The standoff in Oregon is a modern Western that could end in a Greek tragedy. There are no angels in this story. There are old fools and younger hotheads, single-minded prosecutors worried that judges might get the silly notion that they have the discretion to judge, and unbending federal bureaucrats seemingly intent on teaching others a lesson. Enter a posse of self-proclaimed militiamen, fueled by antigovernment sentiment, who say they occupied a national wildlife refuge to protect persecuted ranchers.
The protesters, in turn, attract those who see such drama as an opportunity to air their own grievances or advance their own agendas—it’s about government tyranny; no, it’s about gun control; no, the issue is racism. The confrontation attracts the media, and the inevitable chorus of talking heads follows, including one advising the government to call out the troops—when did we abandon law enforcement and declare martial law?
There may be a moral in here somewhere, but competing narratives may drown out any chance of finding it. Lost amid this bizarre behavior is the fact that the episode was sparked by the prosecution of a pair of ranchers on arson charges. Dwight and Steven Hammond, father and son, were charged under a law enacted to fight terrorism, not rein in wayward ranchers.
When the Hammonds started unauthorized fires to protect their property against invasive species and an approaching wildfire, they were charged with crimes laid out in the ominous-sounding 1996 Antiterrorism and Effective Death Penalty Act. This legislation was passed by Congress in the wake of the 1993 terrorist bombing of the World Trade Center and the 1995 Oklahoma City bombing—at the time the worst terrorist attack on U.S. soil.
Congress amended the criminal code to put more bullets in the bandoliers of federal prosecutors, enabling them to crack down on the illegal manufacture, traffic, and use of explosives and fire to cause casualties and damage property. Arson was not the main point, but incendiary attacks were included.
There is no doubt that the Hammonds are guilty of deliberately starting fires to protect their own interests and burned 150 acres of federal land. A jury of their peers decided they were guilty, and the defendants accepted the verdict. While the jury deliberated on additional charges, the Hammonds reached a deal with the prosecutor. They would not appeal their verdict and in return the prosecutor would allow them to stay out on bail until sentencing and allow them to serve the sentences concurrently.
The point of contention between the prosecutor and the trial judge was over the increased penalties mandated by the legislation—five years was the minimum sentence. The judge said that the legislators clearly did not have the Hammonds in mind when they passed the anti-terrorist law. Five years in prison for burning 150 acres—which the Bureau of Land Management has said improved the land for grazing—was so “grossly disproportionate,” the judge said, that it violated the defendants’ Eighth Amendment right against cruel and unusual punishment. He sentenced the father, Dwight Hammond, to three months in jail and his son, Steven, to a year behind bars.
It could have ended there, but the prosecutor appealed the sentence—the trial judge’s invoking the Eighth Amendment virtually guaranteed that. No one was arguing that the Hammonds deserved more time in prison, but Department of Justice prosecutors apparently do not want to lose the immense leverage they have obtained over defendants through the federalization of ordinary crimes and the often draconian mandatory sentences that accompany them. These enable prosecutors to pile on charges and intimidate defendants with threats of lifetimes in prison even if only some of the charges stick.
Anti-terrorist laws should not be used to strengthen prosecutors’ hands in nonterrorist prosecutions—it makes national security needs look like an instrument of oppression—but when Congress writes anti-terrorist laws, it does not restrict them to prosecuting terrorists. Terrorism may be the catalyst, but the resulting laws are crime-fighting tools. They can and will be used by creative prosecutors in cases beyond the original purpose. The Hammonds were not targets of the anti-terrorist legislation. They were collateral damage.
Inflated fears of terrorism have propelled this unfortunate legal trend. By invoking anti-terrorist laws, prosecutors can portray ordinary criminals as menaces to the republic.
In the Hammond case, the prosecutors won their appeal. The appellate judge ruled that a sentencing mandate is a mandate, not a suggestion. The deal the defendants had struck with the prosecution applied only to the charges, not the sentence. What the Hammonds saw as a double-cross by the prosecution was technically fair and square. As for the penalty being excessive, the appellate judge pointed out that other defendants have received far more severe sentences for lesser crimes, citing the example of one defendant who, under California’s three-strikes law, was sentenced to 50 years for stealing nine videotapes and another who got 25 years to life for the theft of three golf clubs. It seems curious to support what may be one injustice by citing even worse injustices.
Into the mix comes Ammon Bundy, a veteran of a previous standoff with the federal government, along with his “Citizens for Constitutional Freedom”—grandstanders looking for another forum from which to fulminate against the feds. Even pretenders sometimes have legitimate causes, and the unconscionable behavior of the government in the Hammond case offered one. While attracting public attention to the Hammond case was a positive, turning it into a media circus and frightening people detracts from the case and ultimately erodes sympathy. The Hammonds have said that they want no confrontations. If the Citizens for Constitutional Freedom is truly concerned about justice, it should go home satisfied that it has made its point.
What should the government do if the “militiamen” don’t quickly disband? Certainly not call out the Army—or federal marshals, the FBI, or the Forest Rangers. Although armed, the protesters hold no hostages. They are in the middle of nowhere. This is more of a sit-in or campout than a standoff. It’s certainly not a terrorist action. No one is in immediate danger.
In situations like this—involving angry protesters, domestic quarrels, mentally disturbed individuals, even terrorists—the first objective of authorities is to stay cool, reduce tension, and avoid provoking aggressive behavior that could endanger lives.
The federal government has a broader objective in ensuring domestic tranquility. America is undeniably divided. Appalling actions by police, irresponsible rhetoric by politicians, anxieties about terrorism, and other concerns have made these tense times. We do not need another domestic tragedy.
To deal with dilemmas, playwrights and screenwriters can contrive a plot twist and make it all work out. One dramatic option, which has been suggested, would be for President Obama to commute the sentences of the Hammonds and send Bundy and his men home. It would raise questions of equity but would remedy an injustice and promptly resolve the episode without risk of a violent ending that clearly is not in the interest of the country—or of the president’s own sincere commitment to reducing violence on the home front.