Yakima Herald Editorial Board: Let LEOs, prosecutors enforce fish & wildlife law

[bigtex]

This editorial is in reference to a recently published article.

Let officers, prosecutors enforce fish, wildlife laws

One of the basic precepts of our legal system is that those who are caught breaking the law should face the consequences. But for the past two years, individuals written up for fish and wildlife violations largely have gotten off with little or no penalty.

Call it a case of theory trumping reality.

Until two years ago, those issued a citation by a state Department of Fish and Wildlife officer could have opted for a practice called bail forfeiture. That means offenders cited for violations like having a loaded rifle in a vehicle would receive a $271 citation, mail a check to cover the fine and thus avoided the court system. About two-thirds of defendants in wildlife criminal cases did just that.

But in July 2012, the state Supreme Court changed the rules on bail forfeiture to remove it as an option in some criminal cases, including fish and wildlife citations. The court’s reasoning was to guarantee due process, but it did just the opposite. County prosecutors suddenly encountered a flood of cases that once were handled with a fine out of court. Heavy on caseloads and light on money and staff, local prosecutors largely have decided not to prosecute.

In those intervening two years, 194 of 302 wildlife-related criminal misdemeanor cases have been dropped in Yakima County, with most of the remaining defendants agreeing to conditions like staying out of trouble for a year in return for a reduced fine or having a case dropped. This is the case not only in Yakima County, but across the state.

The only people happy about it are the defendants who escape penalty. Fish and Wildlife officers, who face potential danger with each citation, don’t like to see their efforts go for naught, as much as any other law enforcement officer. Prosecutors are frustrated, too, but with a public clamoring for action against violent and property crime, fish and wildlife enforcement takes a low priority.

It’s obvious after two years that the Supreme Court’s change has not brought about its intent to assure due process; if anything, the opposite has occurred. The change on bail forfeiture — an unfunded mandate, really — came from the state level, and a solution lies with the Legislature. That body either should restore bail forfeiture as an option for fish and wildlife cases or provide additional funding to local jurisdictions so they can properly prosecute offenders.

As it stands now, individuals who break the law know they can get away with it, and everybody else can only watch and fret. All of this erodes respect for our system across the board; if we cannot or refuse to enforce a law, then why have it to begin with? In the meantime, Fish and Wildlife officers and prosecutors are unnecessarily limited in doing their job. This needs to change.

• Members of the Yakima Herald-Republic editorial board are Sharon J. Prill, Bob Crider, Frank Purdy and Karen Troianello.

http://www.yakimaherald.com/opinion/editorials/2395585-8/let-officers-prosecutors-enforce-fish-wildlife-laws

[bigtex]

There's basically two ways that bail forfeitures (fines) for these criminal offenses can be brought back

1- The WA Supreme Court basically removes the current rule they adopted and took effect in 2012. So this would essentially mean they would have to fess up to a mistake.

2- The WA legislature specifically mandates that bail forfeitures must be allowed for fish and wildlife offenses.

Prior to 2012 only natural resource crimes could be adjudicated via a bail forfeiture. These offenses included fish and wildlife, boating, fire/forest protection, DNR land use regs, and State Parks land use regs. Outside of these natural resource offenses all crimes required a mandatory court date, similar to how these offenses now require a court date.

[timberfaller]

I really don't know about this issue, I've seen both sides of the argument.

People should want to go before a judge in what I've seen.

There are bad LEO's believe it or not!(something about "brotherhood") Keeps them in employment.   

[Fl0und3rz]

I find the title incongruent with the substance of the post.   It sounds like the WA Supreme Court ensured that the LEO and prosecutors WERE enforcing fish & wildlife law, in keeping with another of the "basic precepts of our legal system," due process, and not just using the system as a money making enterprise.

Like it or not, as the mountain of laws and regulations that restrict behavior grows, the more money will be required to enforce that mountain of laws.  The result alluded to in the editorial is the practical application of that general rule.  I don't see a problem with expecting that the state expend the financial resources necessary to enforce laws/regulations it sees fit to pass. 

If there is a shortage of funding for enforcement, perhaps the answer lies not in returning to a system where an accused pays the fine as the least cost option (which, I suspect, is the desired end-result), regardless of guilt or innocence.   I'd suggest a reevaluation of priorities in the expenditure of WDFW revenues from licenses and fees directed to enforcement expenditures, if this is truly a problem that can be be agreed should be addressed with scarce financial resources.

Anyone know or know how to determine what percentage of WDFW license and fee revenues actually goes to enforcement (including boots on the ground and pencil pushers)?

[bigtex]

I really don't know about this issue, I've seen both sides of the argument.

People should want to go before a judge in what I've seen.

There are bad LEO's believe it or not!(something about "brotherhood") Keeps them in employment.

People can always go before a judge. Basically pre-2012 it was the offender's option to go before a judge. Now you MUST go before a judge, and your initial appearance may be 2 years after the offense.

Why should someone who admits their guilt and just wants to get on with life have to wait for a mandatory court date when they are willing to pay a fine? And possibly wait up to 1 or 2 years depening on the classification of the offense.

[Fl0und3rz]

Are these criminal offenses or civil infractions we are talking about?

[pianoman9701]

It sounds to me like regardless of what the legislature does, the state Supreme Court has already ruled that it's unconstitutional. You can't pass an unconstitutional law. You can't even pass one as an initiative. That'd be like saying we should have the legislature vote on slavery. If it passes, we can have slaves again. So, there are two roads that could lead to restoring this. Have the state Supreme Court reverse its decision or have a higher court throw it out.

[Fl0und3rz]

People can always go before a judge. Basically pre-2012 it was the offender's option to go before a judge. Now you MUST go before a judge, and your initial appearance may be 2 years after the offense.

Why should someone who admits their guilt and just wants to get on with life have to wait for a mandatory court date when they are willing to pay a fine? And possibly wait up to 1 or 2 years depening on the classification of the offense.

After further considering my position, here is what bothers me about the system of optional due process (the pre-2012 system).  It creates perverse incentives for sloppy police and prosecutor work. 

For example, consider the case of a marginal citation/summons being issued (e.g., one that would objectively lose at court) in the system of optional due process (the pre-2012 system).  Also consider that the associated fines, or bail forfeiture, is set at an amount such that the cost of taking time off from work, preparing one's case, traveling to court, attorney fees, etc. far exceed any amount of the associated fines, while carrying with it the risk of being found guilty and having to pay the associated fines and costs.  By foisting all these costs on the objectively innocent person, such a system, perversely, can make it far more expensive and financially risky to proclaim one's innocence, than it does for the objectively guilty to own up to their crime/offense and pay the nominal fine. 

See the problem?

Meanwhile, the prosecutor can rest at ease, because the objectively innocent person's due process rights have not been violated (much), because they can simply pay the nominal fine (bail forfeiture) and avoid the hassle and extra expense associated with proclaiming innocence?  Is there a problem with having the prosecutor evaluate police work (cases), otherwise known as his job, to determine if the cases are sufficient to risk scarce financial resources?

Any associated sloppy police work also would go unquestioned in this instance, as there is no feedback mechanism (checks and balances, if you will) from the courts (one coequal branch of government) to the executive, the police (another coequal branch of government).  I, for one, welcome a system that is designed to improve the quality of police work and the professionals tasked with such a job.

So I reiterate:

If there is a shortage of funding for enforcement, perhaps the answer lies not in returning to a system where an accused pays the fine as the least cost option (which, I suspect, is the desired end-result), regardless of guilt or innocence.   I'd suggest a reevaluation of priorities in the expenditure of WDFW revenues from licenses and fees directed to enforcement expenditures, if this is truly a problem that can be be agreed should be addressed with scarce financial resources.

[Special T]

What this tells me is that the state is NOT really interested in catching the "profesional criminal". It appears to be concernted with "Appearance" of control and enforcing laws.

There seems to be a disconnect withthe logic used by the state in MANY of its enforcement goals.
Assumptions
1 if you enforce laws that cover everyone and are minor it gives the appearance that Law enforcement  has tight control over what is going on... Preventing people from breaking "bigger" laws/rules...
2 A large portion of the problems are caused by a much smaller number of people. This mandatory appearance requirement seems to be an attempt to put these repeat offenders in the court room.
3 It would appear that the "old" system did not reslve the problems with repeat offenders and the "new" system just overloaded it more.

It appears to me that normal honest hardworking people are the ones getting the shaft on this. We are getting clipped on some minor infraction and are paying the price yet the "professionals" like those described in "Opperation Cody" or the jackwagons netting fish in some of the lakes in E wa require too much Resources to deal with. We are the low hanging fruit that makes $, numbers and gives the appearance of solving an underlying problem.

[bigtex]

Are these criminal offenses or civil infractions we are talking about?

The article is talking about criminal offenses (misdemeanors and gross misdemeanors.) Prior to 2012 in WA only natural resource criminal offenses could be adjudicated with a bail forfeiture, all other crimes needed a required court date. So for example in 2011 if a WDFW Officer contacted a 19 year old kid drinking a beer and fishing without a license, he could write the kid a $109 criminal citation for the fishing violation, but the kid would have a mandatory court appearance for the underage drinking.

The 2012 change made all criminal offenses mandatory court dates.

[bigtex]

3 It would appear that the "old" system did not reslve the problems with repeat offenders and the "new" system just overloaded it more.

Here's the reality of the "old" vs "new." For time sakes let's just say it's a guy who doesn't own a fishing license.

In 2011 you contact him today fishing without a license and give him a $109 ticket, catch him tomorrow doing the same thing and another $109 ticket, catch him two days from now $109 ticket. Now at anytime the officer could've arrested him and taken him to jail and at that time the judge could have his way.

In 2014 you contact him today fishing without a license and tell him you will forward charges to the prosecutor and he may have a court date within the next year, catch him tomorrow doing the same thing and tell him you will forward charges to the prosecutor and he may have a court date within the next year, catch him two days from now and tell him you will forward charges to the prosecutor and he may have a court date within the next year. Now at anytime the officer could've arrested him and taken him to jail and at that time the judge could have his way.

Now lets say in 2011 the guy decided to pay his three tickets, at that time WDFW would suspend his fishing priviliges. In 2014 WDFW would have to wait for all 3 cases to close, and as you read in the article, most WDFW cases now are not ending in a conviction but rather a plea deal where if you are a good boy for 6 months/1 year the case goes a way and thus you are not convicted.

So which system is actually working???

[Special T]

Well the older system worked "better", but not good enough which is why we got this new system. Didnt anybody ask LEO's & prosecuters what would work better? Or was this just another cast of feel good legislation?

[bigtex]

Well the older system worked "better", but not good enough which is why we got this new system. Didnt anybody ask LEO's & prosecuters what would work better? Or was this just another cast of feel good legislation?

It wasn't legislation, it was the WA Supreme Court decision. Basically courts can enact their own rules. For example, in some courts if you fight a speeding ticket there will be a prosecutor there, in many there won't. Well the WA Supreme Court sets rules for all courts in the state to follow. For basically all of eternity they had a rule stating natural resource criminal offenses could be adjudicated via paying a fine and not going to court. They then decided that everyone should go to court and basically changed their own rule. As far as I know it wasn't open to public comment but rather simply their choice. About the only good thing the Supreme Court did do was give the agencies (WDFW, DNR, Parks) about 2 years notice to the change. This allowed WDFW to ask the legislature to change some offenses from crimes to infractions.

As was mentioned in another article, even a lawyer (not a prosecutor) said he told the Supreme Court NOT to change their rules. But it sounds like once the decision was made, it was made.

The only thing that would change the current situation is either the Supreme Court changing the rule again, which would essentially mean they screwed up. Or the legislature basically enacting a law demanding/ordering the court to enact a process which would allow bail forfeitures for natural resource crimes.

[pianoman9701]

The job of the WA Supreme Court is to rule on the Constitutionality of state laws and legislation. The court has no capacity to enact their own rules, only to rule on existing laws and regulations. This is the same for the SCOTUS on the federal level.

[bigtex]

The job of the WA Supreme Court is to rule on the Constitutionality of state laws and legislation. The court has no capacity to enact their own rules, only to rule on existing laws and regulations. This is the same for the SCOTUS on the federal level.

Explain to me the following website then: http://www.courts.wa.gov/court_rules/

It was those rules that were changed which created the situation we are now in.

[pianoman9701]

The job of the WA Supreme Court is to rule on the Constitutionality of state laws and legislation. The court has no capacity to enact their own rules, only to rule on existing laws and regulations. This is the same for the SCOTUS on the federal level.

Explain to me the following website then: http://www.courts.wa.gov/court_rules/

It was those rules that were changed which created the situation we are now in.

The rules that govern the courts were not written by the courts. They are maintained by the courts. They were written by the legislature or other party and passed by the legislature after being written by committee, or ruled on by the court. The Supreme court could however rule that those rules which govern the courts are unconstitutional, but they couldn't write new rules. As far as the bail forfeiture law is concerned, the law that was on the books was ruled unconstitutional by the state supreme court. They didn't write a new rule. They threw the old one out.

I revised this slightly

[pianoman9701]

It'd be nice if a constitutional lawyer jumped in on this one! 

[Fl0und3rz]

The Supreme Court does in fact enact rules for the administration of the courts. I don't know if this particular rule regarding bail forfeiture was a result of this rulemaking process, or whether it was a result of a particular case adjudicated before them.

 However, due process is to process, & I stand by my analysis. The current role provides a better check and balance on sloppy police and prosecutors work.

[pianoman9701]

OK, they may make rules which govern how the courts operate, but they don't make laws. They only rule on them. The only thing that the state Supreme Court did that "created that situation that we are now in", was rule that the bail forfeiture law was unconstitutional. It wasn't the creation of a rule. It was a constitutionality ruling.

[bigtex]

The only thing that the state Supreme Court did that "created that situation that we are now in", was rule that the bail forfeiture law was unconstitutional. It wasn't the creation of a rule. It was a constitutionality ruling.

That is incorrect. There was no law (RCW) that said bail forfeitures were legal/allowed and the Supreme Court overruled, it was a Supreme Court rule that said so. If you don't believe me then call up WDFW or the Supreme Court and ask them. Otherwise, if they ruled bail forfeitures were unconstitutional then why did they continue to allow the practice for 2 years? Wouldn't they have ruled their unconstitutional and as of that day no more bail forfeitures?

Furthermore, here was the proposed rule which was drafted in 2010 and went into effect in 2012: http://www.courts.wa.gov/court_rules/?fa=court_rules.proposedRuleDisplay&ruleId=204

In addition if you read the comments that were received for this rule on http://www.courts.wa.gov/court_rules/?fa=court_rules.commentDisplay&ruleId=204 you will see that ALL 7 comments received from individuals (all lawyers and or prosecutors) were OPPOSED to this change. The other comment was from an organization basically saying what the agencies and courts needed to do to prepare for this change.

[bigtex]

"Good honest people who have made a single mistake could have their lives ruined by this rule if bail forfeiture was not an option"

--Kevin P Donnelly
Attorney at Law

http://www.courts.wa.gov/court_Rules/proposed/2009Nov/CrRLJ3.2/Kevin%20Donnelly.pdf

Interesting comment