Malheur Standoff Boosts Momentum for Federal Criminal-Justice Reform

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The bi­par­tis­an push to ease harsh, un­bend­ing sen­ten­cing laws is sud­denly draw­ing en­ergy from an un­likely source: The saga of Ore­gon ranch­ers whose pris­on sen­tences helped spark the armed oc­cu­pa­tion of a na­tion­al wild­life refuge in that state.

Greg Walden, the GOP law­maker who rep­res­ents the rur­al Ore­gon dis­trict at the cen­ter of the ac­tion, said the five-year pris­on terms handed down to a fath­er-son duo of ranch­ers who set fire to pub­lic lands will boost ef­forts to re­form crim­in­al-justice policy.

“I think it will bring on new sup­port­ers,” he told Na­tion­al Journ­al in an in­ter­view Wed­nes­day. “The Ham­mond case il­lus­trates the un­fair­ness of some of these man­dat­ory min­im­um sen­tences, and the prob­lems that oc­cur when you re­move ju­di­cial dis­cre­tion from the sys­tem of justice.”

It’s an un­usu­al turn of events.

The push to ease man­dat­ory min­im­ums—which is part of a broad­er ef­fort to over­haul sen­ten­cing and pris­on policy—has fo­cused most of­ten on tough sen­tences re­quired for drug of­fenses.

But the case of Dwight and Steven Ham­mond is about their re­cently im­posed five-year sen­tences for set­ting fires in 2001 and 2006 that burned about 140 acres of pub­lic lands man­aged by the In­teri­or De­part­ment. Their pro­sec­u­tion helped spur the broad­er an­ti­gov­ern­ment oc­cu­pa­tion at a wild­life refuge that’s con­tinu­ing in Ore­gon (and which the Ham­monds do not sup­port).

A dis­trict court judge, in 2012, re­jec­ted the five-year min­im­um sen­tences re­quired un­der the An­ti­ter­ror­ism and Ef­fect­ive Death Pen­alty Act of 1996, which deals with crimes in­clud­ing ar­son against fed­er­al prop­erty. The judge, Mi­chael Hogan, said the par­tic­u­lars of the case would have made the five-year terms “grossly dis­pro­por­tion­ate to the sever­ity of the of­fenses.”

But fed­er­al pro­sec­utors ap­pealed, and an ap­pel­late court ordered the re­sen­ten­cingof the duo in 2014. They were giv­en the tough­er, man­dat­ory-min­im­um pen­al­ties in the fall and re­por­ted to pris­on Monday.

A num­ber of GOP law­makers and pres­id­en­tial can­did­ates have cri­ti­cized the armed takeover of the Mal­heur Na­tion­al Wild­life Refuge.

But Walden said their case and the oc­cu­pa­tion is non­ethe­less put­ting a fo­cus on man­dat­ory min­im­ums—and at­tract­ing wider GOP at­ten­tion. “This in­cid­ent, as un­for­tu­nate as it is, and in the case of the takeover, as in­ap­pro­pri­ate as it is, may high­light sev­er­al is­sues, in­clud­ing that one,” said Walden, who is also chair­man of the Na­tion­al Re­pub­lic­an Con­gres­sion­al Com­mit­tee, the House GOP’s polit­ic­al arm.

“I think there are … rur­al con­ser­vat­ive Re­pub­lic­an mem­bers who are look­ing at this and go­ing ‘wow,’” he said.

Some oth­er GOP law­makers are mak­ing the same con­nec­tion.

Rep. Raul Lab­rador, a mem­ber of the deeply con­ser­vat­ive House Free­dom Caucus, told re­port­ers Wed­nes­day that the Ham­mond case is a ma­jor reas­on why he backs sen­ten­cing re­form.

“This is the per­fect … case where [the] judge would have been able to make a de­cision that was just and fair, as op­posed to hav­ing the sen­ten­cing guidelines say that you must go to pris­on for five years for a par­tic­u­lar crime,” he said.

The res­on­ance of the Ore­gon case isn’t lost on ad­voc­ates try­ing to scale-back tough man­dat­ory-min­im­um sen­ten­cing laws for non­vi­ol­ent drug of­fenses that date back to the 1980s.

Earli­er this week, the group Fam­il­ies Against Man­dat­ory Min­im­ums high­lighted the Ham­monds case.

“Fed­er­al man­dat­ory min­im­ums once again have des­troyed a loc­al com­munity’s abil­ity to hold its cit­izens ac­count­able. A one-size-fits-all fed­er­al pris­on sen­tence, passed by a Con­gress that ar­rog­antly be­lieves it can fore­see all the cir­cum­stances in which its pun­ish­ments might ap­ply, was used to send the Ham­monds to pris­on for a min­im­um term of five years each,” said Kev­in Ring, the group’s dir­ect­or of stra­tegic ini­ti­at­ives, in a state­ment Monday.

But it’s not clear how the man­dat­ory min­im­ums at is­sue in the Ham­monds case may in­ter­sect with the broad­er push for crim­in­al-justice re­form on Cap­it­ol Hill and at the White House. The main bills that are mov­ing in the House and Sen­ate in­clude pro­vi­sions that deal with man­dat­ory sen­tences for drug crimes, Ring notes, and not the 1996 stat­ute un­der which the ranch­ers were sen­tenced.

“Wheth­er we have time to broaden the bills’ scope to ad­dress all these oth­er crimes that carry man­dat­ory min­im­ums, that is not clear,” Ring told Na­tion­al Journ­al.

Alex Brown contributed to this article.

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