Understand: The esoteric criminal sentencing that mobilized Oregon's Cowliphate

The domestic terrorists who occupied the Malheur National Widlife Refuge Building in Burns, Oregon were mobilized over the plight of ranchers Dwight and Steve Hammond who were convicted of arson, sentenced to a year in prison, released after time-served, and then re-sentenced after the fed prosecutors appealed the judge's sentence.

The Hammonds appear to have lied ferociously about why and how they were setting fires on their land (fires that spread to nearby federal land), and the judge who said that the five year minimum sentence for arson would violate their 8th amendment rights to be safeguarded against "cruel and unusual punishment" has a very selective view of how his colleagues sentence other people, especially black people, for much lesser offences.

But when the feds went to an appeals court to get a longer sentence imposed, was there anything untoward going on? As former federal prosecutor Ken "Popehat" White explains, this is pretty much business-as-usual in the American justice system. It may be unfair, but it's not uncommon.

Back in the 1980s and 1990s, before the Supreme Court ruled that the United States Sentencing Guidelines must be treated as recommendations and not as mandates, the government routinely appealed sentences when they concluded that the judge had mis-applied the Guidelines in the defendant's favor. Now that the appellate standard is "reasonableness" of the sentence, the government appeals on that basis less often, but still does so. The United States has always routinely appealed sentences when a district judge has refused to impose a mandatory minimum sentence. Traditionally the Department of Justice has jealously guarded the mandatory nature of mandatory minimum sentences, appealing judicial defiance of them even in otherwise unappealing cases.

It's therefore not unusual at all that the government appealed the Hammonds' sentence.

Nor is the Hammonds' return to prison unprecedented. If the trial court imposes a short sentence and the appellate court overturns that ruling and requires a longer sentence, that's the result. The alternative would be that trial judges could avoid appellate review of sentences by making them short enough that defendants would be done with them by the time the appellate court could review them. That might be appealing to defense lawyers, defendants, and judges who believe in the primacy of trial court discretion, but it's not the law.

The U.S. v. Hammond appeal, reversal, and resentencing are not remarkable in the context of federal criminal law. Maybe they should be, but they aren't. Any suggestion that the proceedings represent a departure from the norm are incorrect.

What Happened In The Hammond Sentencing In Oregon? A Lawsplainer
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