Following is a summary from wikipedia, checked and condensed here for convenience.
The Lead Up:
In June 1994, the Malheur National Wildlife Refuge manager notified Dwight Hammond that his permit to graze his cattle and grow hay on the refuge was revoked. Two months later, Hammond and his son Steven obstructed the completion of a refuge boundary fence intended to keep their cattle out of the refuge’s protected marsh and wetland, prompting their arrest by federal agents. The fence was needed to stop the Hammonds’ cattle from moving onto the refuge after the ranchers had repeatedly violated the terms of their special permit, which limited those times when they could move their cattle across refuge property. Officials also reported that Dwight had made death threats against refuge managers in 1986, 1988, 1991, and 1994; and that Steven Hammond also made incendiary remarks against them. Oregon’s then-U.S. Representative, from Congressional District 2, Robert Freeman Smith, wrote a letter of protest to the United States Secretary of the Interior, Bruce Babbitt. In 1999 Steven started a fire, intending to burn off juniper trees and sagebrush, but the fire escaped onto BLM land. The agency reminded him of the required burn permit and that if the fires continued, there would be legal consequences.
Both Dwight and Steven Hammond later set more fires, one in 2001 and one in 2006, that would lead to eventual convictions of arson on federal land: The 2001 Hardie-Hammond fire began after hunters in the area witnessed the Hammonds illegally slaughtering a herd of deer. Less than two hours later, a fire erupted, forcing the hunters to leave the area but also intending to conceal evidence of the deer herd slaughter. Steven’s nephew Dusty Hammond testified his uncle told him to “light the whole countryside on fire,” and that he was “almost burned up in the fire,” having to flee for his life. The Hammonds claimed they started the fire to stop invasive plants from growing onto their grazing fields. The 2006 Krumbo Butte fire started out as a wildfire, but several illegal backburns were set by the Hammonds with an intent of protecting their winter feed. The backfires were set under the cover of night, without warning the firefighters they knew were camped on the slopes above. The fires threatened to trap four BLM firefighters. One of those later confronted Dwight Hammond at the fire scene after he had moved his crews to avoid the danger. Two days later, Steven Hammond threatened to frame a BLM employee with arson if he didn’t terminate the investigation.
The Pre Trial offers the Hammonds declined
The Hammonds wanted to go to trial. They could afford high priced legal representation and they knew what they faced at trial. They rolled the dice, and lost. But they didn’t have to. As reported in the Oregonian.
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.”
The Trial and the Deal the Hammonds made
In 2012, the Hammonds were tried in federal district court on multiple charges. During a break in jury deliberations, partial verdict were rendered finding the Hammonds not guilty on two of the charges, but convicting them on two counts of arson on federal land. Striking a plea bargain, in order to have the four remaining charges dismissed and for sentences on the two convictions to run concurrently, the Hammonds waived their rights to appeal their convictions. This was with their knowledge that the trial would proceed to sentencing where the prosecution intended to seek imposition of the mandatory five-year minimum sentences.
Why a pardon or commutation isn’t appropriate
The Hammonds endangered federal property, illegally killed wildlife, endangered firefighters and did so without remorse or regret. They were offered a deal before trial to avoid 5 years in prison but rejected the offer and rolled the dice with a jury. They were convicted by the jury, and cut a sentencing deal and prosecutors agreed to dismiss four other charges that the Jury could have convicted them of.
Here’s what OPB reported in 2016 at the time of the re-sentencing in why the Hammonds struck the deal.
“The idea is there will be no further proceedings beyond this court and will be done at the sentencing,” Steven Hammond’s lawyer told the court.
His father’s attorney agreed.
“He’s agreeable to wave his appellate rights to bring this matter to a close,” Dwight Hammond’s lawyer said. “And the parties would accept the … sentence that’s imposed.”
The federal government’s attorney made it clear the recommendation would be the mandated minimum under the law.
“I want to make sure the Hammonds understand that under the statute the government is obligated to recommend a five-year mandatory minimum term of imprisonment,” court records show the federal prosecutor saying. “I think your lawyer has told you that, but I wanted the record to reflect that your gentlemen have been so warned what the sentence is going to be that I’m going to be asking for.”
The men understood, and agreed to it. In fact, as part of the plea deal, Steven Hammond would serve his two sentences concurrently, so he would be out around the same time as his father.
Is 5 years cruel and unusual? the sentencing judge thought so, but that is the mandatory minimum sentence and higher courts found that the sentence was constitutional. And more importantly, it’s the deal the Hammonds struck and received benefits from the deal.
But I would support a commutation of the balance of the sentences for the Hammonds on one condition. That Representative Walden introduce and pass federal sentencing reforms that eliminate most mandatory minimum sentences and leave “justice” up to the Federal Judges who may then sentence within a range with objective factors being used to vary from the presumptive sentences. This would eliminate the power of prosecutors to add charges that carry mandatory minimum sentences in order to leverage a plea deal when they have a weak case.
Otherwise the only fair thing to do with the Hammonds, who like many other criminals rejected a plea offer, rolled the dice at trial and lost, is to allow them to serve their legal sentence. The fact that they are well off white male landowners shouldn’t exempt them from the vagaries and potential injustices of our criminal law.
The solution isn’t to commute or pardon the Hammonds. That only fixes a problem for two privileged white men. The solution is to fix the law so no one is treated unjustly.