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The seeds of this month’s insurrection at a Harney County wildlife refuge were planted in an unusual midnight deal struck in 2012 between prosecutors and Harney County ranchers Dwight and Steven Hammond.
The long blood feud between the Hammonds and the government reached a surprise moment of consensus that night. After eight days of trial in a Pendleton courthouse on charges they had set illegal fires near their remote Eastern Oregon ranch, the parties agreed to abide by the jury’s partial verdict.
The jury informed the judge it had concluded that the Hammonds were guilty of two counts of arson. On seven other counts, the jury had voted to acquit or was deadlocked.
The Hammonds agreed to accept the partial verdict, accept Hogan’s sentence and to waive their rights to appeal. The two ranchers and their lawyers believed the U.S. Attorney’s office had done the same.
The deal blew up four months later after U.S. District Court Judge Michael Hogan refused to issue the five-year mandatory minimum sentence. Prosecutors immediately appealed, calling Hogan’s lighter prison sentences “illegal.”
The Department of Justice prevailed. The ranchers were ordered to return to prison to serve out their five-year terms.
The case made the Hammonds martyrs to an angry cadre of protesters, and the perceived government overreach inspired the armed occupation of the Malheur National Wildlife Refuge south of Burns that has attracted worldwide attention.
Even as the occupation reaches day 15, several questions remain unanswered: Why did the government decide to charge the Hammonds under a terrorism statute? Why was it so fixated on a five-year sentence? Did prosecutors renege on a deal not to appeal the original sentence?
Whether you consider the Hammonds heroes or criminals, their collision with the federal justice system offers a cautionary tale of federal power and the mounting controversy over mandatory minimum sentences. A national groundswell of critics, including President Barack Obama and even former Attorney General Eric Holder, has surfaced in recent years claiming mandatory minimums lead to unduly harsh sentences that have disproportionately impacted young black and Latino men.
In this case, the sentences went to the two Oregon ranchers, Dwight, age 74 and Steven, age 49. Even Frank Papagni Jr., the assistant U.S. Attorney leading the Hammond prosecution, repeatedly voiced misgivings about the severity of a five-year sentence. But once the trial began, he offered no concessions, nor did his colleagues who handled the subsequent appeal.
“If they had qualms, I’m disappointed they fought so hard for five years, all the way to the Supreme Court,” said Jacon Taylor, Steven Hammond’s nephew, who testified at the trial. “In the end, the result was devastating to the Hammonds.”
A prosecutors’ weapons
Two decades of mounting ill will between the Hammonds and federal bureaucrats over how best to manage their adjacent rangeland erupted into something far more serious in June 2010. Federal prosecutors charged the ranchers with multiple counts of arson, conspiracy and other charges.
Prosecutors chose to file a specific type of arson under a 1996 statute passed by Congress in the wake of the Oklahoma City bombing. The Antiterrorism and Effective Death Penalty Act gave law enforcement and government lawyers a panoply of new tools to fight terrorism, including a tough new five-year mandatory minimum sentence for arson.
Prosecutors had other charging options that carried much lighter penalties. Another statute — 18 U.S. Code 1855 — prohibits setting ablaze “any timber, underbrush, or grass” in the public domain. The Hammonds could have gotten off with as little as probation and fines if convicted.
“The real decision point happened at the charging phase — that’s what brought with it the five year mandatory minimum,” said Kevin Sali, a Portland criminal defense attorney. “Look at the statute’s legislative history. Clearly, this was intended primarily to fight terrorism. You won’t see any mention of ranchers burning brush.”
The U.S. Attorney’s office in Portland declined to comment on its charging decision.
The Justice Department’s own manual is ambivalent. It calls for prosecutors to seek “the most serious offense” that carries with it the maximum penalty. But the manual also urges prosecutors to ensure the sentence is “proportional to the seriousness of the defendant’s conduct.”
Per Olson, another prominent Portland criminal defense attorney, said it’s become commonplace for prosecutors to use the threat of a stricter sentence as a negotiating tool. “Their ability to use those mandatory minimums to coerce someone into pleading to something is quite powerful,” Olson said. “Obviously, the Hammonds didn’t bite. They wouldn’t plead.”
Case goes to trial
The Hammonds had the financial wherewithal to hire top-flight criminal defense lawyers — Larry Matasar and the late Marc Blackman. The two sides were soon talking about a deal.
Kelly Zusman, an assistant U.S. Attorney in Portland who handled the subsequent Hammond appeal, said the characterization of the government as too stiff necked to negotiate is simply wrong. Before the trial got under way, she said, prosecutors offered to reduce the charges that would have likely reduced the prison term to well below five years.
“The government made offers to these guys,” Zusman said. “They could have pleaded to lesser offenses. But they had to give something up. Their position was: take it to trial. We’re going to win. We haven’t done anything wrong.”
Eight days into the trial, it was clear the jury disagreed.
Near midnight on June 21, jurors sent a note to Hogan saying they had rejected some of the claims against the Hammonds and were hopelessly split on most of the others. But they were unanimous in agreeing the ranchers were guilty of two counts of arson.
Hogan then did what he has become famous for in Oregon legal circles: He brokered a deal.
He convinced the parties to accept the guilty verdict on the two arson counts and throw out the rest of the charges. The Hammonds agreed to give up their appeal rights, according to court documents. As far as the Hammonds were concerned, they and the government had agreed to a permanent ceasefire that would put the final sentencing decision in Hogan’s hands.
Papagni, the prosecutor, accepted the partial verdict, according to court documents. But as events would soon show, the Hammonds and the government had vastly different ideas about the fine points of their 11th hour accord.
Hogan’s bombshell
The sentencing was originally scheduled for December 2012. But Hogan rescheduled it to Oct. 30. After nearly four decades on the bench, he was retiring on Oct. 31. He wanted the Hammond sentencing to be his last official act.
By the prosecutors’ reckoning, federal guidelines called for a 33- to 41-month sentence for Steven Hammond and six months or less for his father. But in this case, the five-year mandatory minimum trumped the normal sentencing guidelines.
Papagni clearly was uncomfortable with the severity of the sentence the government demanded.
“Perhaps the best argument, Judge, the defendants have in this case is the proportionality of what they did to what their sentence is,” Papagni said at the sentencing hearing. “Perhaps that’s the most troubling for the court. It is for the prosecutor who tried the case. That being said, I have done my job as I see it.”
True to form, Hogan’s parting shot was memorable. Five years was out of line, he ruled, a violation of the Eighth Amendment ban on cruel and unusual punishment.
“I will impose a sentence that I believe is defensible under the law but also one that is defensible to my conscience,” he said. “I am not going to apply the mandatory minimum (which) would result in a sentence grossly disproportionate to the severity of the offenses here.”
Instead, Hogan sentenced Steven Hammond, then 46, to a year and a day in prison and Dwight Hammond, then 70, to just three months.
Hogan took a jab at the prosecutors, saying controlled burns in the “wilderness” of the Eastern Oregon desert was not the kind of arson Congress had in mind when it ramped up penalties for arson as part of the antiterrorism statute.
Furious Justice Department officials vowed to appeal. Defense lawyers protested, reminding the government they had waived their right to appeal. The government denied it had ever made such a pledge and charged ahead.
Return to prison
The government, in its appeal, said Hogan did not have the discretion to vary from the minimum. In a stinging rebuke, the 9th Circuit Court of Appeals agreed.
Hogan’s sentence was “illegal,” it ruled last year. It dismissed as nonsense the argument from the defense and Hogan that the fire set by the Hammond were victimless acts of land management gone wrong.
“Even a fire in a remote area has the potential to spread to more populated areas, threaten local property and residents, or endanger the firefighters called to battle the blaze,” the Appeals Court ruled.
The Hammonds appealed all the way to the U.S. Supreme Court, but the high court declined to consider their case.
It was a Groundhog Day moment this October, when the Hammonds and their supporters gathered for yet another sentencing hearing. This one would be in front of U.S. District Court Judge Ann Aiken in Eugene. Aiken sided with the government and sentenced them to five years.
“It was emotional and sad,” said Taylor, Steven Hammond’s nephew. “We were told to expect five years. But still, you hold out a tiny shred of hope, even though you know it logically doesn’t make sense.”
Billy Williams, the U.S. Attorney in Oregon, declined to comment about the case. But he trumpeted Aiken’s ruling in a press release.
“Congress sought to ensure that anyone who maliciously damages United States’ property by fire will serve at least five years in prison,” he said. “These sentences are intended to be long enough to deter those like the Hammonds who disregard the law and place firefighters and others in jeopardy.”
Amanda Marshall, U.S. Attorney in Oregon at the time of the original Hammond trial, could not be reached for comment. She took to Facebook last week to defend the government’s handling of the case.
“The court of appeals agreed with us that Judge Hogan exceeded his authority when he ignored the law and didn’t impose the mandated prison sentence,” Marshall wrote. “That’s it. Pretty straight forward.”
Hogan, who now runs his own mediation business, stands by his original ruling and lamented that the case has become a cause-celebre for the occupiers.
“I made the decision that I think was defensible and correct,” he said. “Some of the results are unfortunate. I’m sorry about the blowback.”
Nearly two weeks after the Hammonds’ reported back to prison, the case offers a final irony: The armed standoff inspired by their case may doom their last shot at getting out of prison early.
The Hammonds and their close supporters have taken pains to distance themselves from the armed protesters who have occupied the refuge building near their ranch. That’s in part because they are now seeking clemency from the White House.
