Reversing the Extinction Vortex for the Rarest Species: How States Can Overcome ESA’s Weak Criminal Penalty Clauses

Gail L. Grabowsky, Chaminade University of Honolulu

Abstract

This paper was inspired through real life experiences in the authors’ home state of Hawaii. In 2009 the persecution of several endangered species, specifically Hawaiian monk seals and green sea turtles, led to large public outcry and ultimately a criminal conviction for the shooting of a pregnant monk seal. The perpetrator of this crime received a three-month jail sentence and a twenty-five dollar fine. The public viewed the penalty as outrageously lenient, particularly since the species now contains fewer than 1200 individuals and is declining at greater than four percent per annum. The State of Hawaii responded to this situation quickly, passing a bill strengthening the criminal penalties within the State Endangered Species Act. Unfortunately, many other critically endangered species throughout the United States also suffer needless persecutions and takings that, because of the weakness of the Endangered Species Act’s penalty clauses, result in small fines, little jail time and most importantly, the undeterred diminishment of species that are truly on the brink of extinction and for which every individual matters. We argue in this paper, that, although imperfect, Hawaii’s solution to weak ESA penalties is actually elegant, in that it focuses on a species that is most in need, and timely, in that states may react rapidly when species are particularly threatened.