Oregon and the Injustice of Mandatory Minimums

The activists who began occupying government buildings in the Oregon wilderness over the weekend say that they’re protesting how federal authorities treated rancher Dwight Hammond, 73, and Steven Hammond, his middle-aged son.

Federal authorities charged the Hammonds with arson after they set a series of fires that spread to public land. A 2001 fire accidentally burned beyond their property line, according to The New York Times. The Department of Justice says it was set to cover up an illegal deer hunt, while the men say that they were burning away an invasive plant species on their land. Years later in 2006, “a burn ban was in effect while firefighters battled blazes started by a lightning storm on a hot day in August,” the newspaper reported. “Steven Hammond had started a ‘back burn’ to prevent the blaze from destroying the family’s winter feed for its cattle.” It was reported by Bureau of Land Management firefighters in the area, and the Justice Department notes that they “took steps to ensure their safety.” It burned about an acre of public land, causing less than $1,000 in damage. Charged with a number of crimes related to arson, the father was convicted of just one count of arson while the son was convicted of two counts for the wilderness fires. The government used an anti-terrorism statute to secure its convictions.

The statute imposed a mandatory minimum sentence: 5 years imprisonment under the Orwellian-sounding Antiterrorism and Effective Death Penalty Act of 1996. U.S. District Judge Michael Hogan felt that five-year sentences were “grossly disproportionate” and would “shock his conscience,” given the context of the case. He sentenced the older man to three months in federal prison and the son to concurrent one-year sentences. Those punishments inspired no radical activism.

What happened next, did. The Department of Justice appealed the sentences, won in the 9^th Circuit, and is forcing the men to return to prison after they thought they had done their time. Both will now serve the mandatory-minimum sentence.  

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When HBO’s John Oliver broadcasts a polemical monologue, its subject is invariably something that America’s Blue Tribe—Americans whose place on the cultural and ideological left forms a core part of their identity—regards as idiotic, evil, or both. Last Week Tonight helps its audience indulge in collective outrage.

Earlier this year, Oliver skewered mandatory minimums. The laws “require judges to punish certain crimes with a minimum number of years in prison, regardless of context,” he explained, “which is a little strange, because context is important.” He added that “they’re partly responsible for the explosion of our prison population,” noting that many judges oppose them because they hand power over sentencing to prosecutors, who frequently “use the threat of long mandatory minimums to convince defendants to take a plea bargain or cooperate by giving information.”

The segment even highlighted the sort of people given mandatory minimums that Last Week Tonight’s target demographic was likely to find sympathetic: men and women, some with children, given long sentences in a drug war the blue tribe regards as unjust and pointless. Most every major media outlet on the center-left has run some version of that story over the last several years, and liberals and progressives eagerly shared Oliver’s takedown and its predecessors on social media.

I loved the segment.

Mandatory minimums really are objectionable as a matter of principle, as a policy that has resulted in countless individual injustices, and as a significant driver of over-incarceration.

In theory, those on the left who care about vanquishing mandatory minimums could have used the news story about the Hammonds to broaden awareness and opposition to the practice among members of the Red Tribe. Libertarian intellectuals oppose mandatory minimums. Why not the populist right, too? Some folks in rural areas who’ve never known about the laws, or think that they only affect people in cities, might change their minds if they were to find out that what happened to the Hammonds is routine; that many Americans have suffered far more egregious sentences; and that mandatory minimums affect all sorts of defendants.

Yes, the Oregon protestors have a larger agenda about the management of federal lands in the West and the degree to which they ought to be under local control.

Still, in their opposition to mandatory minimums, they share common ground with the left.

As Jacob Sullum explains, the judge who tried to impose lesser sentences on the Hammonds chose punishments “within the ranges recommended by federal sentencing guidelines that would have applied but for the statutory minimum.” In doing so, he argued that mandatory-minimum laws run afoul of the Constitution’s prohibition against cruel and unusual punishments, legal reasoning that surely appeals to at least some leftist opponents of mandatory minimums.

Sullum helpfully summarizes the 9th Circuit’s logic in imposing the five-year sentence on the Hammonds, which many longtime opponents of mandatory minimums will find perverse:

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.

This might have served as a rallying cry for opponents of mass incarceration.

“While federal management of public lands is legitimate and occupying a federal facility is unjustified,” a left-leaning publication might have editorialized, “it’s easy to see why the Hammond case struck some observers as unjust. The notion that judges are there to exercise discretion based on context––that it’s odious to force them to give severe sentences even when they judge them to be ‘grossly disproportionate’––is exactly what criminal-justice reformers have long argued. There have been bipartisan reforms on this issue before. Let’s abolish all mandatory minimums for good through the civic process, not counterproductive armed protests.”

Instead, many left-leaning commentators are savaging the protestors in ways that can’t be exaggerated. Take David Atkins, who labels them terrorists in the Washington Monthly:

I don’t want to dwell too much on the rationales and motivations for these domestic terrorists any more than I would for the people who fight for ISIS or Al Qaeda. It’s always the same thing: a group of armed, angry men believe that the Big Bad Western Government is infringing on their right to do whatever it is they very well please—whether it’s to the environment, or to minorities, women, people of different religious groups, etc. Undereducated, armed angry men are often upset at Western governments for upsetting their private power apple carts because in their small, solipsistic worlds they’re very used to being lords of their manors and local enforcers of bigoted frontier justice. That’s as true of Afghan militants in the Taliban as it is of rural Montana militiamen. The only difference is in the trappings, the external presence of the rule of law and the degree of violence involved.

The blogger Scott Alexander once argued with more detail than I can quote here that “if you’re part of the Blue Tribe, then your outgroup isn’t al-Qaeda, or Muslims, or blacks, or gays, or transpeople, or Jews, or atheists—it’s the Red Tribe.”

The Washington Monthly article continues:

What’s more interesting to focus on is the response to the incident so far. As with ISIS, the Bundy clowns are actively seeking a confrontation with the big bad wolf of Big Western Government. They believe that an active confrontation will spark a movement that will lead to the overthrow of Big Brother. So far, especially after the incidents at Ruby Ridge and Waco, American leaders have been disinclined to give those opportunities to the domestic militiaman terrorists. Cliven Bundy and his miscreants got away with a wide range of crimes due to the forbearance of federal officials.

But the problem with taking that hands-off approach is that the treatment of left-leaning protesters is far different. Occupiers and Black Lives Matter protesters aren’t met with hand wringing and gentle admonishments. They’re met with batons and tear gas. If Black Lives Matter or Occupy protesters started arming themselves and taking over federal buildings, you can guarantee that police would start using live ammunition and people would die. So on the one hand it’s understandable that federal officials would not want to make martyrs of the right-wing domestic terrorists who are actively seeking to engage in a confrontation and make themselves appear to be downtrodden victims of the federal beast. But on the other hand, it’s infuriating that they receive special kid glove treatment that would not be afforded to minority and liberal activists.

The article concludes, “As much as restraint is the better part of valor when dealing with entitled conservative crazies, principles of basic justice and fair play also need to apply. What’s good for one type of terrorist must also be good for another.” That’s a call for the use of violence against specific Americans, framed as a demand for equality! It is bizarre that the author name-checks Ruby Ridge and Waco as he argues that white-male extremists in the Red Tribe get “kid glove” treatment––and seems stranger still with new information trickling out each month about how many bikers in last year’s Waco shootout were hit by police bullets.

Blacks and Hispanics do suffer disproportionately from police violence. I’ve written repeatedly about the egregiously unfair treatment of some Occupy protestors and the scandalously militarized response to street protests in Ferguson. But there are lots of examples of Occupy protestors who were met with no more than “hand wringing and gentle admonishments” even as they violated the law. Lots of Black Lives Matter protestors have engaged in civil disobedience without arrest.

I don’t know if there’s a double standard that causes Team Blue’s activists to be treated more harshly by authorities, but if there is, it would be no excuse for calling on police to use live ammunition more often rather than demanding that they evenhandedly exercise more restraint.  “Self-proclaimed people of conscience interested in reducing and even eliminating excessive state violence should not make exceptions just because government violence might satiate their sectarian desires or partisan agendas,” Ed Krayewski persuasively argues. “...those exceptions easily become the rule by being exploited by other sectarians and partisans.”

Alas, the Washington Monthly author is hardly alone. “The Oregon men are domestic terrorists,” a CNN opinion article declares. On Twitter, folks on the left have dubbed the Oregon activists “Vanilla ISIS,” “Y’all Qaeda,” and “YokelHaram.”  

Criticizing the armed occupiers is perfectly fine. They are acting irresponsibly, illegitimately, and based on some bad premises. They should abandon their counterproductive, doomed protest right now before they do harm to innocents or themselves, and instead pursue their grievances through civic persuasion. But all they’ve done so far is occupy a federal building in the wilderness when no one was using it. It is at least possible that in doing so they are calling attention to real misbehavior by the federal government. No tribe that customarily extols civil disobedience should first condemn them without taking the time to investigate the accuracy of their claims about that misbehavior.

And likening them to mass murderers amounts to irresponsible, indefensible demonization. It is unimaginable, save for the fact that the targets of state violence in this case are rural white men from the Red Tribe.

Thankfully, more responsible voices on the left are meeting tribal illogic and demonization with reason. “I understand the gut satisfaction of fantasizing about a Bonnie & Clyde style shootout that leaves the headquarters of the Malheur National Wildlife Refuge soaked in terrorist blood, but that's really not what any of us should want,” Kevin Drum writes at Mother Jones. “These guys aren't terrorists, anyway. They're just as misguided as real terrorists, but they haven't taken anyone hostage or threatened to blow up an airplane.” I don’t actually understand why a shootout is appealing even as fantasy, or how someone can be “just as misguided as real terrorists” without committing any acts of terrorism, but I’ll take it.

“What we must not do,” Margaret Corvid writes at Jacobin, “is call for the police to move in with the tear gas and rubber bullets of Ferguson and Baltimore, or the live rounds of MOVE or Wounded Knee, because equal injustice is not justice done.”

Quite so.

We’d all do better to focus on forging red-blue alliances to address injustices of common concern rather than behaving as if it is either useful or morally righteous to denounce, demonize, and dehumanize the members of opposing ideological tribes.

Proponents of using civil disobedience to draw attention to government injustices ought not conflate those who engage in that tactic with ISIS, Al Qaeda, or the Taliban. Opponents of mandatory-minimum sentences should oppose them in this case, too, even though there are far more egregious cases to highlight. Opponents of over-incarceration should look askance at sending an elderly man to prison for five years––two years more than Mike Tyson served for rape––even if he did set a fire to hide an illegal deer hunt. And opponents of overly broad domestic-terrorism laws should object to how the ranchers were prosecuted under them for non-terroristic acts. Why is cooperating on those concerns so hard for so many who share them?