Most Oregonians will long remember the 2016 takeover of the Malheur National Wildlife Refuge, which culminated in the shooting death of occupation spokesman LaVoy Finicum. Fewer will remember the cause around which the militants rallied: the unconscionable prison sentences handed Harney County ranchers Dwight and Steven Hammond.
The Hammonds, however, may soon return to public view in a significant way. According to The Oregonian, a Washington Post reporter contacted the Hammond family recently and suggested that President Trump was thinking about pardoning the two men. Here’s hoping he is and does.
The Hammonds, who inappropriately burned federal land more than a decade ago, are not entirely sympathetic characters. But federal prosecutors did everything in their power to make them so, thanks to a decision to charge them in 2010 under an anti-terrorism statute adopted following the Oklahoma City bombing. The Antiterrorism and Effective Death Penalty Act carries a mandatory-minimum sentence of five years for arson. According to a 2016 analysis by The Oregonian, the feds could have brought different charges carrying lighter sentences.
The Hammonds went to trial in 2012 and were convicted of arson for their roles in a pair of fires. In 2001, according to a 9th Circuit Court of Appeals decision, the Hammonds set fire to their property, ostensibly to eliminate invasive weeds. The fire spread and ultimately consumed 139 acres of public property.
In 2006, according to the court’s decision, a lightning storm started a number of fires near the area where the Hammonds grew feed. A burn ban was in effect, yet Steven, Dwight’s son, started back-burns near the edge of the family’s property. He did not seek a waiver, as he was required to do, and the fire spread to public land and consumed a whopping single acre.
While the jury, having settled the arson counts, was deliberating on other charges, the Hammonds and prosecutors struck an agreement. The Hammonds would accept the verdicts to date and waive their appeal rights. In return, prosecutors would recommend that their sentences would run concurrently.
During the October 2012 sentencing, U.S. District Court Judge Michael Hogan delivered a bombshell.
“I will impose a sentence that I believe is defensible under the law but also one that is defensible to my conscience,” Hogan said, according to The Oregonian. “I am not going to apply the mandatory minimum (which) would result in a sentence grossly disproportionate to the severity of the offenses here.”
The five-year sentence required by law violated the Constitution’s prohibition on cruel and unusual punishment, he argued. Moreover, as the 9th Circuit later noted, Hogan observed “that Congress probably had not intended for the sentence to cover fires in ‘the wilderness.’” No doubt.
And so Hogan sentenced Steven to 12 months and one day and Dwight to three months.
Federal prosecutors, unswayed by Hogan’s act of conscience, appealed. And in early 2014, a three-judge panel of the 9th Circuit said “no way” to the lighter sentences. Like it or not, it ruled, the law’s the law. The following year, the Hammonds were ordered to serve the rest of the sentences.
The 9th Circuit may, indeed, be correct about the law. But Hogan is equally right about the awful result of its application in this case. This is an ideal circumstance for a presidential pardon.