Friday, August 23, 2013

People v. Estes (Cal. App. Div. - Aug. 23, 2013)

I generally like the published opinions of the Appellate Division of the Superior Court.  Because there are so few of them, the ones that get selected to be published are often really good.  Plus they often involve lower-level offenses that are more likely to confront "regular" citizens in their day-to-day lives (e.g., traffic tickets, low-level misdemeanors, etc.).  When Superior Court judges step on the stage and publish their opinions, I'm generally psyched to read them, and rarely find myself in disagreement.

Here's proof that that's not uniformly the rule.

It's not an opinion that makes me quake in my boots personally.  It's about the appropriate punishment for a commercial fisherman who takes way too many undersized Dungeness crabs.  State law prohibits the taking (read: killing) the baby crabs; i.e., any crab under six and one quarter inches in breadth.  We want those to be thrown back so they can grow up, get bigger, reproduce, and then we'll catch them.  Makes sense.

So if you've ever seen any of what my children call "The Crab Shows" (e.g., Deadliest Catch), you'll already know that the deckhands inspect (and, if it's close, measure) the crabs once they're caught.  They throw the little ones back and keep the big ones.

Makes sense.  Stops overfishing.  Keeps the resource sustainable.  Exactly the kind of law we should pass (and enforce).

In the first part of its opinion, the Appellate Division holds that the statute -- California Fish and Game Code Section 8278(a) -- is a regulatory offense, and hence imposes strict liability.  You don't have to prove that someone was "negligent" or "deliberately" took an undersized crab.  They took it.  That's enough.

That seems right.  The reasoning in the opinion on that point seems solid.

Then we get to Estes sentence.  The statute already allows for some "leeway".  There's no liability even if you've got a lot of undersized crabs as long as they're (1) at least 5 3/4" wide, and (2) not more than one percent of the catch.  But Estes has blown through even that.  He's got nearly half a ton of undersized crabs.  Approximately 2.2% of the catch, or over double the statutory leeway.  So he's clearly guilty.

But Estes nonetheless essentially gets a nonsentence.  After a jury convicts the guy, the trial judge imposes a suspended sentence of three years of unsupervised probation.  Basically nothing.  Plus a $1000 fine.  Less than what Estes paid his attorneys to fight the thing at trial, I'm sure.  Moreover, as the Appellate Division notes in its opinion, as a regulatory offense, a conviction's no big deal.  Didn't harm Estes' reputation.  He's still out there fishing away.

But the trial judge also imposes one more consequence.  Forfeiture.  Which is expressly authorized by the statute.  Since Estes took way too many tiny crabs, the trial judge doesn't think it's right if Estes makes money on the load.  So Estes forfeits the profits for that particular trip.  Which amounts to $47,000.  Which goes to the Fish and Game Preservation Fund.

Seems reasonable, right?

Not according to the Appellate Division.  Which holds that this consequences is "grossly disproportionate" to the offense and hence violates the Eighth Amendment.

I hereby register my profound dissent.

Yes, $47,000 is a fair piece of money.  But it makes eminent sense to order forfeiture of one's ill-gotten booty in a case like this.  Yes, I admit, $47,000 represents the profits from all the crabs, not just the baby ones, which were 2.2% of the catch.  But failure to order a significant forfeiture like this would create huge incentives to violate the statute.

Just do the math.  Assume you're the captain on a crabbing boat.  Every baby crab kept increases your marginal profits.  You're already given a 1% leeway, and when you offload your crabs, (1) lots of times inspectors won't be there (or will be inattentive/subject to bribes), and (2) you've got a lot of big crabs in which to hide your tiny ones.  It's super tough for an overworked fish and game person to tell whether 1 in 50, or 1 in 100, crabs are undersized.  Especially when all they have time for is to grab dozens of crabs and measure them individually.  Plus, we know from basic statistics that you're in pretty good shape as long as the number of crabs inspected (n) is pretty low.  Even if you've got three or five percent babies, if they're at the dock and pull 100 crabs and measure 'em, you've still got a totally decent shot at getting away with it, as in a fair number of cases, they'll still only pull one baby out of the 100 even though the normal distribution is three or five.

So you're looking good -- real good -- at getting away with the crime.  And it's profitable.  Remember that every extra crab is extra profit.  The load that Estes got caught with here (even minus the babies) was sold for over $75,000.  So if you can pile on another five percent or so, you're looking at an extra four grand or so.  A load.  (Alternatively, you can catch the same load and both save fuel and go home early.  Either way, it's a win.)  You figure if you can get away with it for thirty or so loads a season, that's $100,00 extra.  Per year.

And what happens, under the Appellate Division's ruling, if you get caught?  Essentially nothing.  You plead guilty to a totally minor offense, no one cares, get sentenced to a minor fine and unsupervised probation, and (maybe) stop doing it for a while.  Big upside.  Little downside.

If that's your incentive structure, how much do you really, really try to make sure your deckhands are good with the calipers?  That they really make sure to throw the babies back.  With no excuses.

Not much, I think.  Especially if you think that the laws against undersized catches are "stupid" or that it's really hard to make a living as a crabber and "the man" doesn't care.  At a minimum, your incentive to make sure that you don't keep a fair number of babies is a lot, lot less when your monetary loss is a fine of $1,000 than when you lose $47,000 and it means your trip was for naught.

I'm no mathematician, but I'd say that the financial incentive to avoid a $1,000 fine is about 47 times less than the incentive to avoid a $47,000 forfeiture.

And what's the loss, by the way, of ordering big forfeitures in cases like this?  What kind of incentives does that create?  It assuredly creates an incentive to be super careful.  Maybe even overly careful.  So maybe some really tiny crabs -- some that are just barely over the 6 1/4" limit -- get thrown back.  On the theory that it's better to be safe than sorry.

The horror.

So I don't see the problem with ordering a fairly hefty forfeiture.  Seems like it instead makes eminent sense.  And certainly isn't so "grossly disproportionate" that it violates the Constitution.

Oh, one more thing.  Remember that the trial court only took the profits from Estes' trip.  Of the $75,000 he got from his crabs, we gave him back the actual expenses of the trip.  So the only thing he's out is his time.

Yeah.  That's constitutionally excessive.  Not.

Compare this penalty, by the way, to permissible alternative penalties that are clearly constitutional.  It'd be clearly okay to sentence Estes to six months in prison for the offense.  It's at least a misdemeanor, after all.  So the Appellate Division's holding means that it's okay to take away someone's entire liberty for a full six months, and put 'em in prison, but it's not okay to take away the fruits of someone's week or so on a ship.  An experience which may or may not be entirely fun, but is certainly a lot -- lot -- better than prison.

Doesn't make much sense.

We also might want to compare the Appellate Division's ruling here to other forfeiture cases.  The Supreme Court has held that it's okay for the government to take someone's car if someone else (i.e., their husband) drives it to pick up a hooker -- something the owner totally doesn't benefit from and would surely prevent if they could.  The government can seize your entire house if your grandson, unbeknownst to you, decides to sell some crack to an undercover cop therein.  Those are okay.  As are a lot more serious forfeitures, with much more at stake for the innocent owner.

Look, I'm sympathetic to the view that forfeiture laws are overly abused.  So my initial predisposition would not be to think that the government here was necessarily entitled to impose a $47,000 forfeiture.  And if they tried to seize the boat itself -- even though it's clearly an "instrumentality" of the crime -- you'd probably hear me complain about it.  Because losing a million bucks or so seems way too onerous.

But just losing merely the profits you obtained from that particular trip?!  Come on.  That seems an entirely reasonable consequence of taking way too many baby crabs.  One that creates wholly rational incentive effects.  And one that's certainly not "grossly disproportionate" to the offense.

So I'm with Fish and Game on this one.  And am surprised to see the result the Appellate Division reaches here.

Doesn't make sense to me.