Morning Ed: Oregon {2016.1.11.M}
Before it became the site of the current standoff, residents Malheur County, Oregon, expressed a desire to become a part of Idaho. If my dream of splitting Idaho ever came true, I’d be dipping into Oregon to constitute the state of South Idaho (name possibly TBD). No plans to include Jefferson, however.
Hal’s thoughts on the standoff in Oregon are worth your time.
The two sides of devout Mormonism. I didn’t know that the Bundys were Mormon during the flap in Nevada, but as soon as I found out that they had a son named Ammon, things kind of fell into place.
I wish I were more unsurprised that the Oregon protesters haven’t gotten much traction from the GOP presidential candidates. A lick of sense is better than no zero licks of sense, though, to be sure.
It’s been really interesting to watch a lot of people on the left defend a sentence that the judge didn’t want to pass down but was required to by a law that the left broadly opposes.
A somewhat sympathetic take on one of the angry ranchers complaints by, of all outlets, Grist. I am sympathetic to the ranchers in this regard, but in the personal sense and not the shared-outrage sense. But even if I don’t quite buy it, it was a noble effort by Grist.
The “Hal’s thoughts” article looks quite interesting, but seems to be about Denmark…Report
Sorry about that, @guy … fixed now.Report
One of the comments after the let’s-join-Idaho article asks the question, “Why Idaho? Why not Nevada, or Utah?” Aside from the obvious problem that the county doesn’t border Utah, both of those states have the same “problem” that Oregon does: they are increasingly dominated by the urban/suburban population center, the Wasatch Front in Utah and Clark County in Nevada. If you flap your ears at the proper conversations, you can hear the equivalent of the Grist piece in most of the western state legislatures.Report
I still don’t think five years for two counts of arson is, in fact, unjust. Or even that terribly long. It’s not exactly out of whack with the sentencing guidelines of the various states I’ve looked at.
The Atlantic article didn’t talk about the damages of the first fire, but mentioned the second one was only “1,000 dollars worth of damage” — but that second one was during a burn ban. We have them here, and the difference between “only 1,000 dollars and a few million is freaking’ luck. That’s why the fines and punishments during burn bans are jumped up so much more. The area is a tinderbox, and they really don’t want people lighting matches.
Multiple years in prison and heavy fines are pretty standard for arson, mandatory sentences or sentencing guidelines or not. If you’re burning more than personal articles (someone’s clothes, etc) maliciously, it’s always a felony. And it quickly ramps up to the highest levels of felony.
I’ve honestly been shocked at how lightly people are taking arson when this comes up — I suppose because all that burned was land. But that’s the whole thing with fire — that it only burned land and not towns was the result of luck and/or firefighters — not design. That’s why it’s punished so harshly, and always has been.
As for mandatory sentences — I suppose this particular case isn’t twigging my outrage meter because I thought the original sentence was ridiculously short for arson, and that the one they eventually got was more than fair.
But then, while Texas never caught on fire like California did, we’ve had SOME experience with such things. And idiots setting fires, especially during burn bans, deserves a nasty smack on the wrist.Report
Well, again, I don’t recall the government actually proving the case for “malicious” burning (and yes, I know the statute doesn’t require it, only intent, which I still think is wrong – most states have degrees of arson for a reason; under the federal rule, a campfire that burns anything outside of the fire ring is arson punishable by 5 years).
Still, the larger issue is that controlled burns are common in the west, for a variety of reasons. Back burns, vegetation control, etc. That is why there is a permitting process, so everyone is aware a fire is going to start. In addition, especially on land that borders federal land, fires, even the most controlled ones, cross borders. It happens, all the time, and normally it just results in a fine, if that (and we won’t even talk about how often the feds start a burn and damage private property with nary a word about compensation or whatnot).
The Hammonds testified that they called and got verbal permission for the back burn (which was reasonable since there was unlikely enough time for a formal permitting process, since land was burning at the time); and for the vegetation burn they called as soon as it became an issue, but (from what I read) had it out BEFORE firefighters arrived.
The poaching bit seems more likely a smear attempt, since the only witness was 13 at the time of the incident, and pissed off at one of the Hammonds for some issue regarding a tattoo.
Also note that the 2001 fire (the 140 acre burn) was at the edge of the statute of limitations, so one has to wonder why the feds waited that long to file charges given that they had all the evidence they needed back in 2001 to file an arson indictment.Report
Ergo, my overall point is that the government obviously has the right & the power to prosecute the Hammonds & demand the 5 years, but the fact that they are choosing to do so (given how infrequently residents of that wilderness are prosecuted for Arson), and that they are trotting out the charges for the 2001 case, makes me question their motivations and (IMHO) gives validation to the claim that this is a land grab, which would make this a perfectly legal bit of injustice.
Note that the conviction does not, in & of itself, allow the government to claim the Hammonds grazing rights, but having those two men in prison for 5 years will likely force the family to sell the rights back to government (probably at a severe discount), and potentially force them to sell their ranch, which the government has first right of refusal on thanks to a previous court case.Report
@oscar-gordon
You’ve said here and in previous threads that the government didn’t prove malicious intent.
But according to the Reason article, the statute the Hammonds were convicted under specifically requires malice. And the jury found them guilty of that charge. So unless the Reason article has it wrong, I’m not sure how you can say the Government didn’t make their case.Report
@alan-scott
This explains the disparity, I think. In short, the legal definition includes an element of malice or negligence, but the federal statute only includes intent.
So if you intended to start a fire, and you accidentally burn down federal property, you technically fall under the Arson definition, malice aside. This is why I mention that states usually have degrees of arson, because the person who starts a fire and accidentally causes damage should not be treated the same as the person who sets fire to a house for financial or emotional reasons.Report
IIRC, the state degrees of arson is also based on damages and costs. (I don’t know if that includes firefighting costs, though).
I know Texas’ does — you don’t need malice or intent if you cause more than 50k in damages to get hit with the Class A felony (the punishments after that only get worse if someone got burned or killed in the fire).
As for malice — I think you might be interpreting that wrong. As I understand it, malice means “not accidental” and not necessarily with ill will. Intentional or reckless behavior counts as malice. (Which is why campfires burning out of control don’t count, but burning trash during a burn ban might. Or setting fires on your own property that then spread. The malice is when you acted with intent, disregarding the possibility of spread).Report
You’d think with as many lawyers as we have on this site, one of them would have piped up and set the record straight for us by now.Report
I wish. But I suspect arson law might be one of those particular specialties. You’ve got firebugs, you’ve got insurance scams, you’ve got attempted or successful murder, you’ve got your ‘burn it down to cover up X’ crimes, you’ve got your Hammond “I was burning stuff on my own property” crimes, you’ve got your hate crimes, your basic “Fish you” to some level of government crimes, and of course the recently popular “It turned into a wildfire that took 8 weeks and 45 million dollars to control but I swear was a campfire” things…
I dug into Texas law just to see how we did it, and they basically have a “You killed someone/burned someone” bracket, then a bunch of felonies based on burning non-personal property that breaks down by damages, then a burning someone else’s personal property (like, say, their t-shirts or something).
But the sentences are not small. 2 to 20 years if you hit the felony level, and it only takes like 10k in damages to do that.Report
@oscar-gordon
“Maliciously” is right there in the law. Not all modern arson laws use the malice standard, but this one clearly does.Report
See my discussion with Morat above. To me, malicious means that the person was deliberately starting the fire to cause harm or in the furtherance of fraud. While there is some question as to if the 2001 fire was malicious (was it used to cover evidence of poaching? The one witness is rather unreliable), no one was claiming that the 2006 back burn was malicious.
So that makes me think that there is some disconnect between how I define malicious, and how the statute does.Report
So, should we just set the penalties for any and all DUIs the same as murder and/or attempted murder?Report
We DO treat DUI’s quite seriously, even when no-one was hurt and no road violations other than the DUI occurred.
An order of magnitude more seriously than, say, an illegal lane change or speeding. We treat DUI’s very harshly, even as the sole violation.
I suppose I could turn it around though: Are you in favor of treating attempted murder lightly, because no one was killed?Report
“Attempted murder.” Now, honestly, did they ever give anyone a Nobel prize for “attempted chemistry?”Report
Yes, but the nobel prize was in Literature.Report
So, should we just set the penalties for any and all DUIs the same as murder and/or attempted murder?
I don’t say this often, but I’m with Morat on this. I think the penalty for doing something dangerous should be proportional to the danger it’s likely to cause (which is within your control) rather than the danger it actually causes (which is largely outside your control).
With respect to DUI, I would say it makes sense to punish it in proportion to its likelihood of causing death, adjusted for the likelihood of getting caught. That is, if someone driving at 0.08 has a 1/5000 chance of killing someone, and a 1/100 chance of getting caught (I have no idea how accurate these numbers are), it should be punished as 1/50th of a homicide. Because statistically it is.Report
I don’t say this often, but I’m with Morat on this. I think the penalty for doing something dangerous should be proportional to the danger it’s likely to cause (which is within your control) rather than the danger it actually causes (which is largely outside your control).
I largely agree, as well.
The calculus is a little utilitarian for my taste, but the guiding principal is sound.Report
Not utilitarian enough!
It’s worth looking at the elasticity of DUI with respect to the punishment inflicted. If additional punishment doesn’t actually reduce DUI, then there may not be much use in increasing the punishment beyond a certain point.
And conversely, if punishing DUI more than 1/50th of a homicide creates a big decline in DUI for whatever reason, maybe that additional punishment should be tacked on even if it’s not exactly fair when compared to whatever we do with murderers.Report
I haven’t been following the Oregon situation closely, but I share the questions about some liberals becoming very authoritarian with regard to the sentencing. I’m not in position to say what a ‘just’ sentence should be in this matter so I won’t weigh in on that. I’m sure valid arguments could be made that the sentence was just right, too lenient, or too harsh. But I am troubled by the arguments supporting the sentence that are based on appeals to authority. If we were talking about a young Black kid getting time for pot possession, I think the arguments would sound different. Which tells me — for those folks at least — that the support of the sentencing is more about ideology than principles. I can’t get on board with that.Report
Well said @kazzyReport
BTW the Grist article does a good job explaining the issues with grazing, etc.
I feel for the ranchers losing their livelihood, but that is just the way things are. I get more upset at the tactics of the feds, who play hardball when it’s just easier to offer a nice buyout or just wait it out.Report
The Grist piece is pretty much the same point I was making about taxi medallions in the government failure thread: If a rent-producing asset is tradeable, then the rent is factored into the market price, so it’s not actually a privilege for people who had to buy it at market price. It’s basically a one-time gift to the owner of the asset at the time the policy is instituted.Report
I think this is a good take, @brandon-berg . It’s why I actually have a good deal of sympathy for medallion owners… but not to the point that I would make policy decisions on that sympathy.Report
Right. I don’t think we should keep bad policy because of this, but maybe it would make sense for the government to buy out medallion owners, at least at some fraction of the market price.
Part of me is inclined to say that it’s an investment like any other, and sometimes investments go bad and that’s how it goes. Maybe that’s a good policy to take with corporate owners, since their investors will generally be diversified, but owner-operators often have a huge chunk of their net worth tied up in the medallion. It seems pretty harsh to put a hugely disproportionate share of the cost of phasing out the medallion system onto them, when they were just doing what they had to do to operate a taxi.Report
Amortize it, rather than a straight buyout?
Somebody who invested 50K to buy a medallion last year should get most of his/her money back.
Somebody who invested 50K to buy a medallion 20 years ago should get considerably less, as they already cashed in on 20 years of restricted competition.Report
Here’s another post about the backstory going on out in Oregon. It admittedly has a bias, but, as we all know, all journalist are biased. I will say that there’s appears to be a lot of the BLM shenanigans going on out west. This was also an issue in Nevada with the Bundys.
http://theconservativetreehouse.com/2016/01/03/full-story-on-whats-going-on-in-oregon-militia-take-over-malheur-national-wildlife-refuge-in-protest-to-hammond-family-persecution/Report
Mandatory Minimums are a crappy solution to a crappy problem.
I can even see how someone might argue that the legislative branch shouldn’t be telling the judiciary how to do its job (just what the laws are).Report
I tend to agree. My whole thing with the Hammonds here is that the mandatory minimum wasn’t, in my opinion, an overly harsh punishment anyways. (It roughly fit the crime, based on eyeballing the rest of the US).
Nor is it an historical outlier. Arson’s always been treated with pretty heavy sentences and fines.
Checking the Federal arson law, they’re not too bad. They could use a graduation based on damages for fires that only burned property, and honestly I’d probably do some fiddling to differentiate between ‘land’ and ‘property’. (But then again, as many wildfires as we get these days, perhaps not).
So if we’re going to tackle mandatory minimums, I’d start with three-strikes laws and drug sentencing where you get hugely disproportionate sentences by any standard. (Especially three-strikes laws. Good lord).
I’d probably keep mandatory maximums, though. Sentencing guidelines (and later mandatory minimums) came about, if I’m remembering correctly, partially through the war on drugs (which has basically destroyed anything it touched) and partially as a way to reign in some parts of the judiciary (judges and prosecutors) who were abusing their discretion.
I suspect living in Texas flavors my opinion more than a little — our DA’s and judges are elected, and they all run as “tough on crime” (some run on how many people they’ve had executed) so I’ve seen what happens when discretion runs off the other end too.Report
While I understand, I guess, the idea behind Three Strikes laws (just hold up as an example a career criminal who has been busted 13 times for this, 10 times for that, 5 times for this other thing, 3 times grand theft auto, and once for littering and when someone asks “why isn’t this guy in jail?”, give a shrug). Keeping maximums will eventually bump into this again, I’m pretty sure.
It creates all kinds of weird and ugly incentives.
As for mandatory minimums, it was probably the result of the toxic war on drugs as a compromise to help deal with the whole “how come this guy gets *THIS* sentencing but that guy gets *THAT* sentencing???” and so they just transfer the wink and nudges to elsewhere in the process.Report
Well, I can also see the appeal of trying to level out the punishments, so that Crime X isn’t 5 years here, but only 18 months two counties over.Report
The solution seems to always be “make it 5 years everywhere!” rather than “make it 18 months everywhere” though.
And that’s without really getting into the whole issues of how we’ve overcriminalized everything to the point where we’re jailing people caught with a bag of weed too many times in the same prison as multiple murderers.Report
You’re just assuming 18 months is correct, not 5 years. I mean overzealous prosecution IS probably the smart bet, but — especially in rural areas — you can find corruption running the other way.
You’d be surprised how cheap it is to buy a sheriff or DA out in the boonies.
I’m totally with you on reform of the criminal system (although not with you on the ‘legalize all drugs’ bandwagon. Some yes, all no), but I suspect the very FIRST step is to stop electing judges and prosecutors.
Talk about bad incentives.Report
Buying off a sheriff or DA means that it never makes it to trial.
“I’ll let you off with a warning.”
“I’ll let you plea down to a broken taillight.”Report
Ah, no I’m thinking judges that give lenient sentences to donors or the ‘right sorts of folks’, prosecutors who offer sweetheart plea deals because they can’t avoid bringing charges but don’t have to punish good ole’ Bob too harshly, etc.
Minimums and maximums are part of the same cloth — one person getting too much, the other getting too little. Make them too broad and the problem persists, make them too narrow and you get unjust results as you lack any give for context.
But compared to three strikes laws, mandatory minimums and maximums are pocket change. At least you’re not in jail for life on a petty theft charge, you know?Report
There are other ways to address this rather than normalizing sentencing to a greatest common factor.
This is actually something that federated government systems could be good at, if we actually designed things that way. State governments and federal governments audit performance of lower levels of government.Report
I suppose it’s worth remembering why mandatory sentencing laws were passed in the first place: widespread a political perception that judges without statutory guidance were handing down sentences that were 1) light in comparison to the moral gravity of the underlying crimes so as to constitute a miscarriage of justice and 2) insufficiently harsh as to constitute a deterrent to future crimes.
I should hope that by now, we’ve given up on the idea that long sentences constitute effective prospective deterrents to future crimes, whether specific (the defendant will not commit the same crime again upon release) or general (other people will observe that the defendant was punished and therefore choose not to commit similar crimes). In terms of deterrence, the only thing incarceration has going for it is that this person is out of circulation with general society for a period of time. Maybe the defendant is put away for so long that when he gets out he is no longer physically able to commit similar crimes, but that’s age and not prison which has changed his behavior.
Also I hope we’re not still really clinging to the myth that people are going to somehow become better people by virtue of their experiences in prison. Rehabilitation may well happen anecdotally, but recidivism rates are so high that we ought to find risible the notion of prison as a place designed to teach inmates how to obey the law upon their release.
So that leaves the notion of incarceration as punishment, punishment as an inherent good without which justice cannot be said to exist. That seems a little bit cruel and barbaric when expressed as plainly as this, but then again so are other many other truths about our society exposed as cruel when spoken plainly: the right of free speech is there so people can get away with saying offensive things; handguns are tools intended to make the killing of a human being easy for nearly any adult to accomplish; the oath against perjury is functionally testimony on the honor code; the flag is a piece of cloth about which there is nothing particularly special as opposed to the country which it symbolizes.
So if we’re going to say that we’re putting people in prison because punishment is necessary to balance the scales of justice, then the point that the Hammonds are being unjustly punished is valid indeed.
I read in the Reason article that their two burns took a total of around 150 acres of Federal land, or just under a quarter of a square mile. Out where I live, we refer to a “section” of land being approximately one square mile (the “section” actually refers to the Jefferson system of public land survey grids; one section is usually approximately one square mile but may be a little more more or a little less because of the curvature of the Earth).
Those of you who live in relatively productive (that is, well-watered) land probably think this is a lot of area because a quarter section of land in, say, Maryland or Georgia is more than enough to support an orchard or a lot of livestock. Those of you who have most of your experience in urban areas think of a quarter of a square mile as a huge amount of space because it’s so very dense: if I define downtown Manhattan as basically everything south of the Brooklyn Bridge (imaging that the path of the bridge were to continue in a straight line all the way across the island) that’s a little bit over one square mile.
But when you’re dealing with fields of generally arid scrub as you’re likely to encounter in eastern Oregon, this actually isn’t a whole lot of land. Or at least, it sure doesn’t seem like it to the locals. Maybe you can graze as many as ten head of cattle — if you supplement the local growth with bales of hay or alfalfa. Yes, it’s a bad thing to let your fire get out of control. Yes, it’s a bad thing to burn the government’s land. That wasn’t your land, after all. So some punishment seems appropriate. But this really ought to be a pay-us-back-the-costs-of-the-firefighting situation rather than a put-em-behind-bars type of situation.
Congress had other ideas, and it’s entirely appropriate to point out that this law, mandated by Congress, compels an injustice — in an effort to urge Congress to change the law. Is that worth getting arrested for trespassing over? I guess these guys think so, and if that were all that was going on, well, that’s civil disobedience and it’s part of our society. The only real problem here is that these fellows came to do their civil disobedience armed, and that suggests to me that they aren’t there to say “the law is unjust” so much as to simply pick a fight with the Federal government and the pretense need only be plausible.
This is about authoritaii, not justice.Report
Great comment.
What do you think of the success of e.g. Norway at cutting recidivism. I understand that – given exactly the forces you described – politically there’s no chance of borrowing even as much of a Scandanavian justice system as we managed from their healthcare systems.
But do you think it serves as a proof of concept that, if Adam Carolla becomes king and as his second act (1) snaps his fingers to summon sufficient motivation from the people as a whole, reform is possible to a recidivism-focused system that might actually have an effect – in this country?
(1) The first, of course, being to change the spelling of “team” to “teiam” so that from now on there will always be an “I” in “team”…Report
To pick a tiny nit, long-term incarceration continues to serve the goal of incapacitation.
After all, if you’re locked up, then the only crimes you can commit are against your fellow inmates.
But an honest assessment of the success of incapacitation would quickly recognize that we are keeping people in prison way too long. Yes, any inmate ever released technically regains the capacity to offend again. So if you take the incapacity argument strictly, then even the most minor offense justifies life imprisonment. Very few people (not running for office) think that way. So at some point the incapacitation argument needs to take into account the likelihood of re-offending. And the evidence is pretty clear that around one’s mid-30s recidivism drops way off.Report
I will continue to point out that, in the case of fire, the amount of area burned is due entirely to the vagaries of chance and the skill (if applicable) of firefighters.
While some consideration should be given to actual damages inflicted, the generally hard sentences for arson are a result of the fact that those damages could always have been worse, were it not for sheer luck.
One of those fires was set during a burn ban, when the county was a tinderbox and firefighters nearby were already battling one blaze. That was the smaller of the two fires, and I suspect it’s small size was due to those firefighters who had to turn from one fire to another one — as the fire the Hammond set was close enough to their location that it forced them to move camps even as they fought fires.
I cannot, in all sincerity, hear the defense of “It was so little land burned” without comment. It was no virtue of the Hammonds that so little damage was done, nor a result of any of their actions. They lost control of BOTH fires, after all.Report
2006 back burn – The federal land adjacent to their property was already on fire, hence the back burn. No firefighters were involved in putting out the back burn, they were camped nearby, saw the back burn, reported it, and moved camp. I see no mention that the firefighters diverted from their efforts elsewhere. Describing that as losing control is a stretch.
Have you ever fought a wildfire? I have. Not in WA, but I fought quite a few in WI, most courtesy of some ass tossing a lit cigarette or firework out the car window in the middle of July. Nobody maintains perfect control of such a fire. Not even professional firefighters. There is always the possibility it’ll slip past, or jump, and it happens all the damn time, even to the federal agencies who occasionally do controlled burns. You just work on your section until it’s out and move to the next, jumping around to protect people & structures as best you can.
You demand the impossible. Either they set the back burn & maintain perfect control of it, or they trust to the firefighters and hope the fire doesn’t hit their fields. There is such a thing as extenuating circumstances, and having a wildfire on your doorstep should count as one.Report
Welcome to the life of criminal defense counsel. You have extenuating circumstances to argue, overzealous prosecution and weak testimony.
But the jury convicts anyway on one count, you’re facing a second count that could result in very substantial time if you’re convicted on that one and the government comes back with a plea deal. Do you take the deal and live with a known outcome or roll the dice on continuing to litigate?
Feel free to drop by any county or federal courthouse any day of the week and watch your fellow citizens get ground up by the system. It ain’t just ranchers. Prosecutors everywhere grossly overcharge and force settlements out of defendants who had a legitimate defense case.
There’s plenty to be outraged about in the criminal system. These particular defendants make good copy based on American (Marlboro man) mythology. But as a factual matter they were treated no worse and in fact far better than many of their fellow citizens.Report
@francis
This is exactly my point.Report
I don’t demand the impossible. They weren’t firefighters. They shouldn’t have been setting the back burn in the first place.
It wasn’t their job. They weren’t trained for it. They weren’t insured for it. They lacked the skills, manpower, and equipment to handle setting it OR fighting it if they screwed up.
In short, maybe they shouldn’t have been playing amateur firefighter and complicating the efforts of real firefighters. That’s not “impossible” that’s flipping common sense.
And I suspect that’s one reason a jury of their peers convicted them for it. They stupidly and recklessly set a fire, for stupid and reckless reasons, that made life even MORE difficult for the people trying to fight the already existing fires.
It certainly didn’t save their pastures, which I would assume — as these are ranchers who, supposedly, have managed to not go bankrupt — have some sort of insurance that would have mitigated the damages in the first place. (But probably NOT against their own stupid fire).
There’s a simple defense against arson, you know. It’s called “don’t set fires”. You didn’t see people in California, who were losing their homes, setting amateur back burns, did you? They shouldn’t have set the stupid thing in the first place. THAT is an ironclad defense against arson, and an entirely possible response to the threat of fire. Let the firefighters do their jobs, don’t make it harder on them, and trust in the insurance you should have if they don’t manage to save your farm. Because if they can’t save your land, your amateur, bush league efforts aren’t going to either. (Which, in fact, they didn’t).Report
@morat20
I’m sorry, but this is something you are woefully disconnected from. Farmers & ranchers are well versed and experienced at starting & fighting fires. It is an integral part of their normal existence. I learned how & when to do it before I had a driver’s license. The evidence of this is simple, the fact that they can call & get permission to start a fire & the fire department will not send out a team unless they get a call for help. When we would do it as I was growing up, if the local FD was not busy, one of the volunteers would stop by and check on things; assuming, of course, that the farmer himself was not a member of the local volunteer FD, which most were, at one point or another. Which is my point here. Much like how EVERY sailor in the Navy is a trained firefighter, most people whose lives & livelihoods are centered in an area prone to wildfires have gotten training & has experience fighting fires.
I don’t expect homeowners in CA to set back burns because I don’t expect homeowners in CA to have any knowledge or experience in doing such a thing. If you talk to other farmers & ranchers, I expect you’ll find them all well versed in setting and fighting fires. I also expect you’ll find that when they do occasionally burn federal land, they get a fine or a bill for damages, not an arson indictment. This is most likely why the judge set the lower sentence.
That said, the amount of conflicting information over this is staggering. Trying to parse out the spin on it from all sides is giving me a headache. So here is my final take on this:
The Hammonds have been pissed at BLM & F&G for over a decade (justifiably or not, I can’t say), and have not been shy at pushing the line on what they can & can not do. Despite how their neighbors may feel about their character, they used up whatever patience or goodwill the BLM/F&G managers had, and those folks decided they were done playing nice with the quarrelsome family. So when the opportunity presented itself (and I’d wager the back burn was the final straw for them), they brought the hammer down.
The fact that the family is quarrelsome, or an absolute PITA, is not a moral or ethical justification for aggressive prosecution. The fact that the BLM/F&G have expressed interest in the Hammonds land (evidenced by the fact that have a standing first right of refusal on it all) puts a nasty color on this all as simply a land grab, the manner of which has a long and storied history in the US (the family will likely be forced to sell their property in order to survive the period of incarceration).
So as Burt has said previously, shit sandwiches and unpleasant players all around.Report
Let me reiterate: They set a fire during a burn ban, as an attempt to make an amateur back burn. This got in the way of actual firefighters, fighting the fire the Hammonds were trying amatuerishly to fight themselves.
Literally, they were told NOT to start fires (that’s what a “burn ban” is), the fire they were back-burning against was ALREADY being fought by firefighters.
However common setting fires is normally, in the middle of a burn ban WHILE an active, out-of-control fire was being professionally fought nearby, was NOT the time any reasonable human being decides to set his own back fires.
That’s the critical context to the arson charge. That they started this back burn during a ban on fires, to combat a fire already being tackled by professionals, and did so without any permission whatsoever — and interfered with the actual fighting of the fire in the process.
I’m pretty sure that’s not “common behavior”. In fact, that seems like textbook arson, because regardless of their motivations they added another out-of-control fire to the one already being fought.
It was NOT a situation they should have worsened, it was NOT a time to play firefighter no matter how common such things are, and they were convicted by a jury of their peers for doing it.
Note: Convicted. They did not plead to it. That fire was one their peers convicted them on. Those peers that had access to all this evidence that we find so conflicting, and who live and work right there and understand whatever mythic Western culture and ranching habits involve setting fires.
Something we should keep in mind as we attempt to re-litigate this — regardless of our feelings on the punishment, the charges of arson were sustained by a jury. That they are guilty of arson is not something we should be arguing over without some new evidence, because God knows we aren’t in a better position to judge than the jury of their peers that voted to convict them.Report
“Something we should keep in mind as we attempt to re-litigate this — regardless of our feelings on the punishment, the charges of arson were sustained by a jury. That they are guilty of arson is not something we should be arguing over without some new evidence, because God knows we aren’t in a better position to judge than the jury of their peers that voted to convict them.”
@morat20
Would you take this same position if we were discussing a Black teen convicted of drug possession who maintains the drugs weren’t his?Report
Would you take this same position if we were discussing a Black teen convicted of drug possession who maintains the drugs weren’t his?
Errra… How’s this analogous? Maybe the issue you’re wondering about is whether Morat would view things the same way if a black rancher was convicted of letting a back burn get outa hand?Report
My point — as I made elsewhere — is that some liberals (Morat20 in particular) are suddenly taking a very pro-criminal justice system/authoritarian position because the folks getting churned through the system are a couple of rural white dudes from the right side of the aisle (at least, I assume they are… I actually know nothing of their politics).
Elsewhere, Morat argued that the government defined arson as XYZ and therefore anyone doing XYZ was guilty of arson. Now he’s arguing that someone found guilty by a jury is inarguably guilty.
These are not typical liberal positions and positions I doubt Morat (and others) would take if the circumstances were different.Report
I’m taking the libertarian position of suing the goddamn shit out of them in the courts, rather than counting on the government to do it’s fucking job.Report
Depends on the use of the word ‘guilty’. I mean, it seems pretty clear to me that the Hammonds freely admitted to most of the required components of arson, as defined by law.
But then a jury had to vote to convict on it — 12 of the accused peers. Which they did. Which does make them legally guilty.
If we want to call that an unjust result or something, I’m all ears. Maybe there’s new information the jury didn’t see? A crooked judge? The jury didn’t in any way resemble a jury of peers, and was thus biased?
But like I said, if we’re gonna argue about whether or not it was arson — we have to face the fact that a jury, armed with all the facts we have (and many more) found it was so. That’s pretty compelling evidence. Doesn’t mean it’s right — juries can and have been wrong! — but it should be something that’s put into the mix, and not left out like we were discussing a case that hasn’t even been before a grand jury yet.Report
My position (& I apologize if this wasn’t clear) wasn’t that the legal result was wrong, as such. I feel that they were over-charged, and that they were over-charged specifically because they A) are a PITA to TPTB, and B) BLM/F&G want to halt all grazing in that area, and forcing them to sell their grazing rights and land to BLM would satisfy that desire.Report
Well, from what I’ve read, a “jury of their peers” is something black people don’t get so often. In fact, I think that’s actually well-known, running problem….
In any case the conversation here — Oscar was talking about common culture and habits and stuff in Oregon that might seem a bit alien to us from other states, in which the fact that the jury there WOULD know these things.
So in terms of what is and isn’t common culture, use, habits, etc in Oregon is somewhat moot when the folks that judged it were…from Oregon. From the same county, in fact.
Indeed, it’s highly possible I’m far too critical about setting fires coming at it from a Texas perspective! But the guys on the jury weren’t Texans. (Which is the whole point of a jury trial. Well one of the points).
So winding back to the point: The actual conviction, after a trial, by a jury of his peers is a pretty hefty data point. It’s not the end-all and be-all of it, but it certainly shouldn’t be ignored entirely. Especially not when the subject is ‘customary land use’ in a far-away state.Report
Quoted from my posting above:
“In 2006 a massive lightning storm started multiple fires that joined together inflaming the countryside. To prevent the fire from destroying their winter range and possibly their home, Steven Hammond (Son) started a backfire on their private property. The backfire was successful in putting out the lightning fires that had covered thousands of acres within a short period of time. The backfire saved much of the range and vegetation needed to feed the cattle through the winter. Steven’s mother, Susan Hammond said: “The backfire worked perfectly, it put out the fire, saved the range and possibly our home”.”
I HAVE fought grass fires on washington state. I did it as 17 year old. I’ve seen what it can do. I’ve shoveled dirt onto the fire with a shovel for 12 hours in the middle of the night along with 50 of the rancher’s neighbors. “Burn ban”? Yeah, I’ll comply when my home and my livelihood aren’t in jeopardy. Insurance? That’s nice. Check’s in the mail. Meanwhile, how am I supposed to eat?
Besides, the local DA determined the charges didn’t merit prosecution, you know, ’cause probably he understood what they were doing. The feds? Not so much, ’cause rules is rules.Report
Which quite obviously justifies armed insurrection!Report
@stillwater
No one is arguing for that.Report
See Damon’s comment just below this one.Report
Yeah. I almost responded as Oscar did, but then saw it was Damon. Since Damon is Damon, that’s fair ball.Report
Hey hey hey!
I’m just “clinging to my religion and guns”. 🙂 No seriously, I’m an atheist and I don’t have a machine gun.Report
Well according to the timestamps, no one was arguing that when I made my comment.Report
Still, armed insurrection in this country was justified a long time ago…Report
This isn’t the Revolution. It’s the Whiskey Rebellion.Report
A burn ban is meant to prevent people from starting a fire where there is none, during conditions where a fire can grow out of control quickly.
If they had decided to do some species control during a burn ban, I’d be standing right there with you. That would be some grade-A stupid. But if the countryside all around you is on fire, and that fire is heading toward you, a back burn is not necessarily a bad idea. As a matter of fact, one could call it prudent.
But we seem to keep arguing a conflation of what is normal in that area, and what specifically they did that pushed or crossed the line.
For the 2006 fire, the thing that gives me pause is not the use of the back burn, it’s if he knew the firefighters were camped on the hill above (something the government contends, but I haven’t seen the evidence that shows Hammond knew or should have known a team was up there). This may be a case that arguing for reckless endangerment was a tougher slog than simply showing arson, since they had all the elements of an arson case, even if it wasn’t something they normally prosecute.Report
Once upon a time Ken @ Popehat had done a bit of a primer on federal sentencing guidelines, which while somewhat byzantine, seemed to be a good model. I would assume in this case, those guidelines would start at 5 years and go up.Report
Jamelle Bouie has a really good take on it (as usual.) Report
I dunno, I think he’s misreading a lot of anger on the left.
At least as far as the leftists and such that I know express the sentiment of “Why aren’t you treating them like you do other protesters” (excessive force), it’s not a request to USE excessive force — it’s pointing out the double standard, that in other cases with similar threat levels they would use excessive force. (Then again, it’s the Feds, who have clearly learned from Waco, and I applaud them for it).
They don’t want the government to use excessive force against these idiots, they want them to STOP using them against other idiots, by pointing out that quite clearly restraint and patience is an actual tactic that actually gets used.
Mind you, I also think these idiots should get arrested, but I’m happy with patience rather than violence as a method to get there.Report
That’s the argument Jazzy was making. And others. I suspect that Bouie, though, has been running into people that actually want them to go in there guns blazing. I certainly have. Not that the cases have been treated differently, but that if a difference is justified it’s gone in the wrong direction.
Jesse Singal made the point that a lot of lefties are too young to really remember Waco and RR. And believe the government won’t get violent even when it should. That’s the historical record Bouie is trying to correctReport
I am talking of people who, I admit, are roughly my age. (40-ish).
It’s quite galling to note that macing, pepper spraying, and shooting hippies and darkies is apparently a-okay, but a bunch of good ole’ boys with guns require kid gloves.
That’s hardly equal treatment under the law. It is, however, an excellent visual example of privilege.
Although, as I’ve said, in this case it’s also a pretty good example of the Federal government showing entirely different priorities than, say, you average local LEOs.Report
What’s the alternative to kid’s gloves? Does the phrase “kid gloves” have connotations that stronger gloves would be warranted? I mean, after all,we aren’t afraid to get tough with a different sort of folk. So…
I know you don’t want to turn this into a Tarantino flick, but the framing of the issue would leave it open to interpretation for someone that didn’t know your views on the subject.
I think you do point out a pretty key factor in the difference, which is local versus federal. Reaching back to the experience the latter has in things like this.Report
As an aside, from a recent Facebook conversation:
He’s at least theoretically arguing against the disparate treatment.
He also says “Let them die like patriots.”Report
“Kid gloves” is a reference to the material of the gloves. Gloves made with the skin of a “kid” (that is, a baby goat). They allow for delicate handling without leaving smudges.
I think that it’s fair to think that the people here could be smudged a little. Which is not the same thing as “shot by snipers”. Hell, shot at close range.
Maybe pepper sprayed. I considered tear gas but remembered the theory that tear gas started the fires at Waco and I think that something like that should be avoided.
But “smudged” is within acceptable outcomes.Report
And if they were “shot by snipers” it wouldn’t be an example of excessive force on the model of RR or Waco.
It’d certainly still be excessive force, tho. And the result of a stupid escalation of an otherwise pretty silly
armed insurrectionprotest.ReportActually, the word I’d use is “arrested” and “charged with trespassing” rather than indulged like little children who don’t know what they’re doing.
Now if they were actually dumb enough to fire on police, obviously that would result in further charges and change the calculus.
But honestly, the pure optics of this is that armed white men can do whatever the heck they want, without fear of legal repercussion.
In fact, last I heard, they were tearing down fences so that ranchers could graze on public lands. (Also known as “theft” and “destruction of public property”). Again, the sort of thing that warrants charges, arrests, fines, the usual stuff that happens when you break the law.
None of which, I note, are actually happening. (Nor did they ever happen the last time the Bundy’s did this, as best I understand).
I don’t want anyone to go in shooting, and I’m perfectly content with patience — but I’m rather suspicious any of those yahoos will ever see any charges, despite quite clearly earning them. Which is a privilege often afforded to men of a darker complexion.
Because they didn’t last time. At the very least, you’d think the Feds would be noting the potential charges these guys were racking up — rather than treating them like children having fun.Report
We’ll see if there are charges when all is said and done. On that side of things, we are likely in agreement.Report
There weren’t, IIRC, for the Nevada idiocy these same folks were involved in. Not even misdemeanor charges for getting in law enforcement’s way.
Which is, I suspect, one reason they were so happy to continue to tilt at the windmill. What’s the downside?Report
They’ll be finding out the downside if they take even a single step outta line this time. There might be some benefit to the other side havin’ bored lawyers (and by other side I don’t mean the guvmint).Report
I mean, after all,we aren’t afraid to get tough with a different sort of folk.
Here’s a goup of people, relatively heavily armed, in an isolated spot, claiming they’re looking for a confrontation. (Not how I would provoke a confrontation, but that’s maybe just me.) Implicit in that, I think, is that they’re looking for publicity. The authorities know who they are individually. Leaving them out there, not getting the attention, increasingly cold and hungry, seems like exactly the right thing. At some point they’ll leave. The authorities know who they are and can arrest them at a convenient time.
Groups like Occupy and Black Lives Matter take a rather different approach that has a lot more potential to get out of hand.Report
Cold and hungry would require cutting off their power AND preventing them from re-supplying, something the Feds have chosen not to do.
As best I can tell, the Feds seem mostly there to ensure these idiots don’t go shooting the locals and otherwise are just ignoring the situation.Report
Michael,
problem is, they can’t afford to leave no more. (some of their cars broke down, and they’re expensive to fix/tow in the middle of nowhere)Report
a lot of lefties are too young to really remember Waco and RR. And believe the government won’t get violent even when it should. That’s the historical record Bouie is trying to correct
For the historical record argument to work as an analogy, the force threat presented by the US gummint would be against the two perps who set the fires (and who agreed to surrender, right?). But there was no threat of force against those guys.
Is the argument supposed to be that VanillaISIS commandeered that building in order to prevent excessive violence against US citizens akin to what happened in Waco and RR? (I thought it was to protest the criminal charges or to Make America Great Again by returning federal lands to local use (Native Americans?) or something?)
Either way, tho, the use of force against Yallqueda would be an entirely different animal than the force used against folks at RR and Waco and would seem entirely within the legitimate authority of the feds to do so.
Also, if this “protest” is about grazing rights and fees and land-use generally, then what’s the purpose of the guns? I mean, they’re making a political argument here, right?, regarding what they view as bad policy. So … why the guns?Report
If you want to turn Bouie’s argument, and my own, into a defense of the Bundys, feel free. My presence really isn’t necessary.Report
No, I’m don’t think you’re defending him. I just think the analogy doesn’t make a lot of sense in this particular case.
As to the question regarding the guns, I’m genuinely perplexed as to why they have em to make a *political* point about federal land policy. Unless, of course, they wanna go out guns ablazin to defend Freedom! (Like that Muslim-stalking doofus who posted a Youtube video to his kids…)Report
I’m guessing that they’d prefer to use the land for free, instead of just at a massive discount. Because “freedom”.Report
That strategy worked for Cliven Bundy. He hasn’t paid any of the $1 million in backrent owed.
Then there’s this:
In 2013, the federal grazing fees of $1.35/AUM were just 6.72 percent of fees charged for non-irrigated private grazing lands in the West, which averaged $20.10 per AUM. The gap has widened considerably since 1981, when the federal fee was 23.79 percent of fees charged on private rangelands. The federal grazing fee is generally also considerably lower than fees charged on state-owned public lands.
So, he’s getting a better deal than comparable state grazing lands, and would pay about 15ish times more for private grazing fees. (Liberals musta written that report…)Report
Right now they aren’t very similar. Neither were Waco and Ruby Ridge had little in common… until they had something big in common (overshadowing the multitude of differences). The feds are trying to prevent it from being Waco, Ruby Ridge, and this as all having something big in common.Report
Jamelle missed a step. They’re treating the bozos with guns like the Quakers and Mennonites.Report
Since Slate was brought up, a Slatian argument might be that the wariness of the police in approaching heavily armed and openly violent militias, versus approaching hackysack playing hippies, would prompt the reasonable conclusion that BLM and Occupy should probably arm themselves and get a few kills under their belt, to get the same level of street cred.
I’m not making the argument. Just saying it sounds counter-intuitively Slatian thats all, in its “Lets not draw the wrong conclusions here”.
And that it has been used to explain Iran’s mania for nukes based on the disparate treatment the other Axis of Evil powers (Iraq and No. Korea) received at the hands of the US Government.Report
BLM should kill a few cops, or get a few of their members killed? This is an important distinction.Report
Haven’t they tried the latter without success?
Like, repeatedly?
Come to think of it, wasn’t that the very reason for their existence?Report
I think the point about arming themselves is well made. The part about killing people, though… doesn’t follow. I mean it may be true in the sense that having hostages changes dynamics, but that’s a double-edged sword to say the least.Report
One explanation for the wariness is not that the police suddenly found compassion, but they are sniffing the wind to see which course of action the public would support. A Waco style bloodbath would solve the tactical problem, but inflame the political. Unless the Bundy’s draw first blood, for example.
Which explains the constantly shifting rhetoric from the Bundys, threatening violence now, then offering conciliatory gestures, then more threats and declarations of victimhood to legitimize any violence.
The massive overreaction in Ferguson wasn’t a sign of how the cops were afraid of the protestors so much as a sign that they had nothing but contempt for them, believing that nothing they did to the protestors would matter to the American public.
This isn’t an irrational act by crazed rogues- this is explicitly political, an attempt to change through the ammo box what they can’t at the ballot box.
I’m comparing them to the 1970’s era radicals in Europe, the Red Brigades, the IRA, the Red Faction, Baader-Meinhof.
I guess I am over mocking these guys as bumbling hicks. Given that the militias have managed to bend the compass of law enforcement and make even Presidential candidates speak cautiously, they should be treated as a serious threat to the political process.Report
This.Report
+1 Chip. Cosign everything you said.
Well, except for not making fun of those guys anymore.Report
I’m down with believing that the only thing stopping the government from engaging in a needless bloodbath is public opinion, though that does seem uncharitable.
They certainly agent bumbling idiots. I think once this is done the government should come down on them like a ton of bricks. What happens at Point B is a different question than how to get from Point A to Point B, though.Report
“I’m comparing them to the 1970’s era radicals in Europe, the Red Brigades, the IRA, the Red Faction, Baader-Meinhof.”
It’s a nice fantasy considering how many folks those groups killed.Report
I was going to compare them to the Colonial Minutemen, but look how many people THOSE guys killed.Report
Too many people are using the word “police” like all law-enforcement agencies are interchangeable. The Malheur refuge situation is the FBI (and presumably ATF); Occupy and Black Lives Matter were generally handled by local urban police forces. The FBI and ATF made drastic changes in their rules of engagement after Waco and Ruby Ridge. Local urban police, clearly not.Report
So clearly what Occupy/BLM needs to do is protest on Federal property, instead of in their neighborhoods.
So far the Bundy clan is smart in this one regard, they make sure that it’s the feds they are dealing with, which makes sense, since it’s the feds they have issue with.Report
So far the Bundy clan is smart in this one regard, they make sure that it’s the feds they are dealing with, which makes sense, since it’s the feds they have issue with.
Oregon sheriff accuses armed protesters of intimidating federal employeesReport
So they’re rifling through Fish and Wildlife documents, harassing Fish and Wildlife employees….
Such brave, brave protesters to stand up to the viscous, jack-booted, well-armed thugs of Fish and Wildlife.Report
Can we say civil suits? Why, yes, we can…Report
Further evidence these guys are not in league with the local ranchers, who have not only expressed a desire for these guys to leave, but who are very supportive of the local federal employees (they have grievances with the powers that be in federal office buildings in Portland & Salem & D.C., not with the “boots on the ground” in the parks & forests).Report
I do love the “let the states have the land” thing. The state’s, in general, can’t afford the land. They’ve looked into it.
There’s a reason so much of it is federal land anyways. The Feds have the money (well, specifically the East subsidizes those vast parks, including the really cheap grazing the ranchers get).
I’m still irked that those whiners are complaining that they get to graze for a fraction of the cost of private land, but apparently that’s not good enough. They want free access to public land to do whatever, without paying a penny.Report
Whiners being the Bundy’s?
I know the western states largely can’t afford to manage all those lands all at once (if, say, the feds just dumped almost all the land onto Utah, Utah would have trouble with it), but the feds not only don’t want to talk about returning some of the land back to the states, they are largely busy acquiring more & more of it. And, of course, the feds can’t actually afford the land either, since they can’t afford to manage it properly, which is why we have out of control wildfires every year, the cost of which falls heavily onto the states. And while the feds usually declare a state of emergency and send money back to the states, it would cost everyone a whole hell of a lot less money to just manage the wilderness to limit fire potential and damage.
As for the East subsidizing those vast parks, if that’s an issue, start asking your elected officials to stop approving the expansion of the same.Report
Let me change that a bit, it’s not that the feds can’t afford the land, it’s that they won’t allocate the budget to manage it (at least, that’s what I hear the Rangers and other fed employees say).
Also, while the states obviously could not afford to get all the land back at once, they could afford to start getting some of it back in manageable sections. Get a chunk, sell it or make it into a park, and start generating tax or user fee revenue from it, then get some more. Rinse and repeat every few years until the state & the fed reach a happy place.Report
What the Bundys have stumbled onto, is what in other countries called “Land Reform”, where there is a national questioning and challenge to the existing disposition of land ownership.
Why indeed, does the federal government “own” this or that piece of land?
Why does the state in which its located?
Who are the “rightful” owners?
How would we go about making that determination?Report
Thing is, this conversation has, for all intents and purposes, been captured by environmental interests, who are not interested in any conversation that does not start & end with returning the land back to it’s natural state, or at the very least sparsely populated with no agricultural or mineral uses.
Which is fine, but such land still needs to be managed adequately, and budget has to be allocated for that.Report
This stunning victory by the environmentalists would come as a shock to them, as well as Western timber, mining and oil interests.
The question of who owns the land has been around for a long time, but only in fits and starts, usually provoked by an interested party.
I’ve heard the relationship between Western ranchers and the Federal government described as analogous to peasant farmers and European lords, where a faraway nobleman would own vast tracts of land, often that he had never seen, and the peasants who worked the land were not allowed to have title to it, but could only rent it.
One of the novel ideas that came out of the Enlightenment was the notion that these land claims were illegitimate- just because some distant ancestor pleased the king and was gifted with a land grant, why should that mean that the Lord’s manor estate is “his”?
Why indeed, says the guy in 2016 sitting in an office building in El Pueblo De La Reina De Los Angeles De Porciuncula, the provenance of which real estate traces directly to a land grant in 1792 by the King of Spain.
Why, indeed.Report
That depends on how you set your victory conditions.
If we ever manage to find a way to live in space, among asteroids, moons, & other planets, I expect this conversation will get all sorts of interesting as such claims are made & hashed out.
ETA: Still, who owns what land is really a question of who has the right to manage and exploit land, and since those rights are enforced by the state, ultimately the “own” it all, and merely set the conditions by which they will enforce a claim on it.
If you don’t believe me, fail to pay your taxes or fees on a parcel and tell me who shows up to take back your rights to it.Report
This is the context missed by the “cheap grazing fees” talking point: the fear is that, in more and more places, grazing won’t be allowed on any terms, and the fear is amplified by a feeling that decisions that make or break livelihoods are being made at a level that renders locals voiceless.
Relatedly, there seems to be a strong feeling among supporters of the Hammonds that they were prosecuted primarily because they have resisted the expansion of federal lands and that similar fires do not normally result in prosecution. I can’t really evaluate the correctness of that argument, but I expect the same is true of most members of the lock ’em up crowd.Report
Surprisingly, it can cost a LOT to hire people who will do the work for free. (I’m talking about the management/extermination of the pot farms).Report
Or, ya know, increase the grazing fees… 🙂Report
For reference: https://en.wikipedia.org/wiki/Animal_unitReport
Yeah. Raise the price of those things!Report
Oscar, did you notice this comment, and the linky, up above?Report
@stillwater
No, I didn’t, thanks.
I was listening to something the other day about Bison ranchers and how the animals are better for the land, and produce a better meat (I certainly prefer it over regular beef), but are a challenge for ranchers because they are barely domesticated and much more difficult to manage.
Since grazing fees are set by animal…Report
Oscar: with respect, do you actually know any of the history on this issue? The ultra-short version:
BLM got all the land that no one wanted. Land that had value went to the federal agency charged with managing that resource (e.g., Forest Service, Park Service). (The wiki article on BLM conforms to my understanding.)
Whether BLM has done a terrible job depends who you ask. Enviros point out that grazing has done terrible damage, at a price grossly below market rates. Ranchers point out that no one was living on or using that land anyway.
What is not disputable, though, is that very few people actually want the land sold or even given away. The states don’t want it, ranchers can’t afford it, and both are terrified that California millionaires will buy up the land and kick off the ranchers (for an example of this, see Montana). The tax base of vast landholdings held by a non-profit for open-space purposes wouldn’t be enough to employ a single sheriff.
What the ranchers really want is a return to the old system whereby allotments could only be bid on by ranchers. (yes, for decades environmentalists were barred from bidding.) That, however, really is a huge gift of public funds to a tiny minority.Report
That jives with my understanding of the history, and I don’t have any issue with anything you’ve said (keep in mind I’m NOT defending ranchers, per se, and my view is that that style of ranching is something we should actively phase out, as it is hard on the land).
What I hear today is that some parties (governments, private interests) would like to have a conversation with the fed regarding both the management of, and access to, federally held lands. The fact that no one wanted the land in the past does not mean no one wants it now, and the federal government, in whatever manner such things can be done, should be willing to have that conversation.
What I’m hearing is that they have a hard time getting anyone to even answer the phone.Report
Which brings us full circle.
The Bundys are trying to drape themselves in the mantle of Colonial Patriots, fighting oppression by challenging the legitimacy of the claims to land.
But of course, the current distribution of land and power immensely favors them more than anyone else.
In this scenario, they are not the Colonials- they are the landed nobles enjoying the rents from land they never acquired rightfully, challenging the King who sits above them in the food chain.
If their challenge to land claims is taken seriously, it would be the Bundys themselves who would lose the most.Report
Also, while the states obviously could not afford to get all the land back at once, they could afford to start getting some of it back in manageable sections. Get a chunk, sell it or make it into a park, and start generating tax or user fee revenue from it…
Once negotiators sat down at the table, things would get… complicated. The fees for grazing cattle on state-owned public lands today are much higher than the fees the feds charge. The states and the feds charge comparable royalties for minerals extracted from the public lands, but the feds share those with the states to only a limited extent. State severance taxes would be collected if the states held the mineral rights. The states might well generate enough revenue to manage grazing and minerals.
Most proposals that get kicked around assume the federal government would retain ownership of the national parks, national monuments, and national wilderness areas, so no state costs there. One of the questions that I would certainly put on the table is the water rights associated with that. Today, the feds can take whatever water they feel they need. Very different situation if the feds have to buy water from other rights holders in dry years if they decide to keep the wilderness river flowing.
Many of the future costs associated with the federal public lands will be due to horrible past policies. The national forests are seriously sick because of decades of total fire suppression. The clean-up of old mines, where the operators were allowed to leave hideous messes behind, are going to run to tens of billions. If the costs to deal with those problems are dumped on the states, sure there’s a problem. Should the states pay for those?
Anyway, it’s complicated.Report
@michael-cain
Never said it would be simple, but that’s no excuse to not explore it.Report
I’m on your side here. After all, I’m the lunatic that thinks this is going to happen in a somewhat more extreme fashion. Regional management and funding make more sense; Montana can’t afford a fire-fighting air fleet, but can contribute to a regional fleet.Report
Yes, the folks who originally came to prominence because they utterly failed to pay their grazing fees.
Fees which are a fraction of the price of doing so on private lands, but which the Bundy’s felt paying was an unconscionable assault upon their liberty.
Which, translated into English, means the Bundy’s feel they should be able to rape the commons at will, and fish you to anyone else.Report
Gotcha. Just wanted to be sure, because AFAIK, the Hammonds had no issue with grazing fees, but were upset that their access to lands they had paid grazing fees on, and had rights to, was limited by F&G. How valid that grievance is, I am not in a position to evaluate.Report
Fish and Wildlife is about the only people who can search your house without a warrant.
http://ivn.us/2012/03/06/supreme-court-no-warrant-needed-for-ca-game-wardens-to-stop-cars/Report
It’s not just the feds they’re dealing with, not anymore.
They’ve got the trolls to contend with… and the trolls have the potential to be far more fiscally dangerous than the feds.Report
This is what really bugs me about these guys. You want to stand up and be heard, you do it on a soap box, not an ammo box. If you are pulling out the ammo box, it’s because somehow the soap box & ballot box have utterly failed, and violence is the least bad option of a set of bad options. These guys aren’t terrorists, but they aren’t peaceful protesters either. You don’t hold a peaceful protest with guns at hand.Report
Exactly.Report
Chip,
Militias are pulling out of Detroit, last I checked.
Go Wall Street?Report
As a further thought, this is why I’m not advocating calling these guys “terrorists”.
It could fit, and there would be schadenfreude at seeing them snacked by the same iron fist that’s dealt to others.
But on score Bouie is right, but even more.
America has become so addicted to the adrenaline of the authoritarian impulse that the word “terrorism” shuts down our ability to see clearly. The moment that word gets used our senses get dulled and scramble in fear and panic like sheep.
We forget that terrorism is like war itself, some a good and fitting tactic, other times an evil one.
If it sounds shocking to suggest that terror can be a righteous tool, look at the list above.
All those groups went down to defeat except one.
When the history of 20th century Ireland is written, how will the IRA and Sinn Fein be portrayed? We have a sitting Republican Congressman who openly offered them material support. Sinn Fein has elected members serving in government.
This is what I mean about how the rhetoric of terrorism blinds us. It allows us to accept the arbitrary drawing of lines between legitimate and illegitimate violence, usually by conniving self interest. The Bundy know this very well, if only intuitively. That’s why they drape themselves in the mythos of our founding “terrorism”, so as to include their violence inside the perimeter of righteous terror.
This also isn’t BSDI or moral relativism. The righteousness of a cause is in its goals as much as its tactics.
If the Bundy are defeated in the battle of public opinion, it won’t be because of their violence. It will be because the violence is in service to an unjust cause.Report
Many of the liberals who were — rightfully, in my opinion — appalled by the tactics used against Occupy protesters are gleefully calling for an armed response.
Who? Saying “If they were black, they’d all be dead by now” doesn’t mean that would be a good thing.Report
The things you miss by not being on Twitter.Report
Hell, if I get to use Twitter for what “many of the conservatives” are thinking, I could have the entire Republican party locked up under United States Code Title 18, Section 871 tomorrow.Report
Jesse Singal posits that there is an age divide between those old enough for Waco to be a memory and those not. I don’t think Jamelle Bouie was hippie-punching at straw men. I saw some of it myself. Being of the left, I suspect they’ve seen more.Report
By the way, what does “armed response” mean? I would like to see them all arrested, if that could be done peacefully, and I wouldn’t expect the cops to go in unarmed.Report
Apparently anything but responding to them like we did with the Mennonites and Quakers. (I think they’ve got much, much more justification for that tactic in this case, though, even if it does look like a bloody psychological experiment).Report
I always get a kick out of it when non-lawyers reason their way to the same principles that courts have been using for centuries. Maybe logos isn’t exactly universal, but it makes you see why somebody would think it is.Report
@don-zeko
Not sure if you realized, but I was quoting Morat20 there.Report
Oops; I did not. Is @morat20 a lawyer? If so, my comment is not going to look super hot.Report
Morat20 is a software developer, much like I am.
I don’t think he has a law degree or membership to a bar.Report
I am not. 🙂
I just think if we’re arguing over a case that’s already been to trial, we shouldn’t forget there was a trial and what the results are. ESPECIALLY if the argument is “Is what they did really X” when X was what they were convicted of.
I’m no lawyer, but I’m pretty sure if they went to court and a jury convicted them on account of “X”, then “X” was — at the very least — probably applicable. (Doubly so if, as in this case, X was the only charge the jury was sure about. IIRC, there were about 10 charges, 2 of which were arson, and those two were the only ones the jury had convicted on. They were still deliberating the rest when the Hammonds made a deal).
It’s pretty good evidence, right on the face of it, that “X” is a reasonable charge.Report
As a general principle, I (and the basic structure of appellate review) agree. Juries should generally be deferred to on questions of fact. Where I quibble is that saying “behavior X with results Y constitutes crime Z,” has us wandering into conclusions of law, where we don’t and shouldn’t defer to juries in the same way. They have the advantage of having seen the witnesses testify, but they don’t know better than anyone else, say, what recklessness or reasonable doubt are.Report
That’s a pretty good point.Report
I’m not forgetting that a jury did reach a verdict. But I’m also not forgetting that the concept of jury nullification is something judges and prosecutors work very hard to prevent juries from exercising. Coupled with laws that largely remove mens rea from consideration*, juries are often found with no choice but to convict on technical grounds, even if such a conviction does not arguably serve the interests of justice.
Question for the lawyers – are juries usually informed of the penalties of a conviction? Would the jury in this case have known that a conviction would bring a 5 year sentence? I last served on a jury well over a decade ago and I can’t recall if we were told what the penalty was if we found the defendant guilty.
*Have we gotten the question of malice here hammered out? Is intent all that really matters, or is there a requirement to show malice or willful negligence?Report
According to the Manual of Model Criminal Jury Instructions for the 8th Circuit, found here: “To act maliciously means to act with the intent that, or with willful disregard of, the likelihood that damage or injury would result”
hmm. can’t make the link work. Just google “federal jury instructions arson 844” The Eighth Circuit instructions (in Word format) and 11th Circuit (in pdf) were my top two results.Report
Thanks @francis !Report
Nope; a jury is typically not told of the potential penalties. Here’s the choice excerpt from the standardized jury instructions used here in California, instruction CALCRIM 101 which is given in virtually every criminal trial in the state : “…You must reach your verdict without any consideration of punishment.” I have more on jury nullification if you’re interested, but this is the direct answer to the question.Report
This is why I’m not sure giving too much weight to the fact that a jury found them guilty means a just result was reached. If, as I suppose, the BLM has made a habit of only levying fines and financial damages for minor burn damage to their property (that does not damage structures or injure people), then those peers on the jury, consciously or not, probably had it in their heads that the end result would simply be a big fine or a small amount of jail time.
Of course, now everybody has this new reality in their heads. It’d be interesting to see if & how local behaviors change…
ETA: I’m always interested in thoughts on jury nullificationReport
My short take on jury nullification is this.
1. There’s one school of jury nullification advocacy that says that a jury has unlimited discretion to find whatever facts it wants. Which I more or less agree with, so long as the facts are technically in dispute. So let’s say an element of the crime is “Parcel X belongs to the Federal government,” and the defendant offers not one whit of evidence regarding ownership of Parcel X and the prosecution brings in certified copies of the land patent and an expert witness who has researched the provenance of the title all the way back to the original proclamation of George IV annexing what is today Oregon into the territory of Great Britain. The jury is entitled to find the expert not credible and the certified documents unpersuasive, and thus to find that the prosecution has failed to meet its burden of proof on that element. And in so doing, the jury could return a verdict of “not guilty.”
2. However, the more prominent school of jury nullification holds that the jury is, as the representative of the community, entitled to pass judgment not just on the facts of the case but on the law itself. This is NOT true. The jury is not free to say what it thinks the law ought to be, and it is most certainly not free to say that the law is what the jury thinks the law ought to be. So all six jurors in that box could very well think, “You know, the Constitution doesn’t anywhere authorize the government to own wide swaths of land that aren’t military bases,” and conclude, with at least some semblance of logic thereafter, that the law creating the BLM is unconstitutional and therefore with some further semblance of logic that the land in question OUGHT NOT be Federal land, and with another extension of rather shaky but at least discernable reasoning conclude that the Hammonds didn’t do anything wrong and therefore shouldn’t be convicted. Nope, this kind of nullification is wrong, because by making this kind of reasoning, the jury usurps Congress. The jury is an organ of the court, not an organ of Congress or the Executive, and for that matter it is not, itself the court. So such jury nullification is anti-democratic, anti-judicial, and subversive to the notion of the rule of law.
3. It is really, really hard to distinguish between the two types of jury nullification in practice, and the muddy reasoning and rhetoric deployed by jury nullification advocates makes it all the harder to do so. You’ll frequently see motte-and-bailey type claims that initially boast of the wonder of juries interposing their common sense and community morality in the face of unjust laws, and when challenged as being both anti-democratic and anti-judicial, they’ll retreat back into the “bailey” of “but the jury is just finding disputed facts within its discretion,” and then when the anti-nullification interlocutor concedes that juries do indeed decide disputed issues of fact, proclaim victory back out in the “motte” of juror-ocracy.
Juries have very, very important jobs to do in our system of government. Legislating is not among them.Report
See, that should just be a standalone post.Report
Oh hell.
For that I’d have to do research.Report
So should this one.Report
Agreed!Report
It would be interesting to ask the jurors (if they haven’t said anything). People waving guns around make that difficult, however.Report
I dislike asking jurors to comment on decisions. It seems like a bad idea, just all around. If they volunteer it, fine — but even then, there shouldn’t be even a whiff of enticement.
I think that sort of thing, if it commonplace, would bias jurors.Report
I solicit juror opinions and discussions after every trial I do. Without fail. There is no better way available for me to get better at what I do.Report
I think that’s different. You were part of the whole thing, and it’s your job, and it’s not going to go public. I don’t think any juror, when sitting in deliberations, is going to think “I think he’s guilty, but that one lawyer will probably ask me for my reasoning later if I want to tell him and I don’t want to deal with that, so not guilty it is!”
I just don’t want jurors having to risk getting dragged into disputes outside the jury box over it.
So I’m thinking more “general public” and specifically “news”.Report
It would be interesting if they could be asked to voluntarily write down their thoughts & impressions on the process. Did a particular juror feel a just result was reached? Was the correct result reached? Do they have reservations about the result reached? etc.
Keep it anonymous.Report
And we just finished being outraged over the lack of an indictment for the Tamir Rice shooting.
“Hey, do you trust the system or not?” seems to be less and less useful as the rhetorical question that ends the discussion.Report
A fair point, @jaybird , but I think it bears pointing out that we really aren’t talking about A system but rather multiple systems. The federal system is different than the state system and California is different than the New York. And even within that, the cops go through a different system than the rest of us and rich dudes experience it differently than poor dudes and men differently than women and white guys differently than Black guys. At this point, I don’t really trust *any* of these systems but it is possible that one of them could function well while the others remain fucked.Report
Oh yeah, indeed. It’s just that I’m beginning to realize that the people in charge of these things are merely as competent at their jobs as I am, rather than being as competent at their jobs as I imagine the grownups from my youth were at their jobs.Report
Hey, the fact that we lawyers have worked them out as norms to run the system with doesn’t mean they’re always good ideas.Report
Bored lawyers are FUN lawyers!
And they’re the type to know how to draw out a nice long civil suit… and get the other side to pay for it.
Good lawyers know how to make the idiots pay for being stupid enough to get caught in the act.
Folks oughta get scared when the trolls start having lawyers on retainer.Report
I think it’s pretty easy to push that logic to far. A grand jury is not a trial, largely because it’s not an adversarial proceeding. Obviously both are capable of producing really screwy results, but I think the one where there isn’t somebody else in the room to yell “this is bullshit” deserves significantly less deference.Report
Also, it’s probably nice when your jury is representative. Being from Texas and having been through the jury duty process, it’s not exactly comforting to see an all white jury get picked to judge a black defendant. Although hey, Texas’ demographics being as they are, they’re having to season the juries with the occasional minority now.Report
You’ll REALLY get a kick out of this then:
That’s right folks! The sovereign citizens have arrived!Report
Hey this isn’t just a citizen-based judicial proceeding. It’s extra-judicial!Report
Oh for the love of…Report
You want to get really depressed? Look at the sort of sentences they envision. And then reflect on the fact that there have been a number of complaints that the Bundy’s and their relevant idiots have been following people around. Very closely. Hanging out in driveways.
You know, our armed patriot friends? Not intimidating at all, right?
Also, they’ve been digging into the federal computers of the building they’ve taken over, researching the employees.
I’m sure nothing bad will happen. It’s not like they’re waving a toy gun in a park or anything.Report
You know this is why we can’t have nice things, right?Report
Sovereign citizens are hilarious! I mean, they WERE hilarious when they were just insisting the yellow tassel on a flag means they don’t have to pay taxes and Ohio was a state.
Now they’re armed, occupying buildings, and pretending it’s 1775. I haven’t looked up the penalties this “judge” is prepared to order, but I betcha they’re pretty….200 years ago, let’s say.
When people talk about not letting the mentally ill have guns, I’m pretty sure these guys aren’t really who they’re talking about. But they probably should be. If you’ve ever seen video of one of these guys arguing in a court….
Some of them just think it’s 200 years ago, but most of them seem to have something…wrong…in their head. I’m not talking politics or ideology — I mean just listening to the guys speak in court.
The way they talk, the legal gibberish, and their whole attitude. I think Rush Limbaugh, for instance, is a blowhard oxy-addict who has probably killed off well over half his brain by now. But I don’t think he’s crazy.
But most of the SC folks come off as totally bonkers.Report
I’m glad you enjoy the show.
But they SERIOUSLY gum up the works when they show up.Report
Well, they’re armed and
derangeddangerous. So, yeah.ReportYeah, but don’t all the crazies? There was a guy shouting in the ER when I was there last week (in what sounded like Dorthraki, but was actually English. It was just that weird, crazy shouting where the emphasis is always on the wrong parts, and you get loud and quite in no pattern. Not an accent — mental illness or drugs or something).
But I got the impression that if it wasn’t Kathlu the Crazy in there, it’d have been another crazy guy shouting a different brand of crazy.
I suppose SC’s are worse, because it seems like it spreads a bit, but I think you have to be at least a bit crazy to entertain it in the first place.
I mean if you tell me I don’t have to pay taxes because of a flag in the courtroom, I’m going to laugh in your face. I don’t need to do research first. That’s because I’m at least vaguely anchored to reality, and I know darn well no stupid tassel is the bedrock reason a judge can fine me or why I have to pay a speeding ticket or the IRS.
So if it wasn’t SC crazy, maybe they’d be in there peddling a different sort of crazy that’s just as bad.
Not that I envy you dealing with it, anymore than I envied the patient security guard explaining to the ER Warlord that he needed to settle down or they’d — I don’t know what, I didn’t hear. Whatever it was worked. He spent the next two hours with a blanket over his head, glaring at people. But silently. And not trying to leave the room to shout at sick people.)Report
Ugh. Sounds terrible.
In law, the SC madness spreads from the ill-informed to the ill-informed via the same sort of “I want it to be true so it is” mechanism that legal advice that came from “my cousin Eddie’s ex-roommate’s girlfriend who worked at a law firm for six weeks back in the 1980’s said to her girlfriend within earshot of my cousin Eddie after everyone’d had a few shots of Cuervo because it was, like, Cinco de Mayo, man,” becomes a more solid and reliable statement of the law — which only by pure coincidence completely justifies everything the person in question has done — than what you read in some boring, unreliable place like the statute books.
Which is to say, I have a prejudice that the people who spout SC nonsense all want the SC stuff to be true.Report
I was tangentially involved with one who believed that citations to the UCC Article 9, Secured Transactions, was relevant to getting out of speeding tickets (?). Can’t remember exactly what the underlying issue was, but it was a long way from recording security interests in personal property.Report
See, now I’m having bad trip flashbacks. ..Report
Yeah, but surely you have to be a little unhinged to accept that.
I mean yeah, I’d REALLY love not to pay taxes. But even uninformed, stupid, 20 year old me would hear “Because Utah isn’t a state and thus incomes taxes are unconstitutional” or “Because the flag in the courtroom is yellow, it’s a long-standing conspiracy”….and just laugh.
Because I might want to believe I don’t have to pay taxes, but long-running conspiracy involving tassles or the state of Utah’s (or Ohio or whatever)’s actual statehood isn’t a reason a sane person accepts in the first place.
It’s too ridiculous.Report
Once, on a lark, I explored some of their websites.
Felt like a bad acid trip.
I just can not take them seriously. Even if by some slim chance they had a position I agreed with, how they get to that position & support it will be so divorced from any accepted understanding of history, law, or philosophy as to essentially be evidence of monkeys sitting at typewriters.
Using SC membership or sympathy as grounds for declaring someone mentally ill is probably a bad idea, but I would strongly encourage them to sit with a therapist.Report
@morat20
You’ll like this
Regarding mental illness, pay attention to the authors 4th point..Report
BTW @morat20
This discussion was much more… well, I don’t know if it was productive, but it was much more enjoyable.
ThanksReport
Beegeez anyone wanting to reproduce chunks of the federal system probably should have their marbles counted.
Last thing we need is more authoritative poser blow hards.Report