THE FISHERIES MANAGEMENT PROBLEM THAT NO LAW CAN FIX

A few days ago, I read an article on The Fisherman’s website which reported that the Connecticut Department of Energy and Environmental Protection is supporting legislation that would allow striped bass poachers to face less serious charges than they do today.

While that sounds like a bad idea on its face, it may ultimately be a good thing, due to a pernicious problem that plagues fisheries enforcement not only in Connecticut, but here in New York and elsewhere along the coast.

Currently, any violation of Connecticut’s striped bass laws constitutes a misdemeanor.  That sets striped bass poaching apart from poaching any other marine species, where penalties begin with infractions that can be addressed with a ticket similar to a traffic ticket.  Penalties for infractions are less than those that can be levied for misdemeanor violations, and the judicial process initiated when a ticket is issued is much simpler than the process initiated by a misdemeanor summons.

I practiced law in Connecticut many years ago..  While some of the details have probably changed since then, I suspect that the basics of criminal law there remain the same.

When a ticket is issued for an infraction, the fine for such infraction is noted on the ticket, and the accused can dispose of the matter by merely mailing in a check for such fine and any associated fees before a specified answer date.  Or, if the accused believes that the ticket was wrongfully issued, such accused may mail in a “not guilty” plea, and then have the matter decided in a criminal court.

However, while infractions are legal offenses, and guilt is decided in a criminal court, infractions are not considered crimes under Connecticut law.  As a result, the accused is not entitled to a jury trial, and any conviction need not be mentioned if the violator is ever required to disclose whether he or she has ever been accused or convicted of committing a crime.

Misdemeanors are different.  They are considered crimes, and there is no mail-in option.  

Instead, if a person is issued a misdemeanor summons, that person must appear (usually with an attorney) at the criminal court.  The accused, or their attorney, will usually speak with an assistant state’s attorney to try to reach a quick resolution prior to appearing before a judge.  Often, those talks result in some sort of plea bargain.  If they do not, the matter is set for trial.  The accused has the right to a trial by jury; if convicted, the fine (and in theory, if not in reality, prison sentence) is set by a judge.

Based just on those differences, it’s easy to believe that by deeming striped bass poaching a misdemeanor, Connecticut is giving the fish real and meaningful protection.  And there’s no reason to believe that, when it initially passed the relevant law, the Connecticut legislature didn't think that it was doing just that.

Unfortunately, good intentions don’t always translate into good results in the real world.

In the real world, state’s attorneys—the folks colloquially called “prosecutors” or “DAs”—and judges often don’t care very much about striped bass or any other fish.  They care about caseloads and clogged court dockets quite a bit more.

As a result, Connecticut’s strong striped bass laws actually ended up giving the bass less protection, not more, as state’s attorneys, which have very broad discretion over the matters they will pursue, usually opted not to prosecute striped bass-related misdemeanors.  Thus, poachers know that they were very unlikely to pay any meaningful penalty even if they get caught.

Connecticut fisheries regulators  hope that, by downgrading at least some striped bass offences to infractions (to the best of my knowledge, the bill has not been introduced yet, so it’s possible that more serious striped bass offenses could remain misdemeanors), more offenders might actually have to pay fines for poaching striped bass.  If that is the case, reducing the level of the offense to an infraction might well create greater deterrent effect than does its current status as a misdemeanor. 

Yet, while that may improve the situation somewhat, it doesn’t solve the underlying problem:  The tendency of judges and prosecuting attorneys to downplay the seriousness of fisheries offenses, and allowing poachers to escape with a mere slap on the wrist—if they face any penalty at all.  Currently, poachers are emboldened, and those who illegally commercialize fisheries resources can feel confident that they either will not be fined or, if by chance they are, such fines will be little more than another necessary and affordable cost of doing illicit business.

It’s not just a Connecticut problem.

Here in New York, fisheries offenses are often heard in local town and village “justice courts” that have jurisdiction over violations (like “infractions” in Connecticut, New York "violations" do not constitute crimes) and misdemeanors.  The justices who provide over criminal trials in such courts elected by local residents, are often not lawyers, and do not even need to have a legal degree.  

In that sort of environment, poachers are typically members, often respected members, of the local community, and enforcement agents can work long and hard to make a good case, only to see it dismissed on questionable grounds by a justice sympathetic to the poacher. 

Even in jurisdictions that have more stringent requirements for trial judges, fisheries cases don’t get the attention, and fisheries violators don’t receive the penalties, that they deserve.  Urban judges become jaded over time, presiding over a seemingly endless parade of cases involving robbery, rape, burglary, drugs and assault; they don’t see fisheries offenses rising to the same level of evil, and are quick to dismiss them or, at most, impose trivial penalties.

People often say that laws against poaching need to be tougher, but tough laws do no good if prosecuting attorneys don’t prosecute violations, and judges refuse to impose adequate penalties when poachers are convicted.

That’s a serious problem, and one that no law can really fix.

One answer, which might provide some relief, is to place more reliance on civil remedies, rather than criminal penalties.  However, measures such as license suspensions will have little impact on individual anglers, who can just keep on fishing without a license if they know that courts won’t impose meaningful penalties if they get caught doing so.  

Suspensions of commercial licenses, or the licenses of for-hire vessels caught clearly violating the law (e.g., illegally fishing for striped bass in federal waters, or taking customers out on “sushi cruises,” where undersized summer flounder are caught and eaten on board) would be more effective, but would only address a lesser part of the poaching problem.

Another possiblity is to supplement poaching fines with restitution payments intended to address the damage that poachers do to public resources.  While such restitution payments are most often seen for hunting violations, they can apply to fish poachers, too.  Texas advises that

“In addition to the criminal penalty for hunting and fishing violations, the department will seek the civil recover value for the loss or damage to wildlife resources…Hunting or fishing after failing or refusing to pay civil restitution is a Class A misdemeanor punishable by a $500-$4,000 fine, punishment in jail (not to exceed one year, or both.”

That’s a start.  It’s still not perfect, but it’s a start.

And we have to start doing something.  

Effectively addressing the poaching issue is going to take a change in attitude, not among anglers, who widely condemn such actions, nor among legislators, who try to give enforcement personnel the laws that they need to protect public marine resources.

The change must come among prosecuting attorneys, who must be willing to take poachers to trial, if necessary, to see that justice is done.  And it has to come among trial judges, who must treat fisheries crimes as harshly as they do other offenses.

That will be a hard thing to achieve.  But uness we achieve it, the best laws, the best enforcement people, and the best intentions won't get the job done.