President Donald Trump has issued several pardons now that demonstrate his thinking on what constitutes unjust punishment.
The presidential pardon power to commute and vacate federal prison sentences makes for an interesting political discussion but, in the rush to praise or criticize the presidents involved, political commentators on both sides of the aisle sometimes gloss over serious and controversial issues confronting the federal criminal justice system.
Trump’s most recent pardons of Steven and Dwight Hammond illustrate the point in relation to an issue that the left has criticized Trump for not addressing: mandatory minimum prison sentences.
Mandatory minimum prison sentences are prison sentences established by Congress for individuals convicted of particular federal crimes. Under federal mandatory minimum laws, judges cannot impose a prison sentence below the minimums required by those laws, absent extenuating and limited circumstances.
As Heritage Foundation senior legal research fellow Paul Larkin Jr. and former visiting legal fellow Evan Bernick have explained, “mandatory minimum prison sentences are the product of good intentions[.] [B]ut good intentions do not always make good policy; good results are also necessary.”
Whether mandatory minimum sentences have actually produced good results has been, and continues to be, a matter for debate.
And as that debate takes place, most people would acknowledge mandatory minimum sentences occasionally lead to unjust sentences.
Which brings us to the Hammonds, who were serving mandatory five-year federal prison sentences until Trump recently pardoned them.
Dwight and Steven Hammond
On July 10, Trump pardoned Dwight Hammond, 76, and his son, Steven Hammond, 49. The Hammonds are ranchers from Oregon and, like many northwestern ranchers, their privately-owned ranch straddles many acres of federally-owned land.
Operating in such close quarters has caused conflict between northwestern ranchers and the federal government over the years, and the Hammonds were no exception.
In 1999, Steven Hammond set fire to his own land, but the fire escaped and burned portions of the neighboring federal land the Hammonds leased from the federal government for cattle grazing.
Following this fire, the Bureau of Land Management, which manages federal lands, reminded Steven Hammond that burning federal land, even federal land under lease, without authorization from the agency was a violation of regulations governing federal grazing land. At that time, federal authorities acted no further against the Hammonds.
There were similar fires on the Hammonds’ property in 2001 and 2006, after which no action was taken. Then, in 2012, the government decided to prosecute Dwight and Steven Hammond not for violations of Bureau of Land Management regulations, but for violations of the 1996 Antiterrorism and Effective Death Penalty Act.
That law prohibits, among other acts, “maliciously damag[ing] … by means of fire or an explosive, any … real property in whole or in part owned … by … the United States” (18 U.S.C. § 844(f)(1).
A jury acquitted the Hammonds of most of the charges but convicted Steven Hammond of two counts and Dwight Hammond of one count of violating the anti-terrorism law, which carries a mandatory minimum sentence of five years in federal prison.
At sentencing, the federal district court judge overseeing the case said the five-year mandatory minimum sentence would “shock the conscience” and reduced the sentences to three months for Dwight Hammond and one year and a day in prison for Steven Hammond—both well below the mandatory minimum.
Federal prosecutors appealed the Hammonds’ sentences to the 9th U.S. Circuit Court of Appeals, which found that the district court judge had no authority to sentence the Hammonds below the mandatory minimum, vacated the sentences, and ordered the district court to re-sentence the Hammonds in compliance with federal law.
In October 2015, almost 10 years after the last fire, the district court judge re-sentenced the Hammonds to the five-year statutory minimum sentence and ordered the Hammonds to return to prison in January 2016.
Two weeks ago, the Hammonds were released from prison after receiving full pardons from the president.
Mandatory Minimum Sentences
Not everyone will agree the Hammonds received a raw deal. But their pardons illustrate the real and serious problem with mandatory minimum prison sentences.
When Congress passes a criminal law with a mandatory minimum sentence, we can infer that society is comfortable with labeling certain crimes as being so morally wrong that the mandatory minimum penalty is always appropriate and proportionate to the offense.
Yet mandatory minimums can produce injustices by forcing judges to impose arbitrary and severe prison sentences on some individuals for whom, given the circumstances of their crime, judges believe the penalty is too harsh.
Such was the case with the Hammonds and for many others. Despite society’s approval of the mandatory minimums, did the Hammonds’ punishment reflect equal justice under the law?
Separating Pardons and Politics
The federal criminal justice system works well in the vast majority of cases, but mistakes happen and sometimes the system fails. Our Framers recognized this potential, which is why they gave the president the power to pardon individuals who the president believes to have suffered injustices from the system’s failures.
Trump has called the Hammonds’ prison sentence unjust, and he took action to right the wrong.
Hopefully, we are all able to look past politics in this instance to see that mandatory minimum prison sentences can cause the federal criminal justice system to fail.
But we shouldn’t stop there. When it comes to pardons, we must look to the facts and circumstances of individual cases to help us better see and understand federal criminal justice issues.
All presidents must be objective and principled when it comes to using the pardon power. This will require the president to consider all individuals in federal prison who might have received unjust prison sentences, not just those individuals brought to the president’s attention by celebrities or social media.
Larkin has proposed many recommendations on that account (see here and here).
If and when that happens, we may be able to have even more productive discussions about meaningful criminal justice reform.
