Are accused fishermen entitled to a presumption of innocence? In a recent journal article Jon Sutinen and Dennis King note that a violation “is a violation even though it may not be prosecuted or have a resolution that results in a penalty.” In their widely-publicized analysis, they count all accusations "as actual violations.”
Ask law enforcement officers whether they thought that the people who were issued summons were guilty, regardless of whether the summons resulted in a penalty of any sort or not. What are the odds that the majority of responses would be that the recipients of the summons were guilty, regardless of the outcome? Common sense and human nature argue that it would be pretty high – that’s why we have judges, courts, trials, hearings and such.
Our system of justice is predicated on the assumption that people are innocent until proven guilty. Evidently Jon Sutinen’s (University of Rhode Island) and Dennis King’s (University of Maryland) isn’t.
In the report on their research on the New England Groundfish Fishery that they published in the journal Marine Policy in April of this year (Rational noncompliance and the liquidation of Northeast groundfish resources), Professors Sutinen and King demonstrated that the academic world they inhabit isn’t constrained by such silliness.
Examining 1,689 “probable violations” in a NMFS database, they state “33% of (the) violations reported by law enforcement resulted in one or more types of penalties.” Particularly considering the cloud of overzealous prosecution that has been hanging over the fisheries enforcement bureaucracy in the Northeast for the past year or so, to most of us it would seem reasonable to believe that those fishermen who were not penalized were in all likelihood innocent.
Not according to Sutinen and King. They write in a footnote “interviews with NOAA enforcement staff and others familiar with this database indicate that in many cases enforcement officers have probable cause to inspect for a violation and, if after inspecting they decide to report a violation, it probably is a violation even though it may not be prosecuted or have a resolution that results in a penalty.” This leads to “based on this criterion, 1,614 of the 1,689 incidents (95.6%) reported during this period probably are actual violations and, for purposes of this analysis, will be treated as actual violations.”
In Sutinen’s and King’s analysis you’re damned if you’re convicted and you’re damned if you’re not. Judge Roy Bean would have approved whole-heartedly.
And of course there’s more. They use the assumption that only a third of the fishermen who cheat are cited for fishing violations in making the determination that “by fishing illegally a midsize trawler in the NEGF fishery is estimated to increase expected earnings per trip by $5,500.” With the $1,116 cost of the average penalty assessed, they conclude that “when compared with the illegal gain, the economic incentive not to comply is $4,334 per trip.” They continue “normative factors, such as moral obligation and peer and community pressure often induce fishers to be law-abiding despite potential illegal gains,” but in the case of the New England groundfish fishermen those “normative factors” are weak because, in essence, the fishery is in such a mess and the fishermen hold management responsible for the mess it’s in. Hence, more fishermen in New England cheat.
Andrew Cohen, Special Agent-in-Charge for the National Marine Fisheries Service’s Office of Law Enforcement, was quoted in a recent article in the Boston Globe (B. MacQuarrie, Seafood auction gets ban of 10 days, 06/20/09) as estimating “that 98 percent of the US fishing fleet from the Canadian border to the Carolinas adheres to the law.” He should know. Its not news to anyone reading this that many of the thousands of fishermen that Agent Cohen is referring to aren’t satisfied with how their fisheries are being managed, a lot of them realize that they could do quite a bit better economically if they “cheated” on the rules, and their chances of getting caught don’t differ significantly from their colleagues’ in the groundfish fishery. Yet we’re to assume from Sutinen’s and King’s paper that the New England groundfish fishermen are somehow different.
So what’s the impact of this “condemned by probable cause” view of commercial fishermen? Naturally, the up-front conclusion is that the fishery management system has broken down and needs radical surgery before it can work again. Another conclusion is that an awful lot of fishermen, particularly in New England, are bad actors who look at breaking the law simply in terms of the probability that they’ll get caught and what it will cost them if they do. They’re not the victims of a management system that has been distorted beyond reasonableness by megabucks of foundation-funded interference, they’re coldly calculating “criminals” that deserve anything that the conservationist community does to them.
Being published in an academic journal would normally relegate this research to the dust bin of history, only being dredged up by other academics every once and while to be used in other such studies. Not this time. The research was supported by the Lenfest Ocean Program, which as of May of ’09 was being administered by the Pew Environment Group. As with other Pew-connected research critical of fishing and fisheries management, Professors Sutinen and King and their inescapable indictment of commercial fisherman – that given a reasonable return to compensate for the risk involved in cheating, fishermen will do it, and that their doing it in New England is a significant factor in preventing the recovery of groundfish – enjoyed an uncharacteristically wide coverage for such academic esoterica in the media.
Can this be considered anything but another step to marginalize commercial fishermen? The timing is impeccable. The study – and the media attention that was generated for it – saw the light of day only a few weeks before the New England Council was due to make its final determination on taking management of the groundfish fishery in a totally new direction, a direction, I probably don’t have to add, that while virtually untested is supported whole-heartedly by the heavily Pew-connected higher-ups at the National Oceanic and Atmospheric Administration, the National Marine Fisheries Service’s parent agency, and various and sundry ENGOs that are hell-bent on “fixing” our fisheries regardless of the costs to fishing communities.
Would yet another indictment of how the groundfish fishery is being managed, and of the fishermen who are being managed, help nudge this transformation? Borrowing a line from the movie Fargo, “you’re darn tootin.”