Let’s update the Lacey Act fine structure

Legal wildlife trade in the United States is a $3 billion per year industry. However, illegal trade is also a lucrative business with an estimated worldwide value of $10-20 billion annually (TRAFFIC). Estimating both the percentage of worldwide trade that the US accounts for and its value are difficult due to the illicit nature of the trade. Further, estimating illegal trade volume is compounded by an overall increase in legal wildlife trade products without proportional increases in effort to identify illegal products.

In the US, the Lacey Act (16 U.S.C. SS 3371-3378) restricts the import, export, interstate commerce, and sale of plants, animals, and their parts that are either protected via state, federal, or international law or restricted due to “injurious” (i.e.- invasive) species status. The statue is best associated with the prohibitions on importing invasive species; however, most Lacey Act violations are in regard to illegal trade, specifically the transport of illegal products (processed or raw) across US or state borders. The Lacey Act is a federal statue designed to strengthen state laws in part by drawing on the Commerce Clause of the US Constitution (Article I, Section 8, Clause 3). This allows prosecutors to file in federal court when interstate wildlife commerce violated one state’s laws. To achieve the interstate transport objective, the Lacey Act criminalized interstate shipping in violation of one state’s law, required truthful labeling on shipping containers, and gave states the power to regulate products imported from another state.

Figure 1- Fine structure for Lacey Act violations. If the value of the trade product is less than $350 then defendants will face civil fines, while products valued over $350 will face criminal proceedings. Within the criminal proceedings there is a maximum fine for individuals and corporations.

The Lacey Act is a command-and-control policy using fines and jail time (Figure 1) as disincentives to gain compliance. This raises the question if the prescribed fines are sufficiently high to discourage illegal trade. Under the assumption that illegal wildlife trade has increased over time, one may think that the fines and/or jail time are insufficient. Effective penalties should be greater than the value of individual trade violations so that the risk of being caught would discourage the trade from occurring.

Amendments to the Lacey Act have increased both the per violation and total amount of fines that individuals may incur when charged with a violation. To observe changes in the fine structure over time, I plotted the maximum fine per felony violation as both the absolute value and the value adjusted for inflation (Figure 2). In 1988, the fine was raised to $20,000 and remains at that level (as of 2013); however, inflation decreases the value of a dollar over time. This means that fines are less costly to the violator today than in the past. Making a second assumption that those involved in wildlife trade are smart business people whose prices have kept up with both inflation and demand, then the ever weakening fine structure may not be a sufficient deterrent to illegal trade.

Figure 2- Fine per felony violation of the Lacey Act (light blue) and the value of that fine adjusted to the value of the dollar in 2009 (dark blue).

I propose an increase in the maximum fine for felony violations to at least $60,000 and proportional adjustments to other per violation and total fines throughout the penalty structure. This three-fold increase in fines would bring penalties in line with those from 1969 (Figure 2); greater increases should provide even more disincentive for illegal trade. Fines collected from successful prosecution of Lacey Act violations support future FWS enforcement activities. Increased fines may be a win-win solution for the conservation community in that they either decrease overall trade volume (win), or don’t decrease volume but increase funding for container inspections at ports or undercover operations (win).

Worldwide attention to wildlife trade has risen in the past few months as politicians and celebrities (here, here, here, and here) have joined with conservation organizations to bring attention to both the trade and extinction risk of highly traded species. With increased political and public attention, now may be an opportune time for an amendment to the Lacey Act to increase the fines. I would view this amendment as one piece of an overall policy and education campaign to decrease trade as attention is needed on both the supply and demand sides of the wildlife trade equation.


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