With the media so locked on “Donald Trump productions” for the last several months they missed a serious precedent setting double jeopardy violation of the Constitution last winter. Two men, father and son ranchers, are presently again sitting in jail for the same crime after having completed their sentences and been free for more than a year. Not for a new crime but because the Justice Department, thinking the sentences of the previous District Court not harsh enough, appealed to the U. S. Ninth Circuit Court of Appeals which resentenced both to longer terms.
Both then were rearrested, reconvicted and re-incarcerated because the federal government did not like the ruling of their own federal judge—and, again, the previous sentences had been served. How is this not double jeopardy? The 5th Amendment to the Bill of Rights reads in part, “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” This cannot be allowed to stand or we all lose this part of the Constitution, left uncontested, past practice tends to set the new parameters making it so much more difficult to get back to the Constitution as designed.
This case has another strange twist. It allows someone adjacent to federal land that burns unwanted debris, the fire from which accidentally burns a portion of federal land, to be convicted as a terrorist with a mandatory five-year sentence. Dwight and Steven Hammond, law abiding, patriotic and model citizens in their community, are serving second sentences as terrorists for precisely this reason. Their 2001 control burn got out of control consuming, in addition to Hammond property, 150 acres of federal land. The burn, mostly grass, did not destroy actual property.
Judge Michael Hogan, understood and factored in the above conditions and offered leniency giving Dwight (74) three months and his son Steven (46) one year and one day. They also settled on paying $400,000 on firefighting expenses. But he felt that The Anti-terrorism and Effective Death Penalty Act of 1996, of which they were charged, which required a minimal sentence of 5 years in prison, defining the Hammon’s as terrorists, was grossly excessive thus violating Amendment 8 of the Bill of Rights, prohibiting “cruel or unusual punishment” because of the excessive length of time mandated and the “terrorist” label thereafter attached to the defendants. Thus the sentence of arson, rather than terrorist, as mandated by the faulty law, was rendered.
Undermining the authority of Judge Hogan a Ninth Circuit judge, despite the double jeopardy clause in the Fifth Amendment, reinstated the 5-year sentence and the two were rearrested. It was Bureau of Land Management Field Manager and Refuge Manager for the Malheur Refuge, property adjacent to the Hammon’s, that filed the appeal. The Malheur Refuge would benefit because BLM had benefited from other ranches they had had a hand in forcing to sell, thus enlarging the Refuge, and they expected to do the same to the Hammond property.
The Hammon’s went back to prison peacefully and today are in a minimum-security facility in Los Angeles. If the government really thought that they were real terrorists they would never have given but minimum security. In their case the Obama Department of Justice denied justice and violated the Constitution in both the 5th and 8th Amendments. A law, in this case The Anti-terrorism and Effective Death Penalty Act of 1996, is never to trump the Constitution but has.
The event refueled the range war with the Bureau of Land Management (BLM) as hundreds, incensed by similar heavy handedness by federal agencies on properties all over the West, hoped for injustice exposed. Some few of these descended on Oregon taking over the Malheur Refuge and illegally occupied it for the next several months, which unfortunately provided the media with a story with far more drama than the “rancher squeeze” story. The Hammond’s were largely forgotten. The U.S. Supreme Court declined to hear their appeal, probably because of the Refuge Standoff, thus allowing the appellate court’s unconstitutional ruling to stand. This compounded the injustice.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his weekly articles, visit www.LibertyUnderFire.org.