Law prof: more jail time for cruelty does not advance animal rights

Institutional offenders remain untouched by felony cruelty penalties

DENVER––“More prosecution will never lead to greater animal rights.  Longer sentences have not incrementally advanced the standing of animals in society,”  argues Sturm College of Law professor Justin Marceau in the March 20,  2021 edition of the Harvard Law Review Forum.

Marceau is also the Brooks Institute Faculty Research Scholar of Animal Law and Policy,  and an affiliated faculty member with the Institute for Human Animal Connections at the Graduate School of Social Work.

Stood up for geese

Denver residents might recognize Marceau as a prominent opponent of mass roundups and slaughters of the non-migratory Canada geese found in many public parks––and found in many more before July 2019.

“More public scrutiny is given to a zoning amendment or liquor license than to the decision to slaughter more than two thousand geese last week,”  thundered Marceau then,  in a guest column for the Colorado Sun.

“City officials have claimed that feces from the geese is a ‘nuisance and a health risk,’”  Marceau wrote.  “Imagine a policy that permitted one to kill the dogs” who routinely poop in parks and yards.

“Pain relief for humans”

More prosecutions of individual acts of cruelty,  contends Marceau in his Harvard Law Review Forum commentary,  “provide pain relief for the humans” who are disturbed by cruelty to animals,  but “masks rather than cures the structural violence involved in the ordinary commercial exploitation of animals.”

Marceau opened his Harvard Law Review Forum commentary,  entitled “Palliative Animal Law: The War on Animal Cruelty,”  by demonstrating in depth and detail that ANIMALS 24-7 was not alone in observing that the “Preventing Animal Cruelty and Torture Act” [PACT Act] signed into law in November 2019 by then-U.S. President Donald Trump was worse than useless.

(See HSUS, Donald Trump, & the PACT Act: The Art of the Deal.)

“High-profile palliative intervention”

“Although every state already permitted felony animal cruelty liability,”  Marceau wrote,  “animal lawyers hailed the PACT Act as a ‘defining moment’ for animal law because it allowed acts of animal cruelty to be charged as federal felonies.”

But the PACT Act,  Marceau found upon scrutiny,  “is a high-profile palliative intervention that provides a sense of accomplishment without addressing any of the underlying causes of animal suffering.”

Such efforts,  Marceau believes,  “tend to do more harm than good by reinforcing,  and even exaggerating,  the invisibility of most animal suffering in law.”

Specifically,  Marceau explained,  “Adopting the mindset that social problems are solved through criminal law, animal law commentators assume that the absence of a sufficiently punitive response signals a lack of social standing for animals. Thus, as one group celebrated,  ‘PACT makes a statement about American values.’

“Distracting sideshow”

“Rather than catalyze change in American values,  however,  these war-on-crime approaches create a distracting sideshow that diverts public scrutiny away from matters of the most urgent concern.”

The PACT Act,  as ANIMALS 24-7 reported soon after it became law,  prohibits some extreme acts of cruelty,  if they occur in interstate commerce or on federal property.

The PACT Act exempts,  however,  anything done in connection with legal hunting, fishing,  or trapping;  “customary and normal” agricultural and veterinary practices; slaughtering animals for food;  pest control;  medical and scientific research; euthanasia;  or actions “necessary to protect the life or property of a person.”

“Vehicle for the protection of institutionalized animal abuse”

Therefore,  wrote Marceau,  “Prioritizing the suffering of very few animals,  by excluding others,  this law creates and strengthens animal hierarchies;  thus, the very reforms championed by animal lawyers may reinforce the painful irony at the core of animal law — that is,  as a historical matter,  the law of animals has been a vehicle for the protection of institutionalized animal abuse.

“Rather than serving as a gateway to greater protection for all species,”  Marceau argued, “legally entrenched hierarchies degrade the socio-legal status of animals as a group,  and allow for the infliction of horrific animal suffering” if the suffering is inflicted through the exemptions provided in all state and federal laws that purport to protect animals.

Pointed out Marceau,  “The law explicitly creates categories of exemptions for animals whose victimhood is often invisible to the law and therefore beyond criminal opprobrium.

“Slaughterhouses arguably inoculated from prosecution”

“The breadth of these exemptions” in the PACT Act “is striking,”  Marceau continued.  “Animals raised for food make up well over 90% of the domestic animals in this country, and yet the corporations operating slaughterhouses are arguably inoculated from prosecution unless a prosecutor can show beyond a reasonable doubt that the pain and suffering they might cause is not ‘customary and normal.’”

Wrote Marceau,  “Suffering matters,  and animal victimhood is recognized up until the point when it would become morally or commercially relevant to most Americans.”

Marceau then cited several specific examples.

“While federal law permits whales, primates, and elephants to be held in captivity and displayed for entertainment,”  Marceau observed,  “the law criminalizes animal fighting, which is often associated with nonwhite cultures.  Similarly,  while the PACT Act permits cruel treatment and the killing of animals in the course of hunting or fishing,  federal law prohibits the humane slaughter of dogs and cats for consumption.”

“International media sensations”

Critical to recognize is that Marceau is not contending that either animal fighting or “the humane slaughter of dogs and cats for consumption” should be legalized in the name of consistency.  Rather,  Marceau is suggesting that the same legal logic through which animal fighting and killing dogs and cats for the dinner table are banned should be extended to practices that may be just as cruel to the animals involved,  yet for cultural reasons are not (yet) found offensive by most Americans.

“Even relatively small acts of violence against animals by individuals can become international media sensations,”  Marceau notes,  citing several case histories,  “particularly if the accused can be portrayed as a low-status offender because of poverty,  race,  or prior criminal record.  The animal protection movement has mastered the art of fanning these flames of retribution, even when doing so also stokes narratives about racialized justice and inequality.”

Corporate prosecutions “vanishingly rare”

“Corporate prosecutions,”  meanwhile,  “are vanishingly rare,”  Marceau observes,  since animal cruelty law tends to focus “on individual actors as opposed to systemic accountability.  One might worry that in the criminal realm,”  Marceau suggests,  “the amount of focus and fury surrounding a case is inversely linked to the amount of animal suffering that actually occurred.”

A parallel might be found in the era of lynch law,  in which a single alleged yet untried and unproved allegation of an “outrage” against a white person often led to the mob torture and killing of many black people,  some of whom had suffered similar “outrages” almost routinely without hope of legal protection.

Iowa farmers cooked pigs to death

Continued Marceau,  “In June of 2020,  Iowa’s governor signed into law a third attempt to provide unique protection against investigations to agricultural facilities,”  better known as an “ag gag” law.

“Around that time,”  Marceau recalled,   “activists engaged in civil disobedience by trespassing and placing hidden cameras in the largest pig farm in Iowa.  The cameras captured footage of a ‘ventilation shutdown’ to kill all of the pigs.  Pigs were killed by the thousands in Iowa by essentially cooking them to death.”

Yet,  “Unlike cases involving a single, high-status animal victim,  there has been no public statement demanding charges,  no mailers urging constituents to reach out to their elected officials,  and no grandstanding about the injustice of no criminal charges” being filed against the pig farmers.

Animal lawyers don’t defend activists

“One could extrapolate that the law-and-order culture among animal lawyers has conditioned them to believe that,  as a policy matter,”  Marceau suggested,  “they should not pursue legal actions or public outreach based on video evidence obtained through civil disobedience or illegality.  The law-and-order lawyers of the [animal advocacy] movement,  it appears,  want to create a clear demarcation between their work and that of activists on the ground who will risk jail time to expose animal suffering on a massive scale.

“Indeed,  the animal lawyers rarely even suggest that the criminal defense of such activists,  who are literally saving animal lives and documenting abuse,  has a home in the realm of animal law,”  charged Marceau.  “Prosecutions of individual abusers is treated as somehow directly serving the interests of animals,  but the defense of a person who is engaged in activism that does in fact directly save animals is rejected.”

But Marceau did

Worth mentioning here is that Marceau himself,  as a then-Animal Legal Defense Fund attorney,  in August 2015 won a U.S. District Court for the District of Idaho ruling that the Idaho ag-gag law was unconstitutional because it violated the First and Fourteenth Amendments to the U.S. Constitution.  This decision was the first time,  but scarcely the last,  that a court invalidated an ag-gag law,  overturning the conviction of activists who challenged it.

“Animal lawyers and advocates were actually working with legislators in Iowa on amendments to the Iowa cruelty code,”   Marceau noted,  even as the reinforced Iowa ag-gag law passed.

National animal advocacy organizations then declared victory,  and praised the Iowa legislature and governor for making prosecutions of individual acts of cruelty easier,  while increasing the maximum penalties for several relatively rare offenses.

Concluded Marceau,  “To celebrate Iowa’s animal protection efforts in the spring of 2020 was nothing short of public obfuscation.  This was not a time of ‘impactful’ change for the animals in Iowa — it was a year of horrific policymaking and absenteeism when it came to corporate accountability.”

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