Proud father moment here; following graduation from Emory University with a 4.0, my daughter Samantha will attend NYU Law School this fall. I’ll be dropping her a hint or two about future “pro bono” work on behalf of recreational fishermen (me in particular!) With ever-changing limits and regulations, every angler could probably use a lawyer on retainer.
And then there are the most egregious violators, like the poachers on the Hudson issued a total of 67 summonses for undersize and over the limit stripers with potential fines amounting to over $15,000. You’ve no doubt seen the social media posts calling for stricter punishment.
“Confiscate their tackle and vehicles.”
“Should be $1,000 per fish undersized, or in excess.”
“They should start putting them in jail for as many days as the number of illegal fish that they keep.”
“Maybe a little street justice for those individuals will correct the problem!”
The social media outrage got me thinking of crime and punishment, specifically the 8th Amendment in the U.S. Constitution that states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” It prompted me to seek professional assistance through Andrew Chambarry, a Woodbridge attorney ever active on behalf of beach goers in the highly publicized beach access fights in Monmouth County in recent years. It didn’t take long for Chambarry to search fisheries legal records going back 122 years to find an example of a poacher in Maine fined $5 for every one of 36 undersized lobsters.
In Maine vs. Lubee of 1899, the court determined “The severity of a penalty which the legislature may properly impose depends in a large part upon the object sought to be accomplished by its imposition, and the courts have given wide latitude to the discretion and judgment of the legislature to determine the penalty felt necessary to accomplish that purpose.” In upholding the penalty, the court found importance of the public interest must be considered when looking at the excessiveness of the penalty.
“If you calculate for inflation, $5 fine for one undersized lobster would be approximately $159 in today’s money,” Chambarry said explaining how $5 was a pretty big fine at the time. “Similar to the reasoning in that case, I think the New Jersey legislature would have wide discretion in setting fines based on guidance from the NJDEP Division of Fish & Wildlife (NJDEP F&W),” he added.
“They could be amended and fines increased,” he said of the current Fish & Game Code, adding “The public interest in maintaining a preserving a healthy fishery is very high.” So what exactly would be so unreasonable as to make a fine or penalty cruel and unusual? Chambarry pointed out existing case law on that issue, including a 1989 judgment in South Florida which deemed the forfeiture of a $55,000 boat “rationally related to injury caused to the government by fish and game violations.”
“What would be so unreasonable for a fine/penalty to be cruel and unusual when it comes to NJDEP F&W? I am not sure. It would have to be something so unrelated to the illegal act,” Chambarry asked and answered. In other words, perhaps forfeiture of property not used in the commission of an illegal act is off-limits; certainly can’t take someone’s house, but maybe the car if the undersized bass were in the trunk.
Or how about a fine so ridiculously high that a reasonable person might consider it excessive? While striped bass violations might seem especially heinous to you and me, what about a judge in a court already backlogged with larceny and assault cases?
I did speak to Samantha about it, and on the advice on my attorney I’ve ruled out personal “street justice” at this time.