Tuesday, January 05, 2016
The Case for Civil Disobedience in Oregon
by David French
Watching the news yesterday, a person could be forgiven for thinking that a small group of Americans had literally lost their minds. Militias are marching through Oregon on behalf of convicted arsonists? A small band of armed men has taken over a federal building? The story practically writes itself.
Or does it? Deranged militiamen spoiling for a fight against the federal government make for good copy, but what if they’re right? What if the government viciously and unjustly prosecuted a rancher family so as to drive them from their land? Then protest, including civil disobedience, would be not just understandable but moral, and maybe even necessary.
Ignore for a moment the #OregonUnderAttack hashtag — a rallying cry for leftists accusing the protesters of terrorism — and the liberal media’s self-satisfied cackling. Read the court documents in the case that triggered the protest, and the accounts of sympathetic ranchers. What emerges is a picture of a federal agency that will use any means necessary, including abusing federal anti-terrorism statutes, to increase government landholdings.
...In 2010 — almost nine years after the 2001 burn — the government filed a 19-count indictment against the Hammonds that included charges under the Federal Anti-terrorism and Effective Death Penalty Act, which mandates a five-year prison term for anyone who “maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other personal or real property in whole or in part owned or possessed by, or leased to, the United States.”
At trial, the jury found the Hammonds guilty of maliciously setting fire to public property worth less than $1,000, acquitted them of other charges, and deadlocked on the government’s conspiracy claims. While the jury continued to deliberate, the Hammonds and the prosecution reached a plea agreement in which the Hammonds agreed to waive their appeal rights and accept the jury’s verdict. It was their understanding that the plea agreement would end the case. At sentencing, the trial court refused to apply the mandatory-minimum sentence, holding that five years in prison would be “grossly disproportionate to the severity of the offenses” and that the Hammonds’ fires “could not have been conduct intended [to be covered] under” the Anti-terrorism act:
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. . . . It would be a sentence which would shock the conscience to me.
Thus, he found that the mandatory-minimum sentence would — under the facts of this case — violate the Eighth Amendment’s prohibition against “cruel and unusual punishment.” He sentenced Steven Hammond to two concurrent prison terms of twelve months and one day and Dwight Hammond to one prison term of three months. The Hammonds served their sentences without incident or controversy.
The federal government, however, was not content to let the matter rest. Despite the absence of any meaningful damage to federal land, the U.S. Attorney appealed the trial judge’s sentencing decision, demanding that the Hammonds return to prison to serve a full five-year sentence.
The case went to the Ninth Circuit Court of Appeals, and the court ruled against the Hammonds, rejecting their argument that the prosecutor violated the plea agreement by filing an appeal and dismissing the trial court’s Eighth Amendment concerns. The Hammonds were ordered back to prison. At the same time, they were struggling to pay a $400,000 civil settlement with the federal government, the terms of which gave the government right of first refusal to purchase their property if they couldn’t scrape together the money.
There’s a clear argument that the government engaged in an overzealous, vindictive prosecution here. By no stretch of the imagination were the Hammonds terrorists, yet they were prosecuted under an anti-terrorism statute. The government could have let the case end once the men had served their sentences, yet it pressed for more jail time. And the whole time, it held in its back pocket potential rights to the family’s property. To the outside observer, it appears the government has attempted to crush private homeowners and destroy their livelihood in a quest for even more land. If that’s the case, civil disobedience is a valuable course of action. By occupying a vacant federal building, protesters can bring national attention to an injustice that would otherwise go unnoticed and unremedied. Moreover, they can bring attention once again to the federal government’s more systemic persecution of private landowners.