The dispute between Oregon ranchers Dwight and Steven Hammond and the federal government would not seem like the type to ignite a standoff by armed protesters. But sometimes the facts get lost amid the long-brewing conflict between private landowners in the West and their neighboring landlord, the Bureau of Land Management.
The case also revives the controversy around mandatory minimum sentences, which many advocates feel require judges to issue unfairly long prison terms, often in drug cases, which Congress is gradually addressing. The original judge in the Hammonds’ case elected to defy the mandatory minimums after their convictions, setting up the protests on behalf of the ranchers when they were resentenced to five-year terms.
The facts are these, court records show:
1.) The Hammonds admitted to, and were convicted of, setting two small fires that had nothing to do with the unrest over how the Bureau of Land Management rules its own land. In Harney County, Ore., roughly 75 percent of land is federally owned.
2.) The key witness against them in the first fire was Dwight Hammond’s then-13-year-old grandson, Dusty, who said he and four of his relatives set the fires at his family’s instruction to conceal their illegal deer hunting, and that he nearly died when the flames quickly surrounded him. He said the fires were set because his uncle, Steven Hammond, wanted the evidence of their hunt destroyed. Prosecutors said the fires also were intended to chase away witnesses who’d seen them hunting illegally.
3.) The Hammonds claimed that the second fire was set as a “back fire” on their own property to protect it from wildfires sparked by lightning. But trial testimony showed that the back fires were actually set more than a mile from the Hammonds’ ranch, on federal land.
4.) After a jury convicted both Hammonds of some counts, but was still deliberating on others, the Hammonds accepted the convictions and agreed not to appeal, in exchange for the government not seeking consecutive sentences and dropping the remaining counts. The prosecutor told them they still faced five-year mandatory minimum sentences for the convictions, court transcripts show.
5.) The sentencing was handled four months later by U.S. District Judge Michael R. Hogan, in his last day on the federal bench after 39 years. He elected to ignore the five-year mandatory minimum terms because he felt it was “grossly disproportionate to the severity of the offenses here,” instead sentencing Dwight Hammond to three months and Steven Hammond to a year and a day. The government appealed, as it routinely does in cases where judges defy mandatory minimums, and a federal appeals court ordered the Hammonds resentenced. A new judge gave them five-year terms in October, and allowed them until January to surrender.
6.) The Hammonds’ lawyer has made it clear publicly that they are not affiliated with the armed group now occupying the Malheur National Wildlife Refuge. Their lawyers released a statement Monday saying that “Dwight and Steven Hammond respect the rule of law. They have litigated this matter within the federal courts for over five years and, in every instance, have followed the order of the court without incident or violation. ... As the Hammonds have previously stated, they will be reporting to the United States Bureau of Prisons today to serve their sentences.”
The Hammonds have run their cattle ranch in southeast Oregon since 1964, according to court documents, on a combination of public and private land. “It is essentially a two-man operation,” attorneys Marc D. Blackman and Lawrence H. Matasar wrote in 2012: Dwight Lincoln Hammond Jr., now 73, and Steven Dwight Hammond, now 46.
The Hammonds owned over 10,000 acres of private pasture, and had a BLM permit authorizing grazing on tens of thousands of acres of adjacent public land, their attorneys wrote. In 1999, after setting fires on their own property which spread to federal land, they were warned that they would be prosecuted if that happened again.
“Steven and Dwight Hammond opposed the BLM’s management policies of that property,” assistant U.S. attorney Frank R. Papagni Jr. wrote in a sentencing brief last September. “While having the right to disagree with such policies, a jury found the Hammonds had no right to burn those public lands regardless of their purported motives.”
Prosecutors said that trial testimony from both Dusty Hammond and three nearby hunters showed that on Sept. 30, 2001, Steven Hammond provided matches to his 13-year-old nephew and other family members “less than three hours after Steven Hammond illegally shot several deer on BLM land.”
Dusty Hammond testified that he “thought (he) was going to get burned up” and dove into a nearby creek to escape the flames. Almost 140 acres were burned and unavailable for planting in the next two seasons, prosecutors said. They said the possibly fatal danger to Dusty Hammond increased the seriousness of the crime.
In August 2006, Steven Hammond’s attorney said, the younger Hammond intentionally set a fire on his own property to head off an approaching blaze sparked by lightning. But BLM firefighters were nearby and one testified that the “spot fires” set by Steven Hammond were more than a mile from the ranch property.
In June 2012, after an eight-day trial, the jury deliberated until nearly 11 p.m. one night, telling Hogan it had reached verdicts on some counts but not on others. They revealed their verdicts and went back to deliberate some more. During that deliberation, the government and the defense reached an agreement to end the trial with the verdicts already reached.
Hogan scheduled the sentencing for October 2012, his final day on the bench, and opined that five-year sentences were simply unfair for the Hammonds, who were well-respected in the community. Dwight Hammond had no prior record, Steven Hammond only misdemeanors.
It is a quandary federal judges have faced since the 1980s, when Congress enacted harsh penalties for even small amounts of drug possession, and then again after the 1996 Anti-Terrorism and Effective Death Penalty Act, which added mandatory minimums for “a laundry list of existing statutes,” the Hammonds’ lawyers wrote.
Hogan said five years for “using fire to damage or destroy property of the United States” was simply too much. “This sort of conduct could not have been conducted intended under that [anti-terrorism] statute,” the judge said. “Out in the wilderness here, I don’t think that’s what the Congress intended. And in addition, it just would not be — would not meet any idea I have of justice, proportionality.”
Hogan gave sentences in accordance with what federal sentencing guidelines would have provided the Hammonds if the mandatory minimums weren’t applicable. The Hammonds surrendered in early 2013 and served their sentences while the government appealed. In March 2015, the Ninth Circuit Court of Appeals sent the case back for resentencing, ruling that “given the seriousness of arson, a five-year sentence is not grossly disproportionate to the offense.”
Kevin Ring, director of strategic initiatives for Families Against Mandatory Minimums, said in a statement that mandatory minimums “upset the local community and violate, as all mandatory minimum sentencing laws do, the fundamental American principle that the punishment should fit the crime.”
Ring said Hogan was a seasoned federal judge, appointed by a Republican president, who properly imposed his sentences after hearing the evidence and considering the unique and relevant facts.
“If this were how our criminal justice system worked, we might not be experiencing the protests we see today in Oregon,” Ring said. “Federal mandatory minimums once again have destroyed a local community’s ability to hold its citizens accountable. ... The 535 individuals who served in Congress 20 years ago, who know nothing about the ranchers’ case, fixed their sentence – and stoked a community’s outrage.”