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.
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