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October 31, 2012

Federal district judge refuses to apply arson mandatory minimum (on constitutional grounds?)

This local article from Oregon reports on what appears to be a significant sentencing decision by a federal district judge concerning the application of a mandatory minimum provision.  Here are the details:

Rejecting mandatory minimum five-year sentences as “grossly disproportionate” to the crimes, a federal judge in Eugene on Tuesday sentenced an Eastern Oregon rancher to three months in prison and his adult son to one year and a day for deliberately setting fires on federal land.

A federal jury in June convicted the Harney County pair after a two-week trial in Pendleton. Jurors convicted Dwight Hammond Jr., 70, on a single count of arson for “intentionally and maliciously” setting the 2001 Hardie-Hammond Fire in the Steens Mountain federal management and protection area.  They convicted Steven Dwight Hammond, 43, of the same crime and of a second arson count for similarly setting the 2006 Krumbo Butte Fire.  It burned in the same area and in the Malheur National Wildlife Refuge.  The jury acquitted both men on arson charges in two 2006 fires.

U.S. Judge Michael Hogan agreed with the Hammonds’ defense lawyers that setting fire to juniper trees and sagebrush in the wilderness was not the type of crime that Congress had in mind when it set mandatory sentences of five to 20 years for anyone who “maliciously damages or destroys, or attempts to damage or destroy by means of fire” any federal property. The mandate was part of the Antiterrorism and Effective Death Penalty Act of 1996.

Prosecutors alleged that the father-son owners of Hammond Ranches Inc. set a series of fires on U.S. Bureau of Land Management land where the Hammonds had grazing rights. Prosecutors said the fires were set to reduce the growth of juniper trees and sagebrush, and to accelerate the growth of rangeland grasses for the Hammonds’ cattle....

In a sentencing memo, the defense lawyers noted that both men have served on the French Glen School Board, Community Club and Site Council, and were “instrumental” in founding and financing the French Glen Education Foundation, which funds extracurricular activities for area students.  The Hammonds also regularly host an annual science and careers fair for seven rural schools, contribute money and food to the Harney County 4-H and FFA clubs, and donate meat to the Harney County Senior Center, the memo said.

Assistant U.S. Attorney Frank Papagni acknowledged that the Hammonds, “both of them, have done many wonderful things for the community.”  But he urged Hogan to follow the law, noting that Steven Hammond’s nephew — Dwight Hammond’s grandson — testified that he “thought he was going to get burned up” when flames moved toward him as the then-13-year-old followed his uncle’s orders to light brush with matches.

The arsons also endangered the lives of BLM firefighters and hunters camping near one of the blazes, the government alleged.  “Congress decided that this particular offense should carry a mandatory, statutory minimum term of five years,” Papagni wrote in the government’s sentencing memo.  “The evidence of defendants’ guilt was substantial. The jury’s verdict of guilt for this particular offense mandates imposition of the required statutory minimum term, as the statute constrains this court’s discretion.”

Hogan disagreed, imposing the lesser terms. He also sentenced both Hammonds to three years of postprison supervision and required them to surrender their firearms. The judge also allowed the men to stagger their sentences in order to keep operating their ranch. He ordered Dwight Hammond to report to prison in January, with Steven Hammond to begin his sentence upon his father’s release.

As the title of this post indicates, it seems from the first sentence of this report that Judge Hogan concluded it would be unconstitutional based on the Eighth Amendment to apply a five-year mandatory minimum under the circumstances.  (Side notethis companion article reports that this sentencing took place on Judge Hogan's last day on the bench.) 

It will be interesting to follow if federal prosecutors seek to appeal this sentence to the Ninth Circuit.  I predict that the feds will fear a "bad panel" and thus a "bad ruling" from the Ninth Circuit and thus will decide not to appeal.

October 31, 2012 at 10:36 AM | Permalink


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I'll bet $100 here and now that, if the government appeals, it will prevail. The idea that a five year sentence for arson on federal land is UNCONSTITUTIONALLY severe is not merely mistaken, it's preposterous.

Unlike Doug, I also think it highly likely that the government will appeal. If the USAO in that jurisdiction allows itself to be bullied out of appealing by the possibility of a "bad panel" in the Ninth Circuit -- where a bad panel is always a possibility -- it might as well close up shop right now.

If I were the head of appeals in that Office, the notice of appeal would have been filed by now.

Posted by: Bill Otis | Oct 31, 2012 10:51:40 AM

If the Ninth Ciruict is upholding life sentences for Ds who rob three or four gas stations with a gun (924(c) cases) then it will overturn this.

Posted by: lawdevil | Oct 31, 2012 11:04:37 AM

I need to learn more about the ruling and the facts of the case, Bill, before I take this bet. But I hope you are right about the appeal, as I think these issues merit further consideration, and maybe we can both draft amicus petitions for SCOTUS to take up this case no matter what the Ninth Circuit rules if (when?) there is an appeal.

Posted by: Doug B. | Oct 31, 2012 11:07:53 AM

"The judge also allowed the men to stagger their sentences in order to keep operating their ranch."

Right here is a good example of upholding the law without being stupid about it.

Posted by: NickS | Oct 31, 2012 11:26:24 AM

Doug --

As long as Harmelin remains good law, which it does, there is nothing the SCOTUS would find particularly interesting about a MM of five years for arson.

Thus, in addition to my offer of a $100 bet that the sentence will not survive the Ninth Circuit if and when it is appealed, I'll make a further $100 bet that, if the government wins said appeal, the SCOTUS will not take this case.

Both bets are open to you (and the first commenter who wishes to take either). I mean, here I am, some scruffy adjunct at Georgetown, and there you are, the Robert J. Watkins/Procter & Gamble Professor of Law. As a certain Presidential candidate reminds us, it's time to share the wealth.

Posted by: Bill Otis | Oct 31, 2012 11:42:10 AM

I have not read a transcript of the sentencing, but this is actually an interested statutory construction issue (and not, in my opinion, an interesting Eighth Amendment issue). The statute establishes a 5-year minimum sentence for destroying by fire "any building, vehicle, or other personal or real [federal] property." Under the cannon of statutory construction of ejusdem generis, when a legislature includes a list of specifics and then a general catch-all, the catch-all is restricted by the nature of the specific items mentioned. Here, because a juniper tree is not like a building or vehicle, the district judge was entirely reasonable in concluding that the Congress, by adding the catch-all "other personal or real property," did not intend to include juniper trees in the list of items that could be set on fire and mandate a five-year minimum sentence.

Not everything is a constitutional issue. Sometimes, there are statutory-interpretation issues that need to be addressed before anyone starts talking about the Constitution. If I were the defendants' attorney, and the US decided to appeal the sentence, I would defend the judge's decision based in this very basic notion of statutory construction. Many Republican-appointed CoA judges would accept the argument, much less some of the usual suspects on the Ninth.

Of course, I'm not the defendants' attorney, so I won't take Bill's bet. But if I were appointed to represent one of them, I would gladly take the bet.

Posted by: Mark Pickrell | Oct 31, 2012 12:44:42 PM


Posted by: Mark Pickrell | Oct 31, 2012 12:49:55 PM

Mark Pickrell --

The main reason by far for the arson statute as applied to federal lands is to prevent forest fires in national parks and reserves -- in other words, to protect trees. And the problem with fire is that it can easily spread uncontrollably.

If your reasoning were correct, the defendant could not have been convicted at all, because the statute wouldn't cover the object he set ablaze. Since the court let the conviction stand, however, it was required to impose the statutory minimum designated.

My offer is still on.

Posted by: Bill Otis | Oct 31, 2012 1:02:44 PM

"Maliciously" is, I suspect, is a term of art. Does the statute contemplate "controlled" fires?

Posted by: federalist | Oct 31, 2012 1:32:15 PM

1.) "Prosecutors alleged that the father-son..set a series of fires on U.S. BLM land where the Hammonds had grazing rights."

2.) "Dwight Hammond’s grandson — testified that he “thought he was going to get burned up” when flames moved toward him as the then-13-year-old followed his uncle’s orders to light brush with matches."

3.) "The arsons also endangered the lives of BLM firefighters and hunters camping near one of the blazes, the government alleged."

4.) "...*Convicted Dwight Hammond Jr., 70, on a single count of arson for “intentionally and maliciously” setting..."

4. ) "They *convicted Steven Dwight Hammond, 43, of the same crime and of a second arson count for similarly setting the *2006...It burned in the same area and in the Malheur National Wildlife Refuge."

These sapheads went to trial and were acquitted on arson charges in two (additional) *2006 fires.

They surely they had nothing to do with it (et al).

Maybe those who care about people's safety, National Wildlife Refuges, and federally protected areas should seek to revoke the Hammonds' grazing rights and thereby |protect| the people and areas.

Posted by: Adamakis | Oct 31, 2012 1:32:34 PM

federalist --

As I see it, the word "maliciously" makes no difference with respect to sentencing. As I was saying to Mark, if the defendant did not commit every element of the offense, including malice, then he could not have been convicted at all, much less forced to face any kind of sentence. But if he stands convicted under that particular statute, which the district court obviously did not challenge or dispute, the MM applies.

It's either acquittal or a minimum of five years. There's no middle ground on this one.

Posted by: Bill Otis | Oct 31, 2012 1:57:55 PM

And this was before Judge Michael Hogan--a very conservative Judge.

An astounding victory for the defense by two great Portland advocates: Marc Blackman and Larry Matasar. Congratulations to them both, and congratulations to Judge Hogan!

Posted by: Michael R. Levine | Oct 31, 2012 2:57:59 PM

The cost to put out these fires alone is staggering. What if the fire got further out of control, or one of the firefighters that they set the fire below were injured or burned over. Would the 5 year minimum sentence be justifiable then? This is a horrible precedent to set. Go ahead john q. public...if you think that public lands need to be burned...burn them! Don't worry about the rest of us who have to pay it.

Posted by: John Kin | Oct 31, 2012 4:23:21 PM


You're right. I thought I was reading a penalty statute, but the 5-year minimum is in the operative statute itself. So the ejusdem generis argument would have to nullify the conviction as a matter of law rather than just permit a sentence less than 5 years. It's an argument that should be made on appeal, imo (assuming that it was preserved with a motion to dismiss or motion for JML), but it's less likely to win than if it was just a way around a harsh sentence. If the government appeals, then the defendants should attack the conviction (as a matter of statutory interpretation) and attack the sentence under the Eighth. It would probably be a tough slog, but you never know.

This is a good case for the DOJ to use a good bit of judgment and let the sentence stand. In my opinion, what these guys did does not warrant five years in prison. I know that John Kin and others disagree. We'll see what the DOJ does.

Posted by: Mark Pickrell | Oct 31, 2012 5:53:07 PM

I would think that “prescribed burning” i.e., burning to control invasive species (juniper trees) and restoration of native species to enhance grazing would be responsible land management consistent with one’s right/permit to graze livestock on federal land. It seems like this grazing right is somewhat similar to an equitable easement or an easement by prescription. You let the invasive species take over and there is nothing left for your cows to graze. Heck, the Bureau of Land Management does prescribed burning on their own. See: http://www.blm.gov/or/resources/fire/prescribedburns/burn_bkgrnd.php
I just don’t see a crime—I see a rancher/permit holder trying to feed his stock. This is the viewpoint of lawyer who helped his dad (a lawyer and then judge) do prescribed burning of our fields (8 acres in all) pre-EPA in Ohio in the early 1960’s when I was 8-9 years-old. Yeah it was scary but I had a wet burlap bag and shovel and my dad showed me how to use them.

Posted by: ? | Oct 31, 2012 9:18:55 PM

Mark --

Thank you very much for your note. In my view, the reason the government should appeal is that, being an institutional litigant, it has some turf to protect, the turf being the notion that MM's really are mandatory. I view the defense counter-argument -- that five years for arson is an Eighth Amendment violation -- as a certain loser. There is no precedent that would support such a result, and, as John Kin points out, free-lance burning in a public forest is a very dangerous thing to do.

I would have the same take whether or not the defendant appealed his conviction, which is likely to happen in any event.

Posted by: Bill Otis | Oct 31, 2012 10:21:51 PM

I am not an expert in this area of law. My question is whether "maliciously" has a particular meaning when it comes to arson. From this non-expert's view, it seems at least a question whether this was "malicious," which has a connotation of there being no good reason for what was done. And that doesn't seem to be the case here. Yes, these guys screwed up, and they endangered lives, and maybe, from a justice standpoint, they need to get five years.

Did the District Court do a sufficiency of the evidence analysis?

Posted by: federalist | Nov 1, 2012 1:12:44 PM

Otis, you have zero credibility claiming you would have already filed a notice of appeal. Who do you think you are kidding? You would have filed a protective notice of appeal in case the judge did not brutalize the defendants with a sentence long enough to match or exceed you so obviously impaired sense of justice.

Posted by: jane | Nov 1, 2012 3:34:48 PM

Jane, given the tenor of your post, my guess is that your prattling about "zero credibility" is more of projection than anything else.

Here's the issue, Jane--judges used to have discretion to avoid some harsh results, and here, the judge's judgment (from a rough justice standpoint) is within the bounds of reasonableness. The problem is that we know what happens when judges get discretion--lots of innocent people get killed because of irrational lenience. When you can deal with that, rather than yapping about other people's "impaired sense of justice," you will add some value to the discussion here--otherwise you're just flinging you know what.

Let's see if the libs in here shout down Jane's intemperance. At least when I toss around bombs, I back them up with argument. Jane's just name-calling here. It's weak.

Posted by: federalist | Nov 1, 2012 6:56:03 PM

Jane --

"Otis, you have zero credibility claiming you would have already filed a notice of appeal. Who do you think you are kidding?"

I was a supervisory attorney in the Appellate Section of the Criminal Division at DOJ, then became the head of appeals for the USAO for the EDVA for 18 years, and filed more notices of appeal than you have even thought about.

Get lost.

Posted by: Bill Otis | Nov 1, 2012 7:14:31 PM

I'm with fed here. If bill said he would appeal then its 100% certain he would have. His record which anyone can bring up will back that up.

Posted by: rodsmith | Nov 1, 2012 8:15:53 PM

rodsmith --

Thanks. The odd thing is that filing a notice of appeal in this one is a total gimme. Jane just has no clue what she's talking about.

Posted by: Bill Otis | Nov 1, 2012 8:35:53 PM

I filed and argued an appeal alleging a grossly disproportionate sentence when a young Latino kid received an automatic 30 year sentence for the possession of a machine gun during a cocaine transaction. He did not fire it. The 5th Circuit disagreed with me. Is he more or less dangerous than these guys? Has an appellate court ever decided that a particular sentence under the USSG is grossly disproportionate to the crime? I don't think so. It would open a huge can of worms and possibly undermine the entire federal sentencing scheme. I think that it being the judges last day and that these were decent white ranchers had more to do with this decision than anything else.

Posted by: Alan Winograd | Nov 2, 2012 12:29:15 PM

I agree with Bill. If the conviction is legit, so's the five-year minimum. It doesn't seem like a close call.

For related reasons, I'm not too sanguine that the DOJ will heed Mark Pickrell's call (which I agree with) to exercise good judgment at this point; after all, they're the ones who decided to bring the prosecution in the first place.

Posted by: Michael Drake | Nov 2, 2012 1:14:22 PM

Otis is right re: Harmelin http://scholar.google.com/scholar_case?case=12618142537190502279

Does anyone know if the judge here ruled from the bench or issued an opinion explaining his reasoning?

Posted by: kindofanonymous | Nov 2, 2012 2:09:14 PM

Alan Winograd, Michael Drake, and kindofanonymous --

Thank you, gentlemen.

A few points: From the government's point of view, assuring that judges obey MM's is a paramount interest. That's why it will appeal this. To do otherwise is to virtually send the other district judges a gold-plated invitation to deviate from the MM when they want to.

If the government were to conclude that the five years is too much (a very unlikely prospect, as Mr. Drake notes), this is easy: The government appeals, wins in the Ninth Circuit (which I regard as certain), and then, when the case is remanded, offers the defendant a plea bargain to a charge with no MM.

Finally, I don't regard this as even close to a sympathetic case for an Eighth Amendment attack on a MM. The MM (five years) is relatively short as these things go, and the crime (arson) is uniformly and correctly regarded as quite dangerous, all the more so in a forest. In addtion, the defendants are not young and deprived; they're the opposite. If I'm a PD, I would look for something, anything else to use as a vehicle to make an Eighth Amendment challenge.

Posted by: Bill Otis | Nov 2, 2012 3:16:10 PM

ahh but that's just it bill. From where a lot of regular people in the west are sitting what they did was not "arson" but more likely preventative brush fire to clean out an overgronw area....our forest service does it all the time.

Posted by: rodsmith | Nov 2, 2012 5:02:54 PM

rodsmith --

And our mint prints money all the time, but if you or I do it, we're going to jail for counterfeiting. But for however that may be, try burning something on someone else's property and watch what happens.

Posted by: Bill Otis | Nov 2, 2012 5:40:22 PM

ahh but if you remember in the article the area they did it they technically had control via a lease from the govt.

Posted by: rodsmith | Nov 3, 2012 1:32:44 AM

rodsmith --

I don't believe it was a lease. I believe the article said "grazing rights."

A lease might conceivably include burning rights, but mere grazing rights wouldn't.

Posted by: Bill Otis | Nov 3, 2012 9:03:16 AM

Don't believe the BS. These fires were lit intentionally to drive hunters (and anyone else who dared "trespass") from BLM property on which they had grazing privileges. And to intimidate BLM firefighters who were fighting fires they set on the same public lands.

Anyone familiar with these subjects can attest to their well-documented history of violence, intimidation, and threatening actions.

Their behavior is exactly what Congress had in mind when establishing minimum sentencing guidelines. The real injustice here is the gross departure from these guidelines. Hopefully, no one will get killed the next time they intentionally set a fire on Steens Mountain to scare people off government land, which probably won't be long, given the weak 3 month and 366 day sentences.

Posted by: Ed Debevik | Nov 3, 2012 9:39:09 AM

It is funny that you all missed Jane's sarcasm. Bill generally favors harsh sentencing. Of course he would have filed a notice of appeal.....Jane was not questioning that. Pretty dense not to have figured that out. .

Posted by: Steve Prof | Nov 3, 2012 4:01:51 PM

And let me add, Bill is correct that DOJ will and should appeal. Even the 9th Cir will reverse.

Posted by: Steve Prof | Nov 3, 2012 4:04:15 PM

I would like to point out to everyone who posted here that there is always more to every story. Both sides acted poorly, and in the nut shell this was a pissing march that was done from both sides. The big difference is BLM employees had and has the upper hand cause of the federal backing. The Hammond's were backed into a corner if there was more cooperation on both sides a lot would of been avoided

Posted by: Jean roberts | May 20, 2013 8:56:23 PM

Hi, not sure if this thread is still open, or if my two cents is valuable or not (not a sudent, teacher or lawyer, just a private citizen), but it was interesting to me that this was the first "hit" when I did a search to find more information re: the standoff in Oregon about the ranchers ( Hammonds). I had heard on CNN about the father and son rancher who had 'served their sentences' for arson but a federal judge said that they needed to go back to jail because they had not served enough time. To me, this did not seem to make sense (double jeopardy?), so after a few ( to me not enough information) news reports, I tried a basic search, and found your site and the interesting, insightful comments of your contributors - thank you! I looked at a few more sites thereafter, and it seems this case is rather complicated ( appreciated the reminder comment that there are always more sides to every story than meets the eye). So, I just wanted to say thank you for having this blog and helping me to understand this process a bit ( minimum sentences and judge's discretion), and hoping that you still have an active blog as the current events ( Jan 2016 militia seizure ?) of federal lands highlights the importance of such posts / comments/ open discussion of these sorts of issues. Again, I'm just a private citizen trying to stay informed, but this one has me scratching my head as if I was back in an undergrad ethics course.

Posted by: Trish | Jan 5, 2016 9:50:08 PM

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