The first fire set by the Hammonds, which Steven Hammond said was intended to eliminate invasive species on their property, ended up consuming 139 acres of federal land. The second fire, which was aimed at protecting the Hammonds’ winter feed from a wildfire sparked by lightning, burned about an acre of public land. Although the Hammonds did not seek the required government permission for either burn, the damage to federal land seems to have been unintentional. In 2012 they were nevertheless convicted under 18 USC 844(f)(1), which prescribes a five-year mandatory minimum sentence for anyone who “maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive,” any federal property.
If that’s the case, then I don’t see how what he did rises to the level of “malicious.”
Viewing that penalty as clearly unjust given the facts of the case, U.S. District Judge Michael Hogan instead imposed a three-month sentence on Dwight Hammond, who was convicted of one count, and two concurrent one-year sentences on Steven Hammond, who was convicted of two counts. Those terms were within the ranges recommended by federal sentencing guidelines that would have applied but for the statutory minimum, which Hogan rejected as inconsistent with the Eighth Amendment. Last year the U.S. Court of Appeals for the 9th Circuit, responding to a government appeal, disagreed with Hogan, saying he had no choice but to impose five-year sentences on both men, since “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 Saturday’s protest.
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.
Translation: The Ninth Circus was in the Hunt for a Great White Defendant.