The right-wing militia occupying the Malheur National Wildlife Refuge in eastern Oregon claim they are resisting the tyrannical overreach of a distant and unfriendly government. But aside from antipathy for the Bureau of Land Management and frustration with the federal government, Ammon Bundy and his companions seem generally vague or unsure of their broader mission.
They’d no doubt hoped their actions would prompt a larger response — squatting in a remote complex of federal buildings was meant to launch a general movement to occupy public land and bring it under individual ownership. With the chances of this happening close to nil, Bundy’s posse could, with considerable charity, be considered a vanguard formation without an extensive social base.
The immediate catalyst for the militants’ descent on Malheur was the re-sentencing of Dwight and Steven Hammond, who were ordered to serve the mandatory minimum sentences for their arson convictions after previously receiving exceptionally light punishments.
The Hammonds were convicted under the Antiterrorism and Effective Death Penalty Act of 1996, which mandates at least a five-year prison term for arson; fighting their return to incarceration is a cause célèbre for Bundy and other opponents of federal authority in states with large tracts of federally owned land. Beyond a demand for reconsideration of the Hammonds’ case, however, the militia members have not made mandatory minimum sentencing laws a target of their tirades.
Despite the glaring omission, some commentators are complaining of an apparent missed opportunity to forge a cross-ideological alliance against mandatory minimums.
Reason sees the Hammonds’ situation as an ideal illustration of the injustice of mandatory minimum sentencing guidelines. Over at Vox, the Malheur occupation has been cast as the coda to “a legitimate protest over a troubling law — specifically, a very harsh mandatory minimum sentence.” The Atlantic’s Conor Friedersdorf castigates liberals eager to see the coercive apparatus of the state directed against the Right for a change.
Friedersdorf deplores a tendency on “the cultural and ideological left” to think as a “tribe” — that is, as a political formation more concerned with in-group conformity than acting strategically. Mockery or dismissal of the grievances of Bundy and his followers, from this perspective, limits the possible scope of action by excluding potential allies in the effort to end mandatory minimums.
Certainly, any critique of police militarization that calls for equal-opportunity state violence is perverse. No worthwhile objective is secured by making martyrs of the Malheur squatters. But plenty of observers — including, importantly, many on the Left — have made pleas for restraint.
Nor is the Oregon standoff a critical juncture in the struggle against mandatory minimums — a struggle that requires first and foremost a sober reckoning with the structures impeding reform.
Reason’s Jacob Sullum views the Ninth Circuit as a villain, and Friedersdorf implores his readers to celebrate the courage of the judge who refused to impose the punishment federal law requires. But how can we hope to rely on the discretion of individual judges to roll back sentencing guidelines that are enshrined in law? Any federal trial judge who refuses to hand down the statutory minimum can count on being corrected by a superior court on appeal.
When he treated the Hammonds leniently, Judge Michael Hogan declared that five years of imprisonment was contrary to the dictates of the Eighth Amendment.
Hogan needn’t have made such a narrowly doctrinal argument. He could have said anything at all, because no amount of florid prose would, on its own rhetorical merits, have dissuaded the Department of Justice from appealing, seeking the imposition of the statutorily required sentence. The Department of Justice doesn’t always appeal sentences, of course — but it’s quite rare for judges to stray from the rules they are bound to follow.
In a different scenario, Hogan could have followed the sentencing guidelines but also provided the Hammonds with their own appellate argument in his opinion. This would have only slightly improved the Hammonds’ chances of getting a reversal on appeal — and then fighting an appellate battle with the federal government all the way to the Supreme Court — but it would have been a less doomed strategy than simply flouting the sentencing recommendations. Hogan was never in a position to prevent the Hammonds from serving the full length of their sentences, nor indeed to strike all federal sentencing laws from the books.
Minimum sentencing laws are cruel and abhorrent, products of the punitive politics that for decades has marred public policy relating to crime, policing, and incarceration. But the appropriate response is to pressure legislative institutions and confront the lethality and intrusiveness of contemporary policing — not to advocate a kind of judicial nullification.
In the eyes of the militia members occupying the Malheur Refuge, the Department of Justice’s appeal and the Ninth Circuit’s decision are evidence of the perfidiousness of the feds. Bundy described the legal proceedings against the Hammonds as an “attack” by the federal government.
Importantly, it was only one of many such attacks: “The Hammonds are just an example or a symptom of a very huge and egregious problem, but it’s happening all across the United States.” Bundy’s “very huge and egregious problem” is public land ownership, and the obstacles it poses to the attempts of ranchers and their investors to engage in land enclosure.
On their own account, the Malheur occupiers seek liberty for the Hammonds in order to secure liberty nationwide. The justice they seek for the Hammonds — and, by extension, landowners throughout the country — consists not of pardons or reversed convictions, but the demolition of public authority over the land.
Such justice for landowners does not look like justice for workers, or justice for the millions of lives that have been shattered by the carceral state.
Ideologically, then, the Malheur militants have little in common with left opponents of mandatory minimums. Their reactionary politics and armed bellicosity render them unfit as allies.
The ranchers and landowners that sympathize with them are also doubtful recruits to the anti-mandatory-minimum cause. They are not separated from activists on the Left by in-group boundary policing — they are divided from the Left by class.
Their interests are not ours. They are unlikely to be troubled by the substitution of law enforcement for active municipal governance in American cities, to reject the racialized ideology of “law and order” deployed to justify draconian policing, or to be outraged by the brutalization of those who have been encaged by the carceral state.
Least likely of all is that they will agree ending harsh sentencing laws, mass incarceration, and violent policing will ultimately require tackling the massive structural inequalities that pervade American society. The ranchers and landowners at the heart of this drama don’t object to the imposition of harsh sentences; they reject the very notion that the federal government has the authority to control the land they covet.
What is unfolding in Oregon is not a showdown over the wisdom of sentencing guidelines or an argument about jurisprudence, but an attempt to galvanize a movement to capture public land for private interests. There is no common ground to be found between left activists’ opposition to the carceral state and reactionary ranchers’ histrionics about an unrestrained federal government.
Writing mandatory minimums out of the law won’t happen until it’s politically untenable for policymakers to do otherwise. This will require organizing, strategic thought, and coalition-building across movements and formations.
What it won’t turn on is winning the hearts and minds of landowners who see public ownership of land not as the stewardship of a shared good but as a threat to their ability to profit from it.