Abstract
In 2019 President Donald Trump signed into law the Preventing Animal Cruelty and Torture (PACT) Act (Pub. L. No. 116–72, 133 Stat. 1151 [2019] [codified at 18 U.S.C. § 48].) Although every state already permitted felony animal cruelty liability, 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.
Professor of Law at the Sturm College of Law, 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. A version of this chapter previously appeared in the Harvard Law Review Forum, 134 Harv. L. Rev. F. 25 (2021).
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Pub. L. No. 116–72, 133 Stat. 1151 (2019) (codified at 18 U.S.C. § 48).
- 2.
Press Release, Humane Soc’y of the U.S., Extreme Animal Cruelty Can Now Be Prosecuted as a Federal Crime (Nov. 25, 2019), https://www.humanesociety.org/news/extreme-animal-cruelty-can-now-be-prosecuted-federal-crime [https://perma.cc/9ZP9-E5G3].
- 3.
Id. (“For decades, a national anti-cruelty law was a dream for animal protectionists.”).
- 4.
Kitty Block and Sara Amundson, HSLF and HSUS Deliver Big Wins for Animals in 2019: Our Banner Year in the Nation’s Capital, A Humane World: Kitty Block’s Blog (Dec. 13, 2019). https://blog.humanesociety.org/2019/12/hslf-and-hsus-deliver-big-wins-for-animals-in-2019-our-banner-year-in-the-nations-capital.html [https://perma.cc/L6N3-UA7Q].
- 5.
Patrick Eckerd, Senate Unanimously Passes PACT Act Against Extreme Animal Cruelty, Jurist (Nov. 7, 2019). https://www.jurist.org/news/2019/11/senate-unanimously-passes-pact-act-against-extreme-animal-cruelty [https://perma.cc/7ALP-9CVX].
- 6.
Remarks on Signing the Preventing Animal Cruelty and Torture Act, 2019 Daily Comp. Pres. Doc. 2 (Nov. 25, 2019). https://www.govinfo.gov/content/pkg/DCPD-201900823/pdf/DCPD-201900823.pdf [https://perma.cc/M9X3-Y65L].
- 7.
Id.
- 8.
Some commentators would argue that even a focus on systemic forms of animal oppression ignores some of the greatest threats to species preservation. See generally Carter Dillard, Fundamental Illegitimacy, Willamette L. Rev. (forthcoming 2021) (on file with the Harvard Law School Library) (arguing that patriarchy-driven population growth has caused, and will continue to fundamentally cause, the majority of human and nonhuman suffering).
- 9.
Aya Gruber, The Feminist War on Crime, 92 Iowa L. Rev. 741, 801–20 (2007) (exploring feminism’s reliance on carceral logic, specifically in the domestic violence context, and the patriarchal patterns such reliance reinforces); see generally Aya Gruber, The Feminist War on Crime (2020) [hereinafter Gruber, The Feminist War on Crime].
- 10.
Courtney G. Lee, The PACT Act: A Step in the Right Direction on the Path to Animal Welfare, Jurist (Dec. 1, 2019). https://www.jurist.org/commentary/2019/12/courtney-lee-pact-act [https://perma.cc/EY8W-UKUC].
- 11.
Preventing Animal Cruelty and Torture Act, Pub. L. No. 116–72, 133 Stat. 1151, 1552 (2019).
- 12.
See generally Donald Black, The Behavior of Law (1976). “If the offense was committed against someone of sufficiently high status,” Professor Donald Black writes, a team of detectives might “be directed to work around the clock until a suspect is found and charged with the offense,” but if the victim is “low status,” the investigation will likely be minimal and soon abandoned. Donald Black, The Manners and Customs of the Police 14–16 (1980).
- 13.
Animal Legal Def. Fund, Animal Legal Defense Fund Position Statement: Sentencing for Animal Cruelty Crimes 1–2. https://aldf.org/wp-content/uploads/2019/09/Position-Statement_Sentencing-2019.pdf [https://perma.cc/HN7U-HQ7J] (concluding that the criminal system “ranks crimes by their perceived severity, ascribing the harshest sentences” to the most reprehensible crimes).
- 14.
See Preventing Animal Cruelty and Torture Act, Pub. L. No. 116–72, 133 Stat. 1151, 1552 (2019) (codified at 18 U.S.C. § 48[d]).
- 15.
Id.
- 16.
The American Veterinary Medical Association approves, for example, the use of blunt force trauma to euthanize an animal. Am. Veterinary Med. Ass’n, AVMA Guidelines for the Euthanasia of Animals: 2020 Edition 100 (2020). https://www.avma.org/sites/default/files/2020-01/2020-Euthanasia-Final-1-17-20.pdf [https://perma.cc/8KCY-GXUY]. Moreover, drowning birds in foam is among the “preferred methods” for depopulating “confined poultry,” and electrocution is a preferred method for depopulating pigs. Am. Veterinary Med. Ass’n, AVMA Guidelines for the Depopulation of Animals: 2019 Edition 53 (2019). https://www.avma.org/sites/default/files/resources/AVMA-Guidelines-for-the-Depopulation-of-Animals.pdf [https://perma.cc/9DA8-S2UM] [hereinafter AVMA Guidelines for the Depopulation of Animals].
- 17.
Other federal statutes are similarly tailored to a predominantly Eurocentric approach to protecting animal suffering. For example, while federal law permits whales, primates, and elephants to be held in captivity and displayed for entertainment, 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. Dog and Cat Meat Trade Prohibition Act of 2018, H.R. 6720, 115th Cong. (2018); see also Marceau (2019, pp. 175–176).
- 18.
See generally Alice Ristroph (2018) (arguing for the eradication of the category of “felon”).
- 19.
Professor Gary Francione warns that the animal protection movement’s obsession with favorable press coverage puts it at risk of becoming superficial and inattentive to the interests of most animals. See Gary Francione (1996) on pages.
- 20.
Stephanie Clifford, He Kicked a Stray Cat, and Activists Growled, N.Y. Times (Sept. 29, 2014). https://www.nytimes.com/2014/09/30/nyregion/animal-abuse-gains-traction-as-a-serious-crime-with-jail-more-often-the-result.html [https://perma.cc/T7WY-TF44].
- 21.
Id.
- 22.
Id. The New York Times story detailing the case noted that interviews with lawyers revealed a persistent trend favoring incarceration, and a number of successes in obtaining it. Id.
- 23.
Animal Advocates, Punish Andre Robinson, Man Accused of Kicking Stray Cat in Brooklyn, NY to Full Extent of the Law, Care2 Petitions. https://www.thepetitionsite.com/554/529/298/punish-andre-robinson-man-accused-of-kicking-stray-cat-in-brooklyn-ny-to-full-extent-of-the-law/ [https://perma.cc/86PV-92EW].
- 24.
Policing continues to be celebrated even as research shows that companies generally viewed as anathema to animal protection, like Chevron and Shell, are corporate sponsors and featured “partner[s]” of local police departments across the country. Gin Armstrong and Derek Seidman, Fossil Fuel Industry Pollutes Black & Brown Communities While Propping Up Racist Policing, Eyes on the Ties (July 27, 2020). https://news.littlesis.org/2020/07/27/fossil-fuel-industry-pollutes-black-brown-communities-while-propping-up-racist-policing/ [https://perma.cc/JKH9-2HKS].
- 25.
See Humane Soc’y of the U.S., An HSUS Report: The Welfare of Animals in the Foie Gras Industry 1 (2012). http://www.humanesociety.org/assets/pdfs/farm/HSUS-Report-on-Foie-Gras-Bird-Welfare.pdf [https://perma.cc/7Q8G-NLBD] (“[S]ubstantial scientific evidence suggests that force-feeding... is detrimental to [the birds’] welfare.”); see also Humane Soc’y of the U.S., Scientists and Experts on Force-Feeding for Foie Gras Production and Duck and Goose Welfare 1. https://www.humanesociety.org/sites/default/files/docs/hsus-expert-synopsis-force-feeding-duck-and-goose-welfare.pdf [https://perma.cc/XQ6G-B3KH].
- 26.
Karin Brulliard, Seeking Justice for Justice the Horse, Wash. Post (Aug. 13, 2018). https://www.washingtonpost.com/news/national/wp/2018/08/13/feature/a-horse-was-neglected-by-its-owner-now-the-horse-is-suing/ [https://perma.cc/LUC9-G4YQ].
- 27.
Tilikum, Katina, Corky, Kasatka, and Ulises, Five Orcas, ex rel. PETA v. SeaWorld Parks & Ent., 842 F. Supp. 2d 1259 (S.D. Cal. 2012).
- 28.
N.Y. Agric. & Mkts. Law § 353 (McKinney 2005) (making it a crime to “cruelly beat[] or unjustifiably injure[], maim[], mutilate[], or kill[] any animal,” and refusing to provide an explicit agricultural practices exemption); see People v. Voelker, 658 N.Y.S.2d 180, 183 (N.Y. Crim. Ct. 1997) (“Whether or not the People can prove that defendant ‘unjustifiably’ committed these acts is a matter best left to the trier of fact.”). It does not seem radically far-fetched to believe that a jury might find that according to the “moral standards of the community,” id., the injuries caused by force-feeding a bird with a funnel multiple times per day could constitute unjustified injuring, maiming, mutilation, or torture.
- 29.
Ag-Gag laws are “agriculture security legislation... that... restricts — or ‘gags’ — methods used to gather and disseminate information about the conditions” of animal agricultural production. Shaakirrah R. Sanders (2020, p. 1172) (documenting legislative history showing that the laws were a reaction to animal activists “running out to a news outlet,” id. at 1175 [citation omitted]).
- 30.
Animal Legal Def. Fund v. Reynolds, 353 F. Supp. 3d 812, 816–17, 827 (S.D. Iowa 2019).
- 31.
S.F. 2413, 88th Gen. Assemb. (Iowa 2020). The newest Ag-Gag law is unquestionably less of a direct affront to free speech rights insofar as it targets certain trespasses for higher penalties, as opposed to criminalizing pure speech. But the legislative debate provides strong evidence that the motive for the law was similar.
- 32.
Glenn Greenwald, Hidden Video and Whistleblower Reveal Gruesome Mass-Extermination Method for Iowa Pigs Amid Pandemic, Intercept (May 29, 2020, 12:08 PM). https://theintercept.com/2020/05/29/pigs-factory-farms-ventilation-shutdown-coronavirus/ [https://perma.cc/9WFS-N7VU].
- 33.
AVMA Guidelines for the Depopulation of Animals, supra note 24, at 45.
- 34.
Petition from Animal Legal Def. Fund to Jared Polis, Governor of the State of Colorado (Summer 2019) (on file with the Harvard Law School Library) (petitioning the governor to support laws that “guarantee animal abusers are punished harshly”).
- 35.
The willingness of animal lawyers to prioritize incarceration cannot be fairly disputed. As one prominent group framed the agenda for years to come, “[our Criminal Justice P]rogram... inspired our famous bumper sticker: ‘Abuse an Animal, Go to Jail!’ And we mean it.” Stephen Wells, Letter from the Executive Director, The Animals’ Advoc., Summer 2006, at 1, 2.
- 36.
(Noting that social movement research has shown that the “moderate movement factions benefit from their radical counterparts”).
- 37.
See G. Alex Sinha, Virtuous Law-Breaking, Wash. U. Juris. Rev. (forthcoming) (manuscript at 17–24) (on file with the Harvard Law School Library).
- 38.
H.F. 737, 88th Gen. Assemb. (Iowa 2020).
- 39.
E.g., Animal Legal Def. Fund, Animal Protection: U.S. State Laws Rankings Report (2019). https://aldf.org/wp-content/uploads/2020/02/2019-Animal-Protection-US-State-Laws-Rankings-Report.pdf [https://perma.cc/M4RC-XPAD] [hereinafter Animal Legal Def. Fund, Rankings Report].
- 40.
Stephen Gruber-Miller, Iowa Senate Passes Bill Increasing Penalties for Animal Abuse, Neglect, Des Moines Reg. (Mar. 4, 2020, 9:08 PM). https://www.desmoinesregister.com/story/news/politics/2020/03/04/iowa-senate-passes-bill-strengthening-penalties-animal-abuse-neglect-torture/4952238002 [https://perma.cc/9WA2-JWU8]; see also Gov. Reynolds Signs Bill to Strengthen Iowa’s Animal Cruelty Laws, KCRG (June 30, 2020, 9:06 a.m.). https://www.kcrg.com/2020/06/30/gov-reynolds-signs-bill-to-strengthen-iowas-animal-cruelty-laws [https://perma.cc/8XDD-M24M].
- 41.
Animal Legal Def. Fund, Rankings Report (2019) on pages 26, 33. The rankings report provides only a cursory summary of its methodology, so it is not possible to replicate the findings or assess how the categories of evaluation are weighted or compared. Notably, however, none of the recommendations for improving rankings include, for example, abandoning standard agricultural exemptions. By contrast, the list of suggested improvements suggests a common theme. The surest path to a higher ranking, as Iowa recognized, is more felonies and higher criminal penalties.
- 42.
Several animal law groups released statements celebrating the amendments to Iowa’s code, and praising the increased penalty provisions. See, e.g., Updating Iowa’s Animal Protection Laws (Iowa), Animal Legal Def. Fund, https://aldf.org/project/updating-iowas-animal-protection-laws-iowa/ [https://perma.cc/5FVF-6DDY].
- 43.
Id.
- 44.
See Alec Karakatsanis, Why “Crime” Isn’t the Question and Police Aren’t the Answer, Current Affs. (Aug. 10, 2020). https://www.currentaffairs.org/2020/08/why-crime-isnt-the-question-and-police-arent-the-answer [https://perma.cc/L8XW-T228] (explaining how a focus on individualized incidents of “crime” distracts from more systemic problems and reinforces social power structures already in place); see also Marceau (2019, p. 6) (“Cruelty prosecutions allow for a collective transference or displacement of guilt from mainstream society onto the ‘other,’ the socially deviant animal abuser.”).
- 45.
See Rebecca Riffkin, In U.S., More Say Animals Should Have Same Rights as People, Gallup (May 18, 2015). https://news.gallup.com/poll/183275/say-animals-rights-people.aspx [https://perma.cc/2STM-WGCP].
References
Bagaric, M., Kotzmann, J., & Wolf, G. (2019). A rational approach to sentencing offenders for animal cruelty: A normative and scientific analysis underpinning proportionate penalties for animal cruelty offenders. South Carolina Law Review, 71, 385–427.
Baldus, D. C., Woodworth, G., & Pulaski, C. A. (Eds.). (1990). Equal justice and the death penalty: A legal and empirical analysis. UPNE.
Beirne, P. (1999). For a nonspeciesist criminology: Animal abuse as an object of study. Criminology, 37(1), 117–148.
Bryant, T. L. (2010). Denying animals childhood and its implications for animal-protective law reform. Law, Culture and the Humanities, 6(1), 56–74.
Black, D. (1976). The behavior of law. Academic Press.
Black, D. (1980). The manners and customs of the police. Academic Press.
Dunn, L., & Rosengard, D. B. (2017). Comment: A dog is not a stereo: The role of animal sentience in determining the scope of owner privacy interests under Oregon law. Animal Law Review, 23(2), 451–477.
Francione, G. (1996). Rain without thunder: The ideology of the animal rights movement. Temple University Press.
Gruber, A. (2007). The feminist war on crime. Iowa Law. Review, 92, 741–843.
Gruber, A. (2018). Equal protection under the Carceral state. University of Colorado-Northwestern University Law Review, 112(6), 1337–1384.
Gruber, A. (2020). The feminist war on crime: The unexpected role of women’s liberation in mass incarceration. University of California Press.
Kleinfeld, J. (2013). A theory of criminal victimization. Stanford Law Review, 65, 1087–1152.
Levin, B. (2019). Mens rea reform and its discontents. Journal of Criminal Law & Criminology, 109(3), 491–558.
Marceau, J. (2019). Beyond cages: Animal law and criminal punishment. Cambridge University Press.
NeJaime, D. (2013). Constitutional change, courts, and social movements. Michigan Law Revew, 111, 877–902.
Phillips, S., & Marceau, J. (2020). Whom the state kills. Harvard Civil Rights—Civil Liberties Law Review, 55, 2–69.
Ristroph, A. (2018). Farewell to the felonry. Harvard Civil Rights—Civil Liberties Law Review, 53, 563–618.
Sanders, S. R. (2020). The corporate privacy proxy. Cornell Law Review, 105, 1171–1210.
Satz, A. B. (2009). Animals as vulnerable subjects: Beyond interest-convergence, hierarchy, and property. Animal Law Review, 16, 65–122.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2022 The Author(s), under exclusive license to Springer Nature Switzerland AG
About this chapter
Cite this chapter
Marceau, J. (2022). Palliative Animal Law: The War on Animal Cruelty. In: Gacek, J., Jochelson, R. (eds) Green Criminology and the Law. Palgrave Studies in Green Criminology. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-82412-9_10
Download citation
DOI: https://doi.org/10.1007/978-3-030-82412-9_10
Published:
Publisher Name: Palgrave Macmillan, Cham
Print ISBN: 978-3-030-82411-2
Online ISBN: 978-3-030-82412-9
eBook Packages: Law and CriminologyLaw and Criminology (R0)