Two Oregon ranchers, Steven Dwight Hammond and Dwight Lincoln Hammond, Jr., have been at the center of ethical and cultural clashes for several years.  Even while a standoff purportedly held in their honor between armed militia and the federal government was occurring in January, the ranchers reported to the Bureau of Prisons to serve five-year sentences.  The father and son were convicted by jury in 2012 for maliciously damaging the real property of the United States by fire, in violation of Title 18 of the U.S. Code, Section 844(f)(1).  U.S. District Judge Michael Hogan originally sentenced Dwight, age 73, to 3 months’ imprisonment, and Steven, age 46, to 12 months and 1 day.  (Any sentence over 12 months entitles the inmate to accrue good time credit and thus the opportunity to get out of prison earlier.)

Judge Hogan found that both men “have been salt in their community and liked.”  He also noted that the fires caused little economic damage to public lands.  He recognized that Congress had decreed that anyone violating Section 844(f)(1) must serve at least five years; however, he declined to impose the five years, “because this sort of conduct could not have been conduct intended under that statute.”  The behavior at issue was the ignition of a series of fires on lands managed by the U.S. Bureau of Land Management, on which the Hammonds had grazing rights leased to them for their cattle operation.  Witnesses at trial differed on whether some of the fires were started to cover up the illegal slaughter of deer on federal property, or whether the fires were for other, legitimate purposes and accidently got out of control.

Both of the men served their original sentences.

Meanwhile, the case was on appeal to the Ninth Circuit, because the government insisted that the sentences were illegal—that the law gave the trial judge no discretion to vary from the five-year minimum.  The Ninth Circuit had little trouble accepting the government’s arguments.  The statute enacted by Congress plainly says that violators “shall be imprisoned for not less than 5 years and not more than 20 years.”  It makes no exceptions for individuals who have been “salt” in their community or have caused de minimis damage to government property.  Accordingly, the Hammonds were ordered to return to prison to serve 60 months each, with credit for time already done.

How should conservatives react to mandatory-minimum sentences?  Typically, the response has been, “If you do the crime, you should do the time.”  Moreover, the noise raised by professional victims such as Al Sharpton and Jesse Jackson about “institutional racism” in the criminal-justice system has no doubt caused many conservatives to tune out.  But in recent years, opposition to mandatory minimums has received broader support.  For example, Sen. Rand Paul (R-KY) has called for bipartisan efforts to remove mandatory-minimum sentences and thus allow federal judges more discretion.  With prisons expected to consume 30 percent of the Justice Department’s budget by 2020, calls for reform will increase.

For most of American history, federal judges had broad discretion in sentencing criminal defendants.  Congress drafted statutes criminalizing certain conduct, and judges used their judgment in imposing punishment.  This changed, for two reasons, in the 1980’s.  First, in 1984, Congress passed the Sentencing Reform Act (cosponsored by Strom Thurmond and Ted Kennedy).  The legislation did not abolish all sentencing discretion in the federal trial courts, but it did channel and regulate that discretion through its published Sentencing Guidelines, drafted by the United States Sentencing Commission.

The Federal Sentencing Guidelines system is one of calibration.  For instance, as the quantity of drugs (or amount of money stolen) increases, there is a proportional increase in the sentence.  In addition, the more prior convictions an offender has, the higher the sentencing range is under the guidelines.

Second, at roughly the same time as the development and implementation of the federal sentencing guidelines, Congress began to enact statutes that included their own prescribed mandatory-minimum sentences, largely for drug and weapons offenses, and for recidivist offenders.  With regard to violations of these statutes, the only way a judge can issue a sentence that amounts to less than a mandatory minimum is if the government makes a motion based on a defendant’s substantial assistance in the investigation or prosecution of another person, or in certain drug crimes when a defendant has a minimal criminal history, was not armed, and meets several other criteria.

The changes wrought by the Sentencing Reform Act were based on a consensus that disparities in sentencing are incongruent with an equitable justice system.  For example, Republicans and Democrats agreed that a first-time offender in Massachusetts convicted of selling a kilogram of cocaine ought to receive the same, or a substantially similar, sentence as a first-time offender convicted in South Carolina who sold the same quantity.  The severity of the sentence, they believed, should not depend on the defendant’s luck of the draw in being assigned to a Carter appointee versus a Nixon appointee.  The act also abolished parole in the federal system so that an inmate has to serve at least 85 percent of his sentence.

The mandatory minimum applicable to the Hammonds was part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).  AEDPA dealt with a number of topics such as habeas corpus reform, restitution for crime victims, alien removal, and terrorism.  Section 708 of AEDPA provides “enhanced penalties for use of explosives or arson crimes” and contains the statutory five-year provision under which the Hammonds were resentenced.  This legislation was drafted in the wake of the Oklahoma City bombing and at a time when left-wing environmental groups such as the Animal Liberation Front and the Earth Liberation Front were burning and bombing locations associated with the fur industry, farming operations, and logging.

In federal cases not subject to mandatory sentences, a district judge must make an individualized assessment of a defendant in light of the nature and circumstances of the offense; the history and characteristics of the defendant; the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; the need to deter criminal conduct; and protection of the public from further crimes of the defendant.  These factors are found in 18 U.S.C. § 3553(a) and are, in the wisdom of Congress, important factors that a judge must consider when sentencing a defendant.  However, when a defendant is found guilty under a federal statute that includes a mandatory minimum, there is no individualized assessment under Section 3553(a).  Congress, via the statutory penalty, makes a broad assessment about the nature of the crime and decrees the result.

After a study of the efficacy of mandatory minimums, the Sentencing Commission has concluded that these penalties have “contributed significantly to the overall federal prison population,” and do not lessen “the propensity to reoffend.”  Very often, the commission noted, lower-level offenders are hit with mandatory minimums that were designed to punish individuals higher up the totem pole.  The commission also confirmed that mandatory minimums have a disparate impact on minorities:

Hispanic offenders constituted 41.1 percent of offenders convicted of an offense carrying a mandatory minimum penalty in 2012; Black offenders constituted 28.4 percent, and White offenders were 28.1 percent.

Considering the judicial activism that we routinely witness in American society, it may be difficult for citizens to trust unelected judges to evaluate each defendant properly and impose a just sentence.  Nonetheless, the question remains: Is the federal legislature the appropriate branch of government to decide a mandatory penalty that ought to be imposed for a particular crime?  Admittedly, Congress is an elected branch, and congressmen can be turned out of office if the people are unhappy with criminal laws they enact.  Congressionally imposed mandatory-minimum sentences governed by statute do address some sentencing disparities and solve the problem of some instances of unduly lenient sentences.  In 2005, the Supreme Court decided (in United States v. Booker) that the Sentencing Guidelines established in 1984 are no longer mandatory but merely advisory; thus, one could argue that statutory mandatory-minimum sentences are the only remaining way to eliminate sentencing disparities.

On the other hand, it is neither possible nor desirable to remove the human element from judging.  Sentencing should be an individualized process.  Congress recognized this when creating the Section 3553(a) factors that judges must consider at sentencing.  Eighty-five percent of all sentences do not involve mandatory minimums.  If Congress trusts the judges to sentence in accordance with Section 3553(a) in an overwhelming majority of cases, why carve out 15 percent?  Absent a defendant voluntarily agreeing to waive appellate rights in exchange for government concessions, the trial judge’s sentence is always reviewable by a federal circuit court.  Someone will be looking over the trial judge’s shoulder.

With or without mandatory minimums, there will be human error in sentencing.  The Hammonds’ trial judge believed that their conduct was not within what Congress envisioned when it enacted the mandatory minimum, and thus he unsuccessfully tried to deviate from the statute.  In other words, he believed that Congress erred by painting with too broad a brush.  While it is easy to have sympathy for the ranchers and their families, it is not difficult to find other cases where judges vested with discretion have merely slapped a dangerous criminal on the wrist and let him go his merry way.

In considering mandatory minimums, we are sailing between the Scylla of a careerist Congress and the Charybdis of an imperial judiciary.  The former has given us an $18 trillion debt, and the latter the fundamental right of same-sex “marriage.”  Perhaps the best we can do is to insist that our representatives use extreme caution in legislating mandatory minimums, because Congress is not in a position to make an individualized assessment of each defendant, and put public pressure on the courts to give due consideration to the sentencing factors when an offender asks to be sent home rather than to prison.