Criminal Justice system

[Crafty_Dog]

Woof All:

We have a threads for Self-defense law, LEO issues, and Corrections/Prison issues, but I am thinking that we may have need of a thread dedicated to the unique issues pertaining to our criminal justice legal system.

Crafty Dog

[Shdwdncr]

Is your intent to discuss case law as it pertains to the criminal justice legal system?

S.

[Crafty_Dog]

It might be (but note we already do have a Self Defense Law thread)

Actually I opened this thread today because it seemed like GM, who posts often over on the P&R thread and sometimes on this forum and our SCH forum as well, had something that needed its own thread.  I put it here in Martial Arts with the idea that as those dedicated to being Protectors, we should have a place to further our understanding of how our legal system works.

For example, GM's idea (maybe he will make it tomorrow) concerned how our criminal justice system is increasingly adversely affected by the bursting of the Government Finance bubble.  All the legal theory is the world is all nice and good, but we also need to know what happens when there isn't enough money for the DA to take on all deserving matters.

As is always the case, the concept of the thread will be fairly elastic 

[G M]

I can say that I'm seeing cracks developing in the system due to budget cuts. It's not just the law enforcement agencies that are underfunded/understaffed, it's DA's offices and the courts. Police can make lots of arrests, but without the DA to prosecute and courts to hold the trials, then the wheels really start coming off.

[G M]

http://www.azcentral.com/news/articles/2009/03/22/20090322courtbudget0322.html

Budget cuts pinch court functions
From file access to speed of trials, impacts are big
by Michael Kiefer - Mar. 22, 2009 12:00 AM
The Arizona Republic

 .
Like most government agencies, state and county courts are facing massive budget cuts.

The impact will be great, affecting everything from how the public accesses information to the speed of civil trials.

Earlier this year, the Arizona Legislature cut $11 million from the state court and probation budgets for the remainder of this fiscal year, which ends June 30. Cuts to the 2010 budget may be more severe.

[G M]

http://www.usatoday.com/news/nation/2010-03-31-court-cuts_N.htm

http://www.npr.org/templates/story/story.php?storyId=89140782

[Crafty_Dog]

Interesting philosophical questions are presented when a wronged citizen cannot seek justice via the courts.

[JDN]

Interesting philosophical questions are presented when a wronged citizen cannot seek justice via the courts.

I don't understand.  While layoffs will and are causing delays, I have seen no indication that "a wronged citizen cannot seek justice via the courts."

[Crafty_Dog]

The idea is that ever-growing categories of criminal wrong doing will not be pursued by the DA due to lack of resources, case backlogs, etc.

[JDN]

The idea is that ever-growing categories of criminal wrong doing will not be pursued by the DA due to lack of resources, case backlogs, etc.

Perhaps, but then historically the great majority of criminal cases are plea bargained anyway.

Still, my point/clarification is that "a "wronged citizen" can still seek justice via the courts".  However, the process may be slower.

[G M]

Normal is overwhelmed, there is no "surge capacity" in the system and now things are starting to fall apart. Things that would have been investigated and prosecuted not long ago aren't now.

[G M]

http://www.floridabar.org/DIVCOM/JN/JNNews01.nsf/8c9f13012b96736985256aa900624829/e8d46469fcaf33768525749c004963c0?OpenDocument

• Recent budget cuts — which averaged about 10 percent from the 2007-08 budget to the 2008-09 budget — combined with the intent of the state to withhold an additional 4 percent from the current budget, means many agencies won’t have enough money to meet all of their core functions. “We lost all fat six to 10 years ago,” said Mark Zadra, assistant commissioner for the Florida Department of Law Enforcement, expressing a common sentiment around the meeting table. “Then they cut connective tissue. Now they’re lopping off arms and legs.” Judges and representatives from state attorneys and public defenders said they won’t have enough money to try all the cases on their dockets, raising a public safety issue.

• The budget problems are complex and interrelated. For example, just giving one entity more money might not necessarily help. Having more judges and court staff won’t help with rising criminal caseloads if there aren’t more assistant state attorneys and assistant public defenders to staff the courtrooms, participants said. Some effects are even more interrelated. Participants noted a push by counties to have criminal defendants sentenced to a year and a day for relatively minor offenses, instead of a year. The extra day means they are sent to state prison instead of the county jail, which relieves local jail overcrowding. But it is also helping fuel an explosion in the state prison population, which is expected to grow from 98,000 inmates to around 128,000 in the next seven years. As the state scrambles to build more prisons, it has less money for public defenders and state attorneys and for the courts. That in turn slows down the handling of criminal cases, which leads to a higher population in county jails as defendants await their day in court.

• Some budget cuts can cost more money than they save. Coxe noted that reducing the number of prosecutors and public defenders can lead to an expensive increase in county jail populations. Others said the courts may struggle to hear all traffic court cases, which could lose revenues for both the state and courts, and that prisons are losing money for education and rehabilitation programs, which could lead to high recidivism rates.

[G M]

http://www.time.com/time/nation/article/0,8599,1973909,00.html

And Justice for Some: L.A.'s Shrinking Court System
By Kevin O'Leary / Los Angeles Sunday, Mar. 21, 2010   

Caught in the cross-hairs of California's state budget crisis, the Los Angeles Superior Court — the largest trial court system in the nation — this week laid off 329 employees and closed 16 courtrooms. Facing an unprecedented $79 million shortfall, Presiding Judge Charles W. McCoy said that the courts will lay-off an additional 500 workers and shutter up to a total of 50 courtrooms come September. Announcing the cutbacks in a courtroom closed months ago to save money, McCoy said, "Today is a sad day for justice in Los Angeles." With attrition, McCoy expects the 5,400-employee court system to lose approximately 1,000 employees, a 20% reduction.

The 16 closed courtrooms handled criminal, family law, civil law along with complex litigation and small claims case loads. Similar cuts are taking place in courts across the state. McCoy says the 100,000 Angelenos who use the courts each day can expect growing case backlogs, longer lines and delays in processing judgments. Among those losing their jobs: clerks, court reporters and supervisors. Judge Marjorie Steinberg says her family law departments are losing mental health professionals who help parents negotiate their disputes before they go to court: "You can imagine how tough that is on a family, and on the children, whose parents are fighting."

[JDN]

Budget cuts are affecting L.A. County Sheriff's Department

http://www.latimes.com/news/local/la-me-no-fingerprints-20100611,0,3363106.story

[bigdog]

This is a great thread!  I do hope that all the budget cuts won't impact giving the members of the juries top dollar!!!

[stilljames]

I love intra-departmental rivalries that reveal themselves at budget time as well as people's lack of foresight.  All of the budget comes out of the same tax pool, more or less.  There is only so much of it.  But those tricks that shift the burden to the state or to the jail or anything else that make X department's budget work for the current FY only cut into the budget for the next  year.  Why?  they actually cost more.  But they cost more on other people's tab.

Little things like it costing a lot more to house an inmate at a State facility because of regulations, transport, etc.  And it costs more to keep 5 people in jail than to pay another Asst DA's salary.  Just like it costs us average citizens a lot more to buy things with a credit card than to save up for 6 months - something that I can be just as guilty of doing, too.  Failure to plan ahead with a thought to interactions gets us all in trouble.

One of those lovely things.  People want tougher crack downs on crime but do not want to pay more taxes to get them.  Politicians promise and give the voters tougher laws but not the taxes.  So, there are more crimes on the books with longer sentences.  And directives to arrest people passed on to police chiefs and commissioners and sheriffs who want to keep their own jobs.  People get arrested.  And, innocent or guilty, it costs more money to all parties involved.

Which brings up one of my pet peeves.  I've been involved in the criminal justice system as a defendant for something I did not do.  There's this trend for people to say: Arrest everybody and everything, just in case.  If a person is innocent, the courts will work that out.  It sounds reasonable.  Except that it is days and week of someone's time that they  could do other things with.  Like work to pay their  rent. *laugh* And the defendant does not get bail bondsman's fees or attorney fees  back when he is found innocent.  So a too-wide net costs an innocent person 5000 or 10000 dollars on a just-in-case arrest.  But that's his or her money, so it does not affect the rest of us.  Until it is our turn. 

Mind you, there is a lesson to be learned:  Do not hang out with or associate with or live near stupid people if we can help it.  So, where does one find a community full of smart, forward thinking, honest people?  Any ideas? *end tongue in cheek mode*

Maybe one thing that will come of a bad budget, though I feel that I hope in vain, is perhaps a loosening of what are social crimes.  ie, simple possession of light drugs, prostitution, gambling, vices.  Things that are more a function of social trouble and best solved by community and health systems rather than criminality.  As well as generally cheaper to handle that way.

[Crafty_Dog]

Here in CA there is a good chance that an initiative legalizing pot will pass.

[stilljames]

That's rather nice. *grin*  I don't even use the stuff.  I just feel that it is an outdated set of laws proposed at the end of prohibition by people who realized they were about to be out of a job.  And I think that the DAs, LEOs and the rest of us have far more important things to concern ourselves with.

[Crafty_Dog]

Exactly so.

BTW, until your comment I had never put the 2 and 2 together to realize that the 1936 date for the criminalization of pot roughly coincided with the end of Prohibition.  Anyone have the exact date for the end of Prohibition?

[stilljames]

I first heard it while listening to an Alan Watts lecture recording.  And then followed up on it a bit but not in a major way.   Prohibition ended December 5, 1933 but everyone knew it was coming well before that. Various anti-narcotic acts  came along as prohibition repeal momentum was building. (wikipedia has a good summary.       )     

http://en.wikipedia.org/wiki/Legal_history_of_cannabis_in_the_United_States

[G M]

http://www.lvrj.com/news/nlv-judge--some-cases-not-being-prosecuted-102211049.html

NLV judge: Some cases not being prosecuted

By DOUG MCMURDO
LAS VEGAS REVIEW-JOURNAL

If her killer had been kept in jail, Tamequa Williams would be alive today, the judge who handled the case says, and he would have been, had the county cared enough to prosecute.

[stilljames]

It just so happened that my brother and I were discussing the criminal justice last night.

One of the conclusions that we came to is that a major problem with our system is that it is a half-and-half system that does the worst of both worlds.  There's the rehabilitation by hammer system, aka France, where you fit into the mold or you die.  And there's  the complete rehabilitation system that a couple of other European nations use (Finland might be one).  In those, most criminals save the most horrible ones, are essentially sentenced to a prison version of a military college.

Both styles work better than what we do in the US.  I happen to be more for the rehabilitative systems.  My preference is to not be robbed or attacked rather than to punish the guilty after the fact.  It's crazy but when I ask people the question:  Would you rather not be attacked or would you rather punish the guilty, 2/3rds of the people I ask tell me that they'd rather punish the guilty.

Of course another think that our overly sheltered US Citizens really need to accept is that bad things happen.  We can't stop it all. That's a whole different issue.

There is a very small percentage of the population that are essentially broken when compared to the rest of us.  As I understand it, they're a corruption of a necessary hunter-killer subset of our population.  There is a small element of our population that basically exists to deal with threats.  But when an even tinier fraction of that subset is broken, the capacity for violence is turned on the rest of society.  And people like that are basically uncurable.  About all we can do is drug them to the gills, confine them or kill them.   One thing the system needs to be able to do is identify those people and separate them from the other criminals to keep them from warping the potentially redeemable criminals that make up the most of the population.

[G M]

"One of the conclusions that we came to is that a major problem with our system is that it is a half-and-half system that does the worst of both worlds.  There's the rehabilitation by hammer system, aka France, where you fit into the mold or you die.  And there's  the complete rehabilitation system that a couple of other European nations use (Finland might be one).  In those, most criminals save the most horrible ones, are essentially sentenced to a prison version of a military college.

Both styles work better than what we do in the US."

Got any stats to support this?

[G M]

http://www.aei.org/book/806

Most Americans readily support rehabilitation for convicted offenders--after all, on the face of it, many of these people have been dealt a bad hand, or at least have made poor choices, and surely would mend their ways if only they had access to enlightened forms of treatment, vocational training, or other programs. Yet an objective assessment of the research literature reveals that the majority of these rehabilitative programs have little or no lasting impact on recidivism.

[G M]

http://www.amazon.com/Inside-Criminal-Mind-Stanton-Samenow/dp/0812910826

IN NEARLY A HALF-CENTURY, little has changed in terms of deeply ingrained beliefs about the causes of crime. In the classic, still often performed, 1957 musical West Side Story, Stephen Sondheim parodied what then was the current thinking about juvenile delinquency in the song "Gee, Officer Krupke." Delinquents were punks because their fathers were drunks. They were misunderstood rather than no good. They were suffering from a "social disease," and society "had played [them] a terrible trick." They needed an analyst, not a judge, because it was "just [their] neurosis" acting up. In short, their criminal behavior was regarded as symptomatic of a deep-seated psychological or sociological problem. In this chapter I shall briefly discuss this proposition. In subsequent chapters I shall examine them in greater detail and show that the prevalent thinking about crime has been and still is loaded with fundamental misconceptions resulting in devastating consequences for society.

A man abducts, rapes, and murders a little girl. We, the public, may be so revolted by the gruesomeness of the crime that we conclude only a sick person could be capable of such an act. But our personal gut reaction shows no insight into, or understanding of, what really went on in this individual's mind as he planned and executed the crime. True, what the perpetrator inflicted upon this child is not "normal" behavior. But what does "sick" really mean? A detailed and lengthy examination of the mind of a criminal will reveal that, no matter how bizarre or repugnant the crime, he is rational, calculating, and deliberate in his actions--not mentally ill.

[Scurvy Dog]

I'm in the process of reading Beggars & Thieves, Lives of Urban Street Criminals by Mark S. Fleisher and am finding it insightful. (Published in 1995)
http://www.amazon.com/Beggars-Thieves-Lives-Street-Criminals/dp/0299147746/ref=sr_1_1?ie=UTF8&s=books&qid=1283820144&sr=8-1-spell

Here is the what the back cover says regarding the book:

"As the incidence of violent crime rises in the United States, so does the public demand for a solution. But what will work?

Mark S. Fleisher has spent years among inmates in jails and prisons and on the streets with thieves, gang members, addicts, and life-long criminals in Seattle and other cities across the country. In Beggars and Thieves, he writes about how and why they become and remain offenders, and about the actual role of jails and prisons in efforts to deter crime and rehabilitate criminals.

Fleisher shows, with wrenching firsthand accounts, that parents who are addicts, abusers, and criminals beget irreversibly damaged children who become addicts, abusers, and criminals. Further, Fleisher contends that many well-intentioned educational and vocational training programs are wasted because they are offered too late to help. And, he provides sobering evidence that many youthful and adult offenders find themselves better off in prisonwith work to do, medical care, a clean place to sleep, regular meals, and stable social tiesthan they are in Americas cities.

Fleisher calls for anti-crime policies that are bold, practical, and absolutely imperative. He prescribes life terms for violent offenders, but in prisons structured as work communities, where privileges are earned through work in expanded, productive industries that reduce the financial burden of incarceration on the public.

But most important, he argues that the only way to prevent street crime, cut prison growth, and reduce the waste of money and human lives is to permanently remove brutalized children from criminal, addicted, and violent parents."

[G M]

Removing children from criminal, addicted, and violent parents would be a good thing, and law enforcement attempts to do so, though "social workers" usually try to re-unite the families.. However some criminals emerge from intact, happy, well adjusted families, so that's not all of the answer.

[Scurvy Dog]

True, but what resonates with me most in the book is making them stay in prison and work to offset the costs that we the taxpayers pay. How many truly assimilate back into normal society with rehabilitation? Helping children is the long term solution but he does offer the short term as well.

Here in Costa Rica for example they made a new tax for "luxury homes" aka "houses that gringos build and own". They say the money is going to go towards fixing up slums in the capital (San Jose area). Why not make the criminals rebuild the slums and work 10 hour days in the hot sun and sweltering humidity? Use the luxury tax money instead for the failing infrastructure...

The prisons here are way overpopulated and 95% of convicted criminals go free. Crime is up 700% since 1990. I would think working your arse off in 95% relative humidity on a 110 degree day might be somewhat of a deterrent. I don't know...
 
edit: I would like to add that the author does not place blame on music, video games, TV violence, move violence and the like. He places it squarely on the parents who are also drug abusers,  ex-convicts, gang members, child abusers, molesters et al.

[G M]

The various states do try to get some return from inmate labor, but most individuals housed in anything above minimum security are not the inmates you want out in public.

[Scurvy Dog]

The various states do try to get some return from inmate labor, but most individuals housed in anything above minimum security are not the inmates you want out in public.

Very true. 'Tis a complicated mess to be sure. 

[Crafty_Dog]

Scurvy posted:

"He prescribes life terms for violent offenders, but in prisons structured as work communities, where privileges are earned through work in expanded, productive industries that reduce the financial burden of incarceration on the public."

This resonates with me.  I will be thinking about it more.
 

[stilljames]

At G M:  On my way to work but I'll try to dig up some statistics on relative incarceration and recidivism rates  in the next day or two.  Mind you, statistics are generally worth the money that you pay the person doing the collection and are a good way of messing up by the numbers.  But you've got to start somewhere.

You can look at numbers, if you want and show how things defy logic.  People in Israel are scared about the rocket attacks yet are 50 times more likely to die in a car accident.  8 vs 434, IIRC.  From official Israeli sources, just not put together by the government.   Or from US Gov't sources:  NSAIDs kill far, far more US Citizens every year than all the terrorists and Taliban and other extremists combined.   Those are ones I researched a couple of years ago.

As far as 'sick'  and 'Officer Krumpke'   I look at things like:  Yes, horrible things happened to you.   But each of us are responsible for what we do going forward.  We still make our own choices even if environment makes some choices look easier than others.

And sickness:  Although the difference in degree is quite severe, the same objectification and narcissism that lets us make fun of someone with a cleft pallet or who is ugly, silly or different, is the pattern of thinking that lets someone else rob, rape and kill.  That's a hard thought to deal with but it is also true.  The same pattern of I wants that has us gobbling down a super-duper combo for breakfast, get kicked out of a Chinese buffet for overindulging and then buying up stock in Breyer's ice cream is the same unthinking, unfettered catering to desires  that lets another fellow walk up and demand your wallet.

That's not a justification to do horrible things.  Quite the opposite.  It's a stand against all the little crimes against others and self that encourage the big ones.

[G M]

If Israel did nothing about the rocket attacks, do you think the death rates would be the same?

[G M]

http://history.sandiego.edu/gen/soc/prison.html

Nothing new under the sun when it comes to the "rehabilitation" of criminals.

[stilljames]

Towards G M

re: Israel.  That was just an illustration of what you can do when you look at perception of danger vs the reality of danger.  Those were merely the first statistics that I was confident of that popped into my head as I was trying to post before leaving for work.  Please, do not read too much into them.  I did not suggest that Israel do nothing, although, I will point out that Israel's response of invasion killed twice as many Israeli soldiers via friendly fire from mis-identification than the rockets killed that year.  I can discuss the situation for hours.  But that would be best done in politics.  I was not intending to start the discussion here.

re: Rehabilitation.  I agree that there is very little new under the sun.  People are essentially the same and have the same complaints that the Greeks and Romans did.  We can look at 18th and 19th Century articles in British papers and publications about crime and they are not all that much different from our own.  And to another problem that comes up:  Harsher punishments.  At one point, the English government made almost any crime against property and many against persons (esp persons of class and distinction) punishable by hanging.  And discovered that while there was a negligible  decrease in theft and assault, the murder rate sky rocketed.   Why?  The desperate or habitually criminals were already facing death, so they might as well kill a victim instead of merely robbing them.    It is a horrible balancing act to work with.  Crime should be punished.  Too little and we get more crime.  Too much and we get worse crime.

For myself, while I believe in both punishment for deterrence and in rehabilitation, I am a bigger believer in prevention.  The problem is that any program of prevention needs to start at about age 3 or 4.  And will take 15-20 years to show results.  Most of us are not that patient.

Next point:  There was a mention of TV and Video Games and delinquency.  My own theory, based on nothing but personal experience, is this:  There is an indirect linkage between an increase in TV/Video Game usage and crime.  Notice that I said: INDIRECT.  From watching my friends with children over the past 15 years or so, I have noticed a tendency to substitute TV and Video Games for parenting.  And if a parent is spending 2-4 hours a day playing Xbox or watching TV, that is 2-4 hours they are not spending with their children.  There is a discussion about dog training elsewhere on this forum.   Much like puppies, children need boundaries and consistent social interaction in order to be 'Normally' socialized.  In my view, it is not the content of TV and VGs that causes problems, it is the TIME taken up every day by these activities.

A lat point:  I've had statistics classes before.  We should always be careful when relying on numbers, especially from the internet.  I include my own numbers and statements in this.  Why should you trust me and my words?  And why should we take any other 'experts' statements at face value, either.  At the end of the day, there is no such thing as a hard fact.  There are merely educated guesses.  As anyone who has had a science class can tell you, even things such as the Law of Gravity are merely guesses that have not been disproved yet. 

I wish I had answers.  But mostly, I have questions.  Enjoy, everyone.

[Scurvy Dog]

I wish I had answers.  But mostly, I have questions.  Enjoy, everyone.

I often feel this way. I am part of a community awareness and prevention group down here in Costa Rica and we are dealing with many of these issues. Fortunately, we have worked our way up quickly to meetings with the US Embassy and the CR Government but there are no easy solutions.

Most of it is just plain frustrating!

[Body-by-Guinness]

Lotta links to source material in the original link.

NOAA's Law Enforcement Behaving Badly

By Mike Johnson
Almost every one of the 172 law enforcement officers of The National Oceanographic and Atmospheric Administration's (NOAA's) Fisheries Service has a take-home vehicle, sort of but not exactly a perk.  The cars are not part of the job description; they are a derived benefit, bought and paid for by the monies gathered by punishing fishermen.

Does NOAA's OLE (Office of Law Enforcement) policy allow take-home cars?  Not exactly.  To be precise, there is no policy.  Does NOAA's OLE policy permit the purchase of vehicles outright?  No; policy is to lease or rent.  How then were they allowed to buy some 200 cars ($4.6M)?  Lack of adult supervision.

The people we count on to protect our industry, preserve our environment, and manage our fisheries cannot even manage themselves.

OLE policy does not permit vessel purchases, but OLE has purchased 22 vessels at a cost of $2.7M using funds from fines and seizures.  The vessels are used for random boardings of working fishing boats.  Probable cause?  How quaint.

International travel?  Nice work if you can get it.  Fishermen's fines paid for some $600K of international travel expenses, $500K of which was not covered by NOAA's OLE policy.

Backup is provided in a scathing July 2010 Inspector General (IG) report on the NOAA law enforcement Asset Forfeiture Fund (AFF), made up of the money realized by fines and forfeitures from fishermen.  From January 2005 through June 2009, the AFF received some $96M, spent $49M, and had a balance of $8.4M.  My arithmetic suggests $40M is missing.  The IG's report describes NOAA's management of the AFF as an "abstract concept" and as "susceptible to both error and abuse."  You think?

The IG relates industry's complaints that "fines were excessive, constituting a form of bounty, partly because of NOAA's ability to retain and use proceeds from its enforcement cases."  The potential certainly exists for OLE agents to inflate fines so as to grow the AFF faster and to treat the AFF as a perquisite slush fund.

As described in a January 2010 IG Report,  fisheries management not only has a police force, they have an office of prosecutors, the General Counsel for Enforcement and Litigation (GCEL), and their own court system, administrative but powerful, judges, no juries, no meaningful appeal, and a presumption of guilt.  The great American Star Chamber, not unlike many other regulatory offices in our benevolent government, except for the lack of management oversight endemic within NOAA.

It cannot be shown that the NOAA OLE agents and the GCEL prosecutors proactively engage in expanding the AFF.  Anecdotal evidence abounds of threats, coercions, extortion, and other hardball interrogation and collection techniques, but these are not evidence.  Still, the IG found several anecdotes sufficiently credible to include in his January report.  Watch the linked video of a fisherman testifying before a Congressional subcommittee.  This is sworn testimony, much stronger than a simple anecdote.  Early in the tape the fisherman tells of being grilled on his personal finances.  As the tape goes on the fisherman describes being fined some $27K and being threatened - coerced - with an increase to $125K if he insisted on going before the NOAA administrative judge.  Further into his testimony, the fisherman relates an incident when he and one of his captains were offered full relief from a fine - extortion - if they would drop a dime on another target of the OLE.

In 2006, a Rhode Island fisherman's boat was randomly boarded by OLE agents.  They found $2,500 worth of monkfish for which he did not have a permit.  They seized the fish and fined the fisherman $50K.  $20 per dollar seems excessive to me, but what do I know, I'm just a rocket scientist.  The fisherman lost his appeal and had to pay the fine.  The government refused his request for payment terms and insisted on payment in full, saying, "[H]e has more than enough equity in his residence and (probably) in his vessels to secure a loan [to cover his fine]."  The government would have the fisherman mortgage his home and sell his vessels - his means of livelihood - to get paid quickly.  Was our government running out of money?  Or was the AFF slush fund in need of a transfusion?

The NOAA law enforcement structure employs a consultant to perform financial background checks and to appear as an expert witness at trial.  This in and of itself troubles me, but there's more.  The consultant has attended international fishing law enforcement meetings with OLE and GCEL personnel on a least two occasions, Kuala Lumpor (2005) and Norway (2008).  The AFF paid for the OLE and GCEL attendees.  It is unclear if the AFF also picked up the tab for the consultant.

I have trouble with the government seeking private financial information in setting their fines.  I am more troubled by the appearance that fines are set towards the top limit of a victim's ability to pay.

Two takeaways:

Overly vigorous enforcement of the fisheries regulations is not a partisan problem.  It goes back to Clinton's administration and perhaps further.   

Obama's anointed head of NOAA, Dr. Lubchenco, asked the IG to investigate the problem at the behest of the Massachusetts Congressional delegation.  NOAA has stated that they take the IG reports seriously and are looking forward, not backwards.  This translates into no plans for disciplining the overly zealous enforcers and no plans for redress of the victims.  The fines drive fishermen out of business and that is consistent with Dr. Lubchenco's goal of industry consolidation.

NOAA and Dr. Lubchenco conducted a National Enforcement Summit in August.  The acting Director of OLE gave a presentation at the summit based on Appendix 6 to Dr. Lubchenco's March 2010 response to the IG.  The acting Director will be the person to implement any cultural changes directed by upper management.  His presentation was pure bureaucratese, you know, like he took a paragraph from the Lewis Carroll column, one from George Orwell, and one from Saul Alinsky.  The subject of the presentation was - drum roll please - a plan to develop a procedure to identify priorities.  If that does not send a tingle up your leg, the priorities will be identified by October 2011.  Timely.  And there is no indication that the priorities will change from the current priority of fining the fishermen into oblivion.

Dr. Lubchenco will not be replaced by Obama, so Obama must be voted out of office before serious reforms will occur.

Of longer term concern is the march of big government.  We have discussed a presumption of guilt, search and seizure without probable cause, and punishment that fits the pocketbook, not the crime.  The ugly truth is that these counter-Constitutional manifestations of big government are all legal under our Constitution.  The lazy and gutless Congress writes sloppy laws and the ever encroaching Executive takes full advantage by filling in the blanks with autocratic regulations.  Vote the bums out may slow the process but it will not resolve the root cause.  We need to revisit the Constitution to, among other things, limit the carte blanch rulemaking ability of the two branches of Congress and to include provisions that regulatory and other bureaucracies are formulated within the principles of the Constitution.

Mike Johnson is a concerned citizen, a small government conservative, and a live-free-or-die resident of New Hampshire.  E-mail mnosnhoj@comcast.net

Page Printed from: http://www.americanthinker.com/2010/09/noaas_law_enforcement_behaving.html at September 25, 2010 - 09:08:26 AM CDT

[G M]

I guess we should just stop enforcing laws related to fishing? It's not like there is a global problem with overfishing, right?

[Body-by-Guinness]

Well they've already stopped accounting for little things like forty million missing dollar so who's gonna miss a couple fish? Kinda interesting how these enforcement officers sought financial info on their marks, err perpetrators, before assessing fines.

[G M]

Because if the fines don't hurt, it's just the cost of doing business.

[G M]

TITLE 16 > CHAPTER 70 > § 5008
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§ 5008. Enforcement provisions


(a) Duties of Secretaries of Commerce and Transportation
This chapter shall be enforced by the Secretary of Commerce and the Secretary of Transportation. Such Secretaries may by agreement utilize, on a reimbursable basis or otherwise, the personnel, services, equipment (including aircraft and vessels), and facilities of any other Federal agency, including all elements of the Department of Defense, and of any State agency, in the performance of such duties. Such Secretaries shall, and the head of any Federal or State agency that has entered into an agreement with either such Secretary under the preceding sentence may (if the agreement so provides), authorize officers to enforce the provisions of the Convention, this chapter, and regulations issued under this chapter. Any such agreement or contract entered into pursuant to this section shall be effective only to such extent or in such amounts as are provided in advance in appropriations Acts.
(b) District court jurisdiction
The district courts of the United States shall have exclusive jurisdiction over any case or controversy arising under the provisions of this chapter.
(c) Powers of enforcement officers
Authorized officers may, shoreward of the outer boundary of the exclusive economic zone, or during hot pursuit from the zone—
(1) with or without a warrant or other process—
(A) arrest any person, if the officer has reasonable cause to believe that such person has committed an act prohibited by section 5009 of this title;
(B) board, and search or inspect, any fishing vessel subject to the provisions of the Convention and this chapter;
(C) seize any fishing vessel (together with its fishing gear, furniture, appurtenances, stores, and cargo) used or employed in, or with respect to which it reasonably appears that such vessel was used or employed in, the violation of any provision of the Convention, this chapter, or regulations issued under this chapter;
(D) seize any fish (wherever found) taken or retained in violation of any provision referred to in subparagraph (C);
(E) seize any other evidence related to any violation of any provision referred to in subparagraph (C);
(2) execute any warrant or other process issued by any court of competent jurisdiction; and
(3) exercise any other lawful authority.
(d) Additional powers
(1) An authorized officer may in the Convention area—
(A) board a vessel of any Party that reasonably can be believed to be engaged in directed fishing for, incidental taking of, or processing of anadromous fish, and, without warrant or process, inspect equipment, logs, documents, catch, and other articles, and question persons, on board the vessel, for the purpose of carrying out the provisions of the Convention, this chapter, or any regulation issued under this chapter; and
(B) If [1] any such vessel or person on board is actually engaged in operations in violation of any such provision, or there is reasonable ground to believe any person or vessel was obviously so engaged before the boarding of such vessel by the authorized officer, arrest or seize such person or vessel and further investigate the circumstance if necessary.
If an authorized officer, after boarding and investigation, has reasonable cause to believe that any such fishing vessel or person engaged in operations in violation of any provision referred to in subparagraph (A), the officer shall deliver the vessel or person as promptly as practicable to the enforcement officers of the appropriate Party, in accordance with the provisions of the Convention.
(2) When requested by the appropriate authorities of a Party, an authorized officer may be directed to attend as a witness, and to produce such available records and files or duly certified copies thereof as may be necessary, for the prosecution by that Party of any violation of the provisions of the Convention or any law of that Party relating to the enforcement thereof.

[G M]

so who's gonna miss a couple fish?

http://www.washingtonpost.com/wp-dyn/content/article/2006/11/02/AR2006110200913.html

The paper, published in the journal Science, concludes that overfishing, pollution and other environmental factors are wiping out important species around the globe, hampering the ocean's ability to produce seafood, filter nutrients and resist the spread of disease.

"We really see the end of the line now," said lead author Boris Worm, a marine biologist at Canada's Dalhousie University. "It's within our lifetime. Our children will see a world without seafood if we don't change things."

The 14 researchers from Canada, Panama, Sweden, Britain and the United States spent four years analyzing fish populations, catch records and ocean ecosystems to reach their conclusion. They found that by 2003 -- the last year for which data on global commercial fish catches are available -- 29 percent of all fished species had collapsed, meaning they are now at least 90 percent below their historic maximum catch levels.

The rate of population collapses has accelerated in recent years. As of 1980, just 13.5 percent of fished species had collapsed, even though fishing vessels were pursuing 1,736 fewer species then. Today, the fishing industry harvests 7,784 species commercially.

"It's like hitting the gas pedal and holding it down at a constant level," Worm said in a telephone interview. "The rate accelerates over time."

Some American fishery management officials, industry representatives and academics questioned the team's dire predictions, however, saying countries such as the United States and New Zealand have taken steps in recent years to halt the depletion of their commercial fisheries.

"The projection is way too pessimistic, at least for the United States," said Steven Murawski, chief scientist for the National Marine Fisheries Service, which is part of the National Oceanic and Atmospheric Administration. "We've got the message. We will continue to reverse this trend."

[G M]

http://www.economist.com/research/economics/alphabetic.cfm?letter=T#tragedyofthecommons

Tragedy of the commons

A 19th-century amateur mathematician, William Forster Lloyd, modelled the fate of a common pasture shared among rational, UTILITY-maximising herdsmen. He showed that as the POPULATION increased the pasture would inevitably be destroyed. This tragedy may be the fate of all sorts of common resources, because no individual, firm or group has meaningful PROPERTY RIGHTS that would make them think twice about using so much of it that it is destroyed.

Once a resource is being used at a rate near its sustainable capacity, any additional use will reduce its value to its current users. Thus they will increase their usage to maintain the value of the resource to them, resulting in a further deterioration in its value, and so on, until no value remains. Contemporary examples include overfishing and the polluting of the atmosphere.

[Body-by-Guinness]

I don't think you are reading the piece or the links in the article closely enough, GM. This appears to be an instance of profit based policing where the enforcement arm is using the "profits" to pick up swag like cars and boats, pay for international travel, while almost half of the $96 million in fines levied are unaccounted for. Probable cause is not required before they board a ship, administrative judges who don't sound particularly neutral are used, oversight is lacking, and means of appeal few and expensive. This sounds like a recipe for law enforcement run amok, and the IG report appears to document just that. While I'm certainly not arguing for overfishing, I do think a what sounds like a corrupt and poorly supervised agency needs a big dose of transparency and accountability, and fear this instance serves as a model for what we can expect in similar instances where transparency and lack of accountability combined with a profit motive are allowed to take root in enforcement agencies.

[G M]

I don't think you are reading the piece or the links in the article closely enough, GM. This appears to be an instance of profit based policing where the enforcement arm is using the "profits" to pick up swag like cars and boats,

**I think a maritime law enforcement agency would need cars and boats. Take home cars for federal investigators are not uncommon, as they are often on call 24/7.Would you rather taxpayers fund leases for the vehicles?**

pay for international travel,

**Federal agents travel internationally, sometimes a lot depending on what they do and the cases they are working. Again, if money from fines isn't used, then taxpayer dollars or the national credit card takes a hit.**

while almost half of the $96 million in fines levied are unaccounted for.

**Don't you think that if there was any evidence of criminal misconduct, there would be a referral from the IG to the DOJ for prosecution? It looks like another federal agency with less that sterling accounting practices, which tends to be how things work everywhere in the USG.**

Probable cause is not required before they board a ship,

**It isn't required for US Customs and Border Protection, or the US Coast Guard either. By federal statute, the USCG can board any vessel in any body of water that the US has jurisdiction over, including a lake or river in the middle of the CONUS. If I recall correctly, this has been challenged in the courts and the federal courts have upheld these laws.**

administrative judges who don't sound particularly neutral are used

**I can tell you from personal experience with administrative judges on a state level that they have been more defense oriented than the typical judge in a criminal court. Admin judges are used all over the country at various levels of government. What evidence do you have to show that these judges tend to favor the NOAA ?**

oversight is lacking,

**You are referring to an IG's report, that provides oversight.**

and means of appeal few and expensive.

**Any litigation is expensive.**


While I'm certainly not arguing for overfishing, I do think a what sounds like a corrupt and poorly supervised agency needs a big dose of transparency and accountability, and fear this instance serves as a model for what we can expect in similar instances where transparency and lack of accountability combined with a profit motive are allowed to take root in enforcement agencies.

**I think the article was a shallow hit-piece with the typical law enforcement-bashing agenda based on hype and emotion rather than facts.**

[Body-by-Guinness]

Hmm, yes the IG. Let's cherry pick from their report:

An objective of our prior review was to examine the AFF, based on industry concerns raised to us that NOAA's fines were excessive, constituting a form of bounty, partly because ofNOAA s ability to retain and use proceeds from its enforcement cases. However, we found that despite OLE reporting a balance of $8.4 million as of December 31, 2009, OLE officials could not provide evidence that the AFF had ever been audited. We found that while the AFF's balance is included in the Department's overall annual financial statements, internal controls over the fund were weak and were not tested as part of the Department's annual financial statement audit due to the relatively small size of the fund within NOAA's overall budget. Accordingly, we could not readily determine how   OAA had utilized the AFF and were unable to address the concerns raised to us regarding its use; therefore, we commissioned the forensic review.

....

KPMG’s analysis suggests that the AFF’s current balance likely falls within a broader range. Based on complicated definitional, data analysis, and reconciliation efforts, KPMG found that during the period of its forensic review (January 1, 2005, through June 30, 2009), the AFF received approximately $96 million (including interest on prior balances), while expending about $49 million through over 82,000 transactions. This analysis suggests that the balance could be much higher than $8.4 million; however, NOAA must review KPMG’s analysis and determine what a more accurate figure may be. NOAA should work with the Department to better define the fund and determine its balance.

....

Moreover, while OLE and GCEL use the AFF for wide-ranging purposes, NOAA has no legal opinion on the applicable language in the MSA regarding authorized uses of the AFF. On its
face, the following statutory language would appear to restrict AFF expenditures to specific enforcement investigations or proceedings.

“Any expenses directly related to investigations and civil or criminal enforcement proceedings, including any necessary expenses for equipment, training, travel, witnesses, and contracting services directly related to such investigations or proceedings.” 16 U.S.C. § 1861(e)(1)(C)

NOAA, however, has interpreted this statutory passage to allow for use of the AFF to cover a variety of expenses which do not appear to be “...directly related to investigations and civil or criminal enforcement proceedings...” Specific examples of these types of expenditures, such as travel associated with international enforcement conferences, are contained in this report.

Clear from KPMG’s findings is that the AFF has not functioned as a coherent program, despite being a substantial source of agency operational funding―outside and supplemental to annual appropriations―drawn solely from the proceeds of NOAA enforcement actions against industry parties. Rather, as KPMG found, the AFF has operated through poorly defined, disjointed, and inconsistent processes that lack effective internal controls, and for which no single NOAA office appears to be in charge or accountable because it is so decentralized.

....

More fundamentally, OLE’s leadership could have established and updated policy guidance for employees on authorized uses of AFF monies. For instance, current guidance was issued by the then-Director’s predecessor over ten years ago and does not include authorization of AFF expenditures for the purchase of vehicles and vessels—nearly all of which have been charged to the AFF. Instead, the then-Director and then-Deputy Director largely maintained the status quo of AFF spending without adequate and effective policy and internal controls, including for high- dollar items such as vehicles and vessels, as well as travel, training, computers, firearms, and fuel, among other expenditures—including SOF expenditures for covert/undercover operations.

....

Based on KPMG’s results and our findings, we recommend that NOAA:
• Precisely define the AFF and comprehensively audit it, initially and annually. To arrive at its findings, KPMG expended significant time attempting to define the AFF since NOAA could not provide a consistent definition. As such, KPMG was unable to assess individual transactions beyond review of available supporting documentation. A comprehensive audit should entail detailed transaction testing and additional data mining.
•   Communicate the results of initial and annual audits of the AFF to NOAA and Department of Commerce senior leadership, as well as outside stakeholders (Congress, Office of Management and Budget, etc.).
•   Specifically identify and account for the AFF in NOAA’s annual budget submissions.
•   Modify OLE’s and GCEL’s processes for budgeting and spending AFF proceeds to be comparable to other agencies with similar asset forfeiture funds; and benchmark the asset forfeiture fund programs of the Treasury and Justice Departments for applicable best practices.
•   Document a formal interpretation of the statutory language in the Magnuson-Stevens Act as to authorized uses of the AFF; and establish and update formal policy for OLE and GCEL to clearly prescribe both authorized and unauthorized expenditures of AFF monies.
•   Take steps to greater centralize AFF approval processes for expenditures. •   Ensure that approved AFF expenditure transactions have required electronic/hard-copy
supporting documentation (a recurring KPMG finding).
•   Develop improved processes to (a) clearly identify and track AFF monies received and expended, and (b) ensure that AFF funds are not commingled.
•   Implement more stringent internal reviews for split purchase card transactions (i.e., those involving the same credit card holder, date, vendor, and the same or different amounts) and duplicate purchase transactions. KPMG found evidence of multiple split transactions, which circumvent single purchase limits and competitive procurement procedures, as well as duplicate transactions.
•   Determine the cost-effectiveness of General Services Administration-leased vs. purchased vehicles; establish formal policy for vehicle acquisition and management, based on operational need; and apply appropriate disposition procedures for excess vehicles.
•   Establish formal policy for which OLE personnel should be authorized use of daily take- home vehicles; and review and determine the number of “pool” vehicles per locale based on justified need.
•   Review and set policy for which OLE personnel should be authorized use of purchase cards, based on operational need. Presently, nearly every OLE special agent and enforcement officer is issued a purchase card. This is not consistent with current government-wide policy for internal controls to limit the risk of misuse of purchase cards5.
•   Determine whether NOAA’s inability to adequately track AFF expenditures constitutes violation of any federal financial management law or standard. For example, while the Magnuson-Stevens Act requires that fines and penalties imposed for violations of the Northeast Multispecies Fishery Management Plan are to be specifically used to enforce that Plan, NOAA has not tracked the use of these funds. The then-Director was unfamiliar with this requirement when we initially addressed it with him.

....

DETAILED KPMG FINDINGS
•   Due to the high volume of AFF transactions, the process-oriented focus of its review, and because considerable time was required in attempting to define the AFF, KPMG analyzed a relatively small percentage of transactions. Though it did not identify many anomalous transactions, KPMG was limited to, and relied on available supporting documentation, and did not carry out additional inquiries beyond review of existing records to identify evidence of potential irregularities.
•   No single unit, nor any individual, within NOAA has a detailed understanding of the AFF from start to finish; and as a result, it has different meanings to different entities and officials within NOAA. Essentially, the AFF refers to no single source of revenue, no one accounting fund, program, or project, and is more of an abstract concept than a specific fund that can be tracked with a high degree of detail. After KPMG requested that NOAA provide specific criteria for defining which transactions were related to the AFF, NOAA gave KPMG effectively three different definitions of the AFF.
First, NOAA informed KPMG that the AFF comprised three distinct funds, containing ten project codes. In reviewing NOAA-supplied data, KPMG discovered that the data referenced an unexpected fund code with an additional project code. KPMG’s follow-on inquiries established that this data was related to the AFF and should have been provided to KPMG
6 Supporting documentation was provided after the agreed upon cut-off date and, as such, was not reviewed by KPMG due to its time constraints. However, based on our assessment of the additional documentation provided, it would not have significantly affected these reported percentages.
initially. KPMG’s inquiries later yielded yet a third definition of the AFF through the addition of two additional program codes. KPMG’s analysis of the data showed that these three definitions of the AFF did not yield consistent data sets; thus, KPMG could not utilize any of the AFF definitions provided by NOAA for analysis. KPMG ultimately selected all project codes categorized as part of the Civil Monetary Penalties Fund (CMP) and all project codes utilized by OLE and GCEL, in order to define the AFF, while realizing that it would likely capture more data than NOAA would consider part of the AFF.
•   Current processes have caused a lack of visibility over the entire fund by any one organization within NOAA. Between collection and disbursement, there are a significant number of “hand- offs” from one NOAA organization to another, without a consistent method of tracking the funds. As monies pass through different NOAA Finance accounting funds, they are labeled with several different Finance accounting program and project codes. Revenues comprising the AFF are co-mingled with other funds in various finance funds, making it nearly impossible to delineate, track, and oversee the receipt and expenditure of only those monies which comprise the AFF.
For example, KPMG found that of the relevant 99,251 records examined, there were 20,589 Accounts Payable records with organization codes that did not correspond with the 11 OLE or GCEL organization codes applicable to the AFF. Similarly, while the MSA requires that fines and penalties imposed for violations of the Northeast Multispecies Fishery Management Plan are to be specifically used to enforce that Plan, NOAA has not tracked the use of these funds.
• OLE headquarters does not have a formal budget for its use of the AFF. Although there are annual estimated expenditures for the use of the AFF, there is no formal process or reconciliation of budgeted funds to actual expenditures. Budget appropriations for each OLE division cover only a portion of their total operating costs and as a result, OLE divisions plan for wide use of AFF monies which are drawn from AFF accounts throughout the fiscal year. Other agencies with funds similar to the AFF fully appropriate operating budgets and then determine the amount to be withdrawn from the funds to reimburse the department-level agency based on a review of expenditures. Similarly, GCEL has two funding sources for its operations: appropriated funds and the AFF. GCEL receives a minimal (usually less than $1,000) appropriated budget for its total annual operating costs (exclusive of salary), but assumes that virtually all (approximately 99 percent) of its operating costs are AFF- reimbursable.
•   OLE’s processes for use of AFF monies, including procurements, are highly decentralized and inconsistent. OLE is not a large agency, but personnel within each of OLE’s six divisions (regions) determine when an expenditure is appropriate to charge to the AFF. As a result, approval processes are different for each division. Each division has a Special Agent-in- Charge (SAC), who require differing levels of approval within their regions based on dollar amounts of requested purchases. While some SACs appear to have instituted local policies to provide greater oversight for AFF expenditures, there is a clear lack of consistency between divisions.
•   Further, KPMG found that between January 1, 2005, and June 30, 2009, 466 individuals in OLE were issued purchase cards, which could be used to charge expenditures against AFF accounts. Approximately 25 percent of the issued cards had four or fewer transactions during this four-and-a-half year period, suggesting that those cards were not necessary for OLE operations and should not have been issued in the first place. This finding underscores the need for better management and internal controls for purchase cards.
•   Different types and amounts of documentary support were maintained in each of the six OLE divisions, OLE headquarters, and GCEL. KPMG found that 62 percent of 604 transactions it selected for further analysis (i.e., document review) did not have required supporting documentation and 27 percent did not have required approvals7. It is unclear whether verbal approvals were provided for these transactions. OLE’s six divisions and headquarters, along with GCEL, have different requirements for AFF-related document retention and preservation. As a result, the same types of documentation were often not present from one division/region to another, and it was difficult to determine what constituted a “complete” set of supporting documentation. Even within divisions, varying amounts of support documentation were provided. Further, transaction authorizations were not consistently noted or documented. NOAA should consider establishing an approved set of documentation to be used for all divisions/regions.
•   KPMG identified approximately 4,000 OLE and GCEL purchase card transactions that appeared to be split into two or more transactions (i.e., those involving the same card holder, date, vendor, and the same or different amounts) to circumvent single purchase limits and/or avoid competitive procedures—in violation of Federal Acquisition Regulation requirements that protect against improper or fraudulent purchases. Of this population, approximately 400 were selected for further review, 41 of which were determined to be improperly split. Further, KPMG reported that over 50 percent of the transactions selected for further review lacked supporting documentation and, 34 percent had incomplete or missing approvals.
One example KPMG identified involved three separate transactions (for transcription services on a single case) with the same vendor, on the same date, in the amounts of $1,243.29, $1,201.74, and $666.70, for a total charge of $3,111.73. This total exceeded the $3,000 micro-purchase transaction ceiling for purchase cards. KPMG was unable to determine why these transactions were split.
•   KPMG identified approximately 1,200 potential duplicate purchase card transactions, of which 290 were selected for further review. Fifteen were confirmed to be duplicates based on analysis of supporting documentation. However, KPMG noted that 62 percent of the selected transactions lacked supporting documentation, and 30 percent had incomplete or missing approvals. Further, KPMG identified nearly 11,000 potential duplicate non-purchase card transactions (i.e., purchase orders and contracts) and 13 of these were selected for further assessment. This review disclosed that these 13 transactions, totaling $126,600, did not have required supporting documentation.
7 Supporting documentation was provided after the agreed upon cut-off date and, as such, was not reviewed by KPMG due to its time constraints. However, based on our assessment of the additional documentation provided, it would not have significantly affected these reported percentages.

For example, KPMG identified a Citibank statement containing two $2,782 charges. One of these charges appears to be reversed on the Citibank statement. However, this charge was submitted to the accounting system twice, but KPMG could not determine why this charge was submitted to the accounting system a second time, or whether this second submission was reversed or paid.

And that's from the summary. Plenty of more juicy details to be found in the full report: http://www.oig.doc.gov/oig/reports/correspondence/2010.07.01_IG_to_NOAA.pdf

We use to have a saying in the restaurant biz: if you want an honest crew, lock the back door. The KPMG report makes it clear the back door of NOAA's Asset Forfeiture Fund has been open for over a decade, rudimentary controls are not in place, 170 odd employees, including desk jockeys, drove 200 odd vehicles for which they had no statutory authority to purchase, much less fuel, maintain, or drive for personal use, while the opening paragraph of the IG report mentions that this incredibly lax procedures inspired the perception that the AFF was a "form of bounty" while forty million dollars remain unaccounted for.

I will make any wager you care to name that a proper investigation will find criminal wrongdoing, and I'll go double or nothing on a bet that enforcement decisions were made based on an assessment of how much money would be forfeited and hence fed into the maw of an organization clearly run amok where any reasonable standard of accountability is concerned.

[G M]

OIGs in the federal government refer cases to the DOJ for prosecution all the time. This report makes no claim of criminal conduct, yes? Sloppy internal controls of money does not make a criminal case. Beyond the internal audit, is there any validated claim of criminal conduct by any LEO employed by NOAA?

[Body-by-Guinness]

Nope, cause there is a decade worth of accounting so incredibly sloppy that KPMG could only audit a tiny fraction of it. Again, my experience is that when there is poor oversight, no accountability and forty million dollars missing criminal misconduct is a given, and would make any wager you'd care to that this is the case here. You don't leave that kind of cash unminded for a decade without someone stuffing their pockets. Love to see an inventory of the computers and guns bought with those often times duplicate and or split purchase orders as that's the sort of thing that commonly walks. I've chased this stuff down before; hand me the POs and I'll demonstrate the inventory is missing.

[Body-by-Guinness]

Oh my, just bumped into another OIG report released Friday that is very damning, including findings like this:

• AlthoughfishingregulationspromulgatedbytheFisheriesManagementCouncilsare complex and can change significantly, NOAA appears overly rigid in its interpretation and application of provisions of the regulations. This contributes to industry’s negative belief that NOAA only exercises its regulatory discretion to its own benefit.
While NOAA’s fisheries enforcement program operates according to a strict liability system, an element of discretion in the issuance of some citations and in the assessment of penalties is authorized. In our examination, we found an instance where NOAA refused to exercise discretionary leniency in a case that appeared appropriate for such, citing absence of specific policy direction and taking the position that doing so leads them down a “slippery slope.” Specifically, a fishing vessel experienced a mechanical breakdown and returned to port, never setting its gear to capture fish, yet NOAA charged the vessel for fishing during that time because it has no policy to credit vessel days-at-sea for mechanical breakdowns and NOAA officials did not want to set a precedent even though it would have promoted a fair implementation of the regulations.
Also, we confirmed complaints of disparate treatment and inconsistent penalties for NOAA’s enforcement of restrictions on fishing in yellowtail flounder stock areas. During the approximate four-year period when fishermen were required to have a NOAA Letter of Authorization (LOA) to fish in yellowtail flounder stock areas in the Northeast Region, GCEL did not impose a single fine on any of the 7 cases that were referred to it for enforcement action. However, after the LOA requirement was eliminated, GCEL nonetheless retroactively charged 14 LOA cases—one of the original 7 and 13 new—resulting in assessed penalties ranging from $1,600 to $58,700. All 14 cases were charged solely for the referenced LOA violation. These cases caused many fishermen to believe that GCEL was levying fines to target a particular fish dealer facility and those who did business there, rather than enforcing statutes and regulations for the expressed purpose of protecting the fish stock.
•   Untimely enforcement actions impair both deterrence and the ability of respondents to defend themselves.
In our review we confirmed complaints about the time-consuming, lengthy process which makes it difficult for fishermen to defend against charges, because of such problems as having to recall details from a single incident years in the past. Delays in case disposition fuel the industry’s negative perception of NOAA’s motives and clearly exhibit NOAA’s willingness to pursue stale claims and call into question the integrity of NOAA’s adjudicatory processes. In one case we examined, nearly two years after a fisherman allegedly exceeded the limit for codfish on a single day, OLE notified him of the violation. The fisherman eventually settled the case in September 2009, forfeiting 10 days-at-sea (DAS) from his 2009 DAS allocation, nearly four years after the date of the alleged violation. As an OLE agent told us, in concurring with this observation regarding the timeliness of GCEL enforcement actions, “Justice delayed is justice denied.” Our findings illustrate that NOAA needs better case management policies and guidelines for timeliness. We note that NOAA is working to reduce its backlog of enforcement cases, including for the purpose of improving timeliness.
10
• OLEagentslacknecessaryguidancetoensurethatwarrantlessinspectionsare conducted properly.
We found that OLE agents have been provided limited training and inadequate guidance for warrantless inspections, particularly concerning the extent of their permissible access to inspect records and documents and, in at least one significant instance, to properly state the nature and purpose of their entry into a facility. As such, NOAA should review its regulations and internal guidance concerning warrantless inspections and provide detailed direction to OLE agents. While OLE internal policy addresses the administrative inspection warrant process, it does not guide the discretion of enforcement agents conducting warrantless inspections. Without such limitations, NOAA risks subjecting regulated entities to acts that could constitute unconstitutional searches and seizures. This could violate citizens’ constitutional rights and result in meritorious cases being successfully challenged.

Just a small piece of the report, more here: http://www.oig.doc.gov/oig/reports/correspondence/2010.07.01_IG_to_NOAA.pdf

[G M]

Damming to you, looks like pretty weak tea to me.  If NOAA LEOs exceed their statutory authority regarding inspections, the the "fruit of the poison tree" doctrine applies and any evidence gathered is inadmissible in court.