Hammond’s Sentence: Just A Banal Miscarriage of Justice

That some crazies took over the administration building of the Malheur National Wildlife Refuge is a sideshow, having nothing to do with the sentences, and reversal and remand of those sentences, by the 9th Circuit in United States v. Hammond.  And none of the hoopla surrounding this craziness implicates the other sideshow, the racial divide in treatment by law enforcement. The signal to noise ratio surrounding the Hammonds’ case is off the charts, making it nearly impossible to focus on any particular salient issue.

And while each of these issues may be worthy of discussion, assuming anyone can focus sufficiently on one without devolving into the cesspool of craziness, the rationale of the 9th Circuit for reversing the sentence imposed by District of Oregon judge Michael Hogan is the sole issue this post will address.  Ken White does a “lawsplainer” at Popehat that addresses many of the other loose ends that seem to confuse people, and Patterico graciously provides much of the source material and an excellent overview.

After trial by jury, the two Hammonds, father and son, were convicted of two counts of arson each, under 18 U.S.C. § 844(f)(1).  Whether the conduct of the Hammonds was the sort of arson intended to be included within that section isn’t in issue, not because it cannot be questioned, but because the conduct falls within its parameters, and the jury convicted the Hammonds, who were acquitted of others, with some counts deadlocked. A deal was cut with the jury still out that the Hammonds wouldn’t appeal their conviction, would remain free on bond, the government would recommend a concurrent sentence for the arsons, and the remaining counts were dismissed.

By virtue of the offense of conviction, the Anti-Terrorism and Effective Death Penalty Act (AEDPA) imposed a mandatory minimum sentence of five years. At sentence, Judge Hogan said:

I am not going to apply the mandatory minimum and because, to me, to do so under the Eighth Amendment would result in a sentence which is grossly disproportionate to the severity of the offenses here.

And with regard to the Antiterrorism and Effective Death Penalty Act of 1996, this sort of conduct could not have been conduct intended under that statute.

When you say, you know, what if you burn sagebrush in the suburbs of Los Angeles where there are houses up those ravines? Might apply. 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. I am not supposed to use the word “fairness” in criminal law. I know that I had a criminal law professor a long time ago yell at me for doing that. And I don’t do that. But this — it would be a sentence which would shock the conscience to me.

While the construct of a mandatory minimum sentence is controversial and offensive (to many) in itself, there is no question but that Congress has the authority to craft mandatory minimum sentences for crimes.  They did so here.

Judge Hogan imposed a sentence of three months on the elder Hammond, and a year and a day on the younger (Ken explains why a year and a day is better than a year, as it allows Steven Hammond to get a “good time” reduction off the back end of his sentence).  The government appeals, as is typical (but not required) when a court fails to impose a mandatory minimum, and the Ninth Circuit reversed.

Given the seriousness of arson, a five-year sentence is not grossly disproportionate to the offense. The Supreme Court has upheld far tougher sentences for less serious or, at the very least, comparable offenses.*

With this rationale, the circuit dismissed the sentencing judge’s refusal to impose the mandatory minimum pursuant to the Eighth Amendment, under the rubric that it “shocks the conscience.”

Ken explains:

It’s arguable whether the five-year sentence is colloquially cruel and unusual, or whether the law should treat it as a violation of the Eighth Amendment. But there’s no serious argument that the sentence is cruel and unusual under existing Eighth Amendment precedent. 

At Fault Lines, Noel Erinjeri similarly explains:

It had nothing to do with punishing the Hammonds for their wrongdoing, or with protecting the good people of Oregon. It had to do with teaching the judge a lesson: mercy is not allowed.

One has to have some sympathy for the Ninth Circuit in this case. Faced with a trial judge who imposed an illegal sentence, they had to send it back.

Ken and Noel are correct, assuming one accepts the premise that bucking the rote application of law cannot be accomplished.  There is no specific precedent demonstrating that Judge Hogan’s reasoning has been expressly rejected by a higher court as to the same crime, same circumstances. By analogy, the circuit reversed, and its reversal was, as Ken describes it, banal.

In contrast, I submit that the 9th Circuit’s rationale is inadequate and flawed. That there have been other miscarriages of “justice,” of proportionality, of inclusion of an offense within a law where the offense falls outside the “heartland” of the crime, is not a proper or rational basis for rejecting, out of hand, the sentence of a judge that refuses to perpetuate an injustice.  While it is left to Congress to pass laws, it is left to the courts to determine whether those laws, as applied, violate the Constitution’s prohibition of cruel and unusual punishment.

Noel characterizes the sentence as “illegal,” noting that just as a sentence in excess of the statutory maximum must be reversed, so too should a sentence below the mandatory minimum. While his point is well taken, that we would properly rail against an excessive sentence, the two are not comparable, and the illegality of an excessive sentence does not demand the same recourse as a sentence below the minimum, given the “escape valve” of the Eighth Amendment, which provides a constitutional basis to relieve a defendant from excessive punishment. Because it’s grounded in the Constitution, it trumps Congress’ imposition of a statutory mandatory minimum on the court.

That miscarriages of justice happen all the time tends to inure lawyers, and judges, to the damage done by poorly conceived and written laws. We shrug it off, stercus accidit. This isn’t a justification, but an abdication on our part of the duty to do better than perpetuate miscarriages of justice. Not only should we fight against them, but we should fight against the tide of our routine acceptance of them as just the way things are.

Judge Michael Hogan demonstrated the rare bravery of refusing to adhere to the routine of imposing a sentence that shocked his conscience, and proffered a reason for his refusal to impose the mandatory minimum that, at the very least, was legitimate if disputable.  The circuit’s rationale for rejecting it, that miscarriages are so banal that it’s no big deal, is morally bankrupt.

But the fact that criminal defense lawyers accepted the circuit’s vapid rationale so readily is even worse.  Rather than agree with ordinary injustice, it should be our responsibility to fight Eighth Amendment sentencing violations at all levels and in all instances, and support those sentences where a judge has shown the fortitude to refuse to perpetuate miscarriages of justice.

That we, too, have become so inured to harshness and impropriety that we can no longer muster the courage to argue against it is unacceptable. We can at least be as courageous as Judge Hogan, and we should be that brave in every instance of a banal miscarriage of justice.

*The balance of the paragraph of the opinion provides a laundry list of examples of “far tougher for less serious” offenses:

See Lockyer v. Andrade, 538 U.S. 63 (2003) (upholding a sentence of fifty years to life under California’s three-strikes law for stealing nine videotapes); Ewing v. California, 538 U.S. 11 (2003) (upholding a sentence of twenty-five years to life under California’s three-strikes law for the theft of three golf clubs); Hutto v. Davis, 454 U.S. 370 (1982) (per curiam) (upholding a forty-year sentence for possession of nine ounces of marijuana with the intent to distribute); Rummel v. Estelle, 445 U.S. 263 (1980) (upholding a life sentence under Texas’s recidivist statute for obtaining $120.75 by false pretenses). And we and other courts have done the same. See, e.g., United States v. Tolliver, 730 F.3d 1216, 1230–32 (10th Cir. 2013) (upholding a 430-month sentence for using arson in the commission of a felony); United States v. Major, 676 F.3d 803, 812 (9th Cir. 2012) (upholding a 750-year sentence for offenses under 18 U.S.C. § 924(c)), cert. denied, 133 S. Ct. 280; United States v. Meiners, 485 F.3d 1211, 1212–13 (9th Cir. 2007) (per curiam) (upholding a fifteen-year sentence for advertising child pornography); United States v. Uphoff, 232 F.3d 624, 625–26 (8th Cir. 2000) (upholding a five-year sentence for arson of a building).


22 thoughts on “Hammond’s Sentence: Just A Banal Miscarriage of Justice

  1. Bob

    In reviewing the source material provided by Patterico, I couldn’t help but notice that the sentencing took place 2 days before Judge Hogan retired. In fact, it looks like Judge Hogan moved up the sentencing hearing (over the government’s objection) so he could be the one to sentence the Hammonds rather than his successor. While I admire the Judge’s willingness to deviate from the mandatory minimums, it’s easier to be courageous on your way out the door.

    1. SHG Post author

      Usually, they wait until after they’re out of office to get a conscience, when they can no longer do anything about it. It may not be optimal to find one’s courage on the way out the door, but it’s far better than never.

  2. Richard G. Kopf


    If one of the counts of conviction included relevant conduct involving the 13-year-old kid who almost got burned up ’cause he set the fire at the direction of the adults, then the sentence does not trouble me. All the best.


      1. Richard G. Kopf


        Yes, I think that’s fair. I don’t question his original sentence from an equitable perspective. I was responding to the 8th Amendment issue you properly raised about the statutory minimum. All the best.


        1. John Barleycorn


          Well, I shudder to think what sort of diffrent cerebral freeways might have been paved in your cerebral passageways had your brother turned your smokey into smoke instead of giving him a bath.

          For those back page readers of SJ that may be unaware the robed rider is an honorable legal realist who likes to waltz with utilitarian spirts when he is talking in his dreams, and it may serve you well to sift through the straw while searching all sorts of verbs and adjectives associated with sentencing, bears and all, over at RGK’s not soon to be forgotten and perhaps one day, all dried out and ready for hugs, torches, and buckets of water blawg Hercules and the Umpire. Which to his credit remains intact as a sort of beacon on the great americian plains.

          Anyway, his archive is arguably must read material on sentencing perspective if you seek some perspective as to the grinding wheels of justice’s flour mill.

          That all being said when there is no real harm to an individual there is no place for retribution even if the legislative branch says so. His Honor might not agree with some of that but he hasn’t hung up his robe yet either.

  3. Richard G. Kopf

    John B.,

    My damn brother threw Smokey into the bathwater, and since he was stuffed with straw probably culled from a stable, he stunk like a bear in the woods. Which brings to mind the great philosophical question of all time: If a bear shits in the woods and there is nobody around to smell it, . . . .

    All the best.


    1. John Barleycorn

      Shitisims, not even Kant had something to say about them.

      P.S. I wonder if that guy from Iowa who is running for re-election, Judicial Comimitee staff would give me a call now and then instead of sending me form letters in response to my, suggestions for your consideration,  letters, if I sent them a case of blueberries and some smoked salmon?

      All that corn can’t be good for their gastrointestinal health unless they are distilling a portion of it for less conventional transport means of the cocktail variety as they distill their agenda.

      One would think blueberries and smoked salmon to would be a welcome reprieve from corn chips when sipping moonshine around the winter campfire of sentencing reform out in front of the fur shed.

    2. jill mcmahon

      Having stepped over it any number of times in northern Maine, (black) bear shit does not stink much one way or the other.

      1. John Barleycorn

        Stepping over the shit sounds suspiciously like sentencing reform, it stinks too…I wonder if anyone will notice?

  4. Ken

    Scott, I have no problem with the concept of continuing to fight against injustice.

    But as you quoted, this is what I said: “But there’s no serious argument that the sentence is cruel and unusual under existing Eighth Amendment precedent.”

    And I stand by that. I think existing Eighth Amendment precedent is unjust. I would attack it as wrongly decided if the opportunity arose, in the hope that courts might one day change, as they’ve changed on other issues.

    I just don’t see a serious argument that this sentence is more cruel and unusual than much longer sentences for much less serious crimes upheld in other cases. I won’t pretend otherwise in an analysis of a situation where the sentence is being cited as evidence of a corrupt court or an unprecedented injustice, which it isn’t.

    1. SHG Post author

      There was an argument serious enough that it came from a District Judge, that the mandatory min sentence shocked his conscience. That’s pretty serious. But your argument, that the sentence was no “more cruel and unusual than much longer sentences for much less serious crimes” can be viewed as a reason to give up in the face of banal injustice, or a reason to fight harder. Is the answer that this sentence was fine, or that the other sentences were wrong as well?

      If you aren’t good with the sentence, then acquiescing to it just because there are worse miscarriages of justice isn’t a very principled stance. This is exactly what we fight against; just because we’ve lost before doesn’t mean we quit.

      1. Ken

        I don’t advocate giving up. I do advocate a frontal attack on precedent rather than a very unconvincing argument that precedent doesn’t exist.

        1. SHG Post author

          I saw no argument that precedent doesn’t exist. They were appellees, not appellants. They prevailed at the district court, but were blown off with a two sentence response by the circuit.

          Given the seriousness of arson, a five-year sentence is not grossly disproportionate to the offense. The Supreme Court has upheld far tougher sentences for less serious or, at the very least, comparable offenses.

          And you find this acceptable? I do not. Not at all. I fail to comprehend how anything about this gives rise to an assertion that they made “a very unconvincing argument that precedent doesn’t exist.” That is a complete mystery.

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  6. Eliot clingman

    You have a good 8th amendment argument. The 6th amendment logically applieseven more: since the “trial penalty” is extremely high, the right to fair and public trial is effectively destroyed and has been replaced by secret and arbitrary pleas. At this time the supremes would reject the argument, but a gradual sea change is happening.

  7. Ken Mackenzie

    People often overcomplicate the discussion of mandatory sentencing. It is the nature of a mandatory sentence that it must be imposed, even when it is unjust to do so. Mandatory injustice. You can be for mandatory sentences or you can be for justice, but not both.

    1. SHG Post author

      It is the nature of a mandatory sentence that it must be imposed, even when it is unjust to do so.

      True, but too superficial to be of much use. Laws are written with words, and words are imprecise and fail to cover every potential scenario people can manage to create. So, we have an escape hatch, the 8th Amendment, that gives us a theoretical out when the clash between law and manifest injustice occurs. There can be both, though courts are very reluctant to use the escape hatch, as it’s usually impossible to draw a clear line to decide when it’s been crossed.

      But as here, where a judge does decide the line has been crossed, the rarest of occurrences, it should not be curtly dismissed. It may well be reversed, but at the very least should be taken seriously.

      1. Ken Mackenzie

        That’s true too, and useful on one of the two fronts. In court, in the law, you fight with what you have. Push for the widest application of those imprecise words in the 8th Amendment. In public debate, on the soapbox, there’s a more important point, one you’ve made cogently before. Constitutional or not, a bad law is still bad. Mandatory sentencing is always bad law.

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