The Bundy mess is everything that’s wrong with the American criminal justice system


It’s surely appropriate that the first major news story of the 2016 election year is a standoff between a right-wing militia and federal law enforcement at a random game reserve. Nothing could better encapsulate the blood moon high-tide of hypocrisy, derp, and sheer jaw-dropping idiocy that is slowly engulfing our crumbling republic.

Perhaps the most notable aspect of the case is the awesome double standard on display from the criminal justice system. Two men, Dwight Hammond and his son Steve, were convicted of a minor piece of arson on federal property, got the book thrown at them, and are headed to prison. The Bundy clan — a family of notorious Nevada scofflaws who got into an armed confrontation with federal agents in 2014 over 20 years’ worth of unpaid grazing feeds — glommed onto the Hammond case (against the Hammonds’ will, mind) as an example of big government tyranny and a convenient pretext for overthrowing the United States government. Thus they seized the visitor’s center at the Malheur National Wildlife Refuge, apparently expecting a siege from federal agents. But while the Hammonds got walloped with a five-year mandatory minimum sentence, the Bundyites themselves have so far been treated with respectful deference by law enforcement.

The Hammonds have actually already been to prison for the two fires they started on federal land in 2001 and 2006. As this Oregonian investigation lays out, the Hammonds have a long history of fighting with local authorities, and were convicted of arson in 2012 on the testimony of a family member. But the judge refused to apply the mandatory minimum sentence, arguing that it was cruel and unusual under the Eighth Amendment. After the Hammonds were released, the government won an appeal arguing the lesser sentence was illegal, so they’re going back.

Now, one could argue, as Ian Millhiser does, that the Hammond sentence is basically reasonable given the Hammond’s crime and history. And there is the issue of consistency, as the then-U.S. Attorney for Oregon told The Oregonian: “If the government stands by and doesn’t pursue the statutorily mandated sentence in this case, what kind of precedent does that set?”

But let’s compare that to the government’s actions in the Bundy case. Christopher Ketcham performed an extensive investigation of the clan forHarper’s Magazine. They have refused to pay their legally mandated grazing fees (which are roughly one-tenth of the market rate, by the way) since 1993, and run up to nine times the allowed number of cattle on protected federal property, largely destroying the rangeland (and a fragile habitat for endangered species).

Elder Bundy now owes literally millions in back fees. When the Bureau of Land Management (which manages the land in question), after procrastinating for over 20 years, attempted to round up Bundy’s cattle for sale at auction, the family responded with armed insurgents, including snipers and human shields. Severely outgunned and fearing another Waco disaster, the BLM backed down.

Emboldened by the limp federal response, lesser Bundys traveled the American West inciting other right-wing lunatics to violate the law. Ryan Bundy went to Recapture Canyon (an exquisite, out-of-the-way place in Utah with a slew of Ancestral Puebloan ruins) and whipped a bunch of locals into driving their ATVs through areas closed to vehicle traffic. Local county commissioner Phil Lyman was convicted in federal court for this, and had to serve 10 days in prison plus pay restitution of $96,000, but Bundy was not charged.

Now Ryan and his brother Ammon are among the insurgents occupying federal buildings at the Malheur National Wildlife Refuge.

It turns out that the government is not actually forced to pursue the “statutorily mandated sentence” in every single case. When it comes to heavily armed right-wing fanatics with the ear of the conservative press, they can and do ignore crime after crime for years on end.

This, broadly speaking, is the problem with the criminal justice system: People without much power get slammed with wildly over-the-top sentences, while the rich or influential get gingerly deferential treatment or even just ignored.

The Bundyites justify their rebellion with a childish fetish-worship of the Constitution (or as Josh Marshall would put it, the “Unicornstitution”). But they are really criminals whose continued freedom makes a mockery of the entire American state — and is quite obviously breeding further right-wing extremism.

That is not to say that the government ought to storm in guns blazing, as they undoubtedly would if these insurgents were brown Muslims. Waco and Ruby Ridge were horrible, unnecessary disasters. But there are many ways for the government to deal with criminals aside from open, violent confrontation. One could freeze their assets, pick up their associates one by one to start building a case, and then starve them out of their ridiculous “fortress.”

But either start enforcing the law against the Bundys, or let the Hammonds loose.


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