In the early hours of the morning, law professors wonder whether anything we do makes the world a better place.
Today, I feel pretty sure that the answer is yes. That’s because, on January 28, I awoke to a televised image of Ammon Bundy’s lawyer, Mike Arnold of Eugene, Oregon, reading a statement urging the other Malheur protesters to stand down. Arnold is a former student of mine. So is Tiffany Harris of Portland, who represents Shawna Cox, the 59-year-old woman who was arrested in the car with LaVoy Finicum, the militant spokesman who was shot during a traffic stop near the occupied Malheur National Wildlife Refuge.
I couldn’t be prouder.
That’s not because I like their clients. I taught Mike and Tiffany during 16 happy years at the University of Oregon School of Law. During that time, I also taught students who had grown up on ranches in the eastern desert, on farms in the state’s irrigated south, on hippie settlements on the rain-drenched Oregon coast, on the state’s Indian reservations, in the Willamette Valley wine country, and in the sophisticated urban areas around Portland. Oregon, a state the size of Italy, supports a population roughly half the size of New York City. Much of the state is desert or forest; its ecosystems are exquisite but fragile. It is a place that needs careful tending. And by and large, those who live there take that responsibility seriously. Land-policy issues—and there are many—tend to be resolved through painstaking negotiations among local farmers and ranchers, Indian tribes, urban dwellers, and state and local governments.
Some people, however, don’t believe in negotiation, or indeed in what most of us call law. Living in Oregon, I also met many local “militiamen,” attended their meetings, and even visited one in jail. Their program for federal land is dangerous—the end of federal stewardship, or even a radical cutback, would be catastrophic for Western lands. Their constitutional theory, too, is toxic. It has evolved out of the semi-literate, overtly racist theories of Mormon extremist W. Cleon Skousen. In essence, it proclaims the sovereign prerogative of white Christian men to take what they want and justify it in the name of an imaginary “organic Constitution” untainted by equality for women, nonwhites, immigrants, or religious minorities. I despise everything the Malheur occupiers claim to stand for.
But if there is one thing law professors tell students, it is this: Under the Sixth Amendment to the Constitution, every defendant is entitled to “assistance of counsel for his [or her] defense.” In a just society, government should ensure that no person is convicted or imprisoned who has not had a fair trial, with a lawyer equipped and willing to speak for him or her. When asked to be part of that process, lawyers have a calling to step forward if they can help. A recent report on Oregon Public Broadcasting raised questions about the firm's contacts with Bundy before his arrest. Arnold told me that lawyers from his firm contacted private ethics counsel about whether they could approach the occupiers “and help them defuse the situation.” After that, they sent a letter and held a brief meeting. “We did advise them that they should talk to a lawyer,” he added. In a statement, the firm said, “There is a right to counsel, and attorneys are encouraged to make themselves available and even to represent the most unpopular of causes.”
Non-lawyers, as a group, generally do not understand this. Sympathetic lawyers in crime fiction usually insist they will only defend the innocent. Authors paint that attitude as noble and representing the guilty as depraved. Defense lawyers in crime dramas tend to be crooked bottom-feeders. Lawyers working with the American Civil Liberties Union are sneeringly called “the criminals’ lobby.” Liz Cheney smeared Justice Department lawyers as “the al-Qaeda seven” because, while in private practice, they represented Guantanamo detainees pro bono.
It’s a corrosive and dangerous myth. And it links up with another American myth—one the nation has lived under for more than a quarter century: The solution to crime, social conflict, and persistent injustice is not reform, not increased democracy and equality, not social improvement—but police, courts, and prisons.
Today, Americans show signs of waking from the nightmare of a prison nation. Policy-makers are taking, for the first time, sober stock of the damage done by mandatory minimums, solitary confinement, and a prison population of nearly 2.5 million—more than China, more than Russia, more than any nation, democracy, or dictatorship on Earth.
It’s easy to decry over-criminalization and mass incarceration in the abstract; it’s hard to do in particular cases. Remember that the initial protest in Burns, Oregon—the peaceful, entirely appropriate protest organized by the local people there, exercising their First Amendment rights—was not over federal land ownership but against the mandatory-minimum sentences imposed on two local ranchers, Dwight and Steven Hammond, for arson on federal land. The Hammonds had deliberately set fires, in part to cover up evidence of their own illegal poaching. Their actions endangered the lives of firefighters, and the Hammonds abused a child, using violence and the threat of violence to keep this family member from revealing what they had done.
They were, in short, bad people, and many progressives seized on this fact to argue that, as Ian Millhiser put it, “[I]f criminal justice reformers are looking for an example of the gross injustices that can result from mandatory minimums, Dwight and Steven Hammond are odd choices.” But, as we say where I grew up, that don’t really signify. Criminal defendants tend to be “bad people.” In assessing the U.S. justice system, the issue isn’t what they are; it is what “we the people” are. Mistreating bad people is still mistreating people; and the American system frequently does that.
The Hammonds were both sentenced to five years in federal prison. Those sentences were not selected as the right punishment for these offenders and this crime; they were required by the Antiterrorism and Effective Death Penalty Act of 1996, a hideous artifact of the bipartisan incarceration frenzy of the 1990s. AEDPA, for one thing, bars habeas corpus relief for many state prisoners even when their imprisonment is unconstitutional; for another, it imposes mandatory federal minimum sentences for certain “terrorism” crimes, like arson on federal land. In the Hammonds’ case, the federal district judge sentencing them defied AEDPA and gave more lenient sentences; the Ninth Circuit set aside those sentences because the statute required the minimum—a sentence even the government considered too harsh. The Ninth Circuit was right to follow the law. The law, however, is wrong. The people of Burns had every right to express their concern about how the mandatory minimums were playing out in the Hammond case. Their protest was a part of the national discussion of crime policy, their voices as worthy to be heard as any other. Neither they, nor the Hammonds, were responsible for what happened next.
Led by the Bundy brothers, who are from Nevada, the Malheur occupiers stormed into Harney County from outside. While they preened for the cameras, the occupation itself terrified the local population and paralyzed the county; some intruders intimidated residents with guns and threats; others apparently plowed up sacred Indian sites. The Wildlife Refuge they befouled is an important engine of the local economy; even if all of them leave it tomorrow, the scars they have inflicted on that small community may be a long time healing. The people of Burns didn’t ask for, or deserve, an invasion by out-of-state thugs with long guns and un-thumbed Constitutions.
But even thugs, once they are under arrest and facing the wrath of the most powerful nation on Earth, are entitled to due process of law and to lawyers skilled enough to make sure they get it. Conscientious lawyers will make sure that they are punished only on findings of guilt. Conscientious lawyers will also make sure they don’t serve more time in prison than their crime of conviction justifies.
Training conscientious lawyers is what law professors are paid for. I don’t deserve credit for what my students do; but I take comfort from it nonetheless.