Much ink has been spilled amount United States v. Hammond, the federal criminal prosecution cited by militia members as one of the motivations for taking over a federal facility in Oregon. The increased sentence imposed on the Hammonds has been cited as a sign of government abuse. But the sentencing itself is not remarkable.

In 2001 Steven and Dwight Hammond set a fire on their property that spread to public land. In August of 2006 they set a back burn near the boundary of their land to respond to a lightning-kindled fire; that fire burned a small amount of public land. The federal government charged the Hammonds with various crimes, including Title 18, United States Code, section 844(f)(1):

(f)

(1) Whoever 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, or any department or agency thereof, or any institution or organization receiving Federal financial assistance, shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both.

The Ninth Circuit summarized part of the trial evidence as follows:

Although the Hammonds claimed that the fire was designed to burn off invasive species on their property, a teenage relative of theirs testified that Steven had instructed him to drop lit matches on the ground so as to “light up the whole country on fire.” And the teenager did just that.

A jury convicted the Hammonds of the Section 844 charge, acquitted them on other charges, and failed to reach a verdict on additional charges. While the jury continued to deliberate on the remaining charges, the Hammonds and the government reached a deal: the Hammonds would not appeal the verdict and the government would recommend that the Hammonds could stay out on bail pending sentencing and that the government would recommend that their Section 844 sentences be served concurrently — that is, that though the Hammonds were convicted of multiple counts of Section 844, each carrying a mandatory minimum five-year sentence, the government would recommend that those five-year terms not "stack," but result in just one five-year sentence.

At sentencing, the United States District Judge on the case refused to impose the five-year mandatory-minimum sentences required by Section 844, ruling that to do so would violate the Eighth Amendment's prohibition on cruel and unusual punishment. The court instead imposed sentences of twelve months and a day on the father1 and three months on the son.

The government appealed the sentence, and the United States Court of Appeals for the Ninth Circuit reversed and sent the case back, instructing the trial court to impose the statutory mandatory minimum sentence. The Court found — rather convincingly, given the precedent — that a five-year sentence for arson does not violate the Eighth Amendment:

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. 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).

So the district court resentenced the Hammonds. The government asked for the five-year mandatory minimum but kept its deal to recommend concurrent sentences (rather than stacking two counts of Section 844 to form a ten-year sentence), and the court agreed and imposed that sentence. The Hammonds will necessarily serve 85% of that sentence, less the time they've already served.

Was the five-year sentence cruel and unusual?

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. The Supreme Court and lower courts have upheld far harsher sentences for far less serious conduct. The Eighth Amendment still has vigor when applied to the death penalty and some conditions of imprisonment, but under modern jurisprudence it does not place any significant limit on the length of imprisonment that may be imposed for convictions. That may not be what the law should be, but it's what the law is, and has been for some time.

Was the mandatory minimum sentence unusual, or unusually imposed?

The Hammond case provided a straightforward application of a statutory mandatory minimum sentence. If you accept the premise of the jury's verdict — that the jury found that the Hammonds maliciously burned government land — then the case does not stand out. Longer mandatory minimums are routinely imposed for less culpable conduct. That doesn't make it right; it just makes it banal.

Was it unusual for the government to appeal the sentence, or for the Hammonds to be returned to jail after serving the original sentence?

Absent a waiver, both the government and the defense have the right to appeal a sentence. Federal prosecutors generally must seek approval from "main Justice" — the Department of Justice in Washington D.C. — before appealing a ruling. That's so the feds don't make what they see as "bad law" by appealing "bad cases," and so the feds' legal stance remains relatively consistent across circuits.

Back in the 1980s and 1990s, before the Supreme Court ruled that the United States Sentencing Guidelines must be treated as recommendations and not as mandates, the government routinely appealed sentences when they concluded that the judge had mis-applied the Guidelines in the defendant's favor. Now that the appellate standard is "reasonableness" of the sentence, the government appeals on that basis less often, but still does so. The United States has always routinely appealed sentences when a district judge has refused to impose a mandatory minimum sentence. Traditionally the Department of Justice has jealously guarded the mandatory nature of mandatory minimum sentences, appealing judicial defiance of them even in otherwise unappealing cases.

It's therefore not unusual at all that the government appealed the Hammonds' sentence.

Nor is the Hammonds' return to prison unprecedented. If the trial court imposes a short sentence and the appellate court overturns that ruling and requires a longer sentence, that's the result. The alternative would be that trial judges could avoid appellate review of sentences by making them short enough that defendants would be done with them by the time the appellate court could review them. That might be appealing to defense lawyers, defendants, and judges who believe in the primacy of trial court discretion, but it's not the law.

The U.S. v. Hammond appeal, reversal, and resentencing are not remarkable in the context of federal criminal law. Maybe they should be, but they aren't. Any suggestion that the proceedings represent a departure from the norm are incorrect.

That's not meant as an endorsement of the result. It's meant to question why this particular exercise of federal criminal authority strikes people as so outrageous, when in fact (as we often discuss here) it's routine.

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