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.”
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).