers, and LSD distributors. The challenge for left-leaning critics of the war on drugs is to look past the antics of the Bundy bunch so they can see that they and the Hammonds' supporters are fighting for the same principle: The punishment should fit the crime.

This article originally appeared at Forbes.com.