Animals have long been undervalued in both society and in the law. Animal advocates seeking legal recognition of the capacity of animals to suffer have frequently turned to the criminal law in recent decades. More convictions and longer sentences for animal abusers have been treated as markers of success in the battle for the social recognition of animals. For his role in a dogfighting enterprise, a Black man in Virginia, Eldridge Freeman, Jr., was recently sentenced to 108 years of incarceration, with 98 of the years suspended (meaning that he will serve at least 10 years, followed by probation and the threat of an additional 98 year sentence), and a fundraising email from a national group lauded the case, explaining that “the successful prosecution and appropriate sentencing in this case demonstrates what is possible when state laws are strong and animal cruelty is taken seriously.”Footnote 1
No one can doubt the good faith efforts of these advocates to protect animals. But the notion that animals are safer because of more vigorous prosecution, or that anthropocentrism is reduced by this sort of legal intervention, is speculative, to say the least. In the past, victims of hate crimes and domestic violence, among others, have also sought to use law, in particular criminal law, to advance their social change objectives. Among other goals, Part II seeks to understand the effectiveness of carceral social change projects outside of the animal law, so that animal lawyers might learn from these histories.
For example, advocates and scholars observe that there is reason to doubt “the hopefulness with which . . . largely white, activists in the…movement imbued [criminal] law” (Kuennen). There is a reflexive urge to assume, for example, that mandatory arrest, felony laws, no-drop policies, and other tough-on-crime innovations will yield progressive social change. But “any expectation of a reliable, protective response by police is a product of not merely white, but also heteronormative privilege,” and the effect of investment in criminal solutions is not merely neutral; rather, the focus on carceral strategies has been shown to be “crowding out” systemic solutions (Kuennen). Scholars from outside of animal law, such as those who study domestic violence, offer lessons about the way that top-down strategies that focus on convictions and incarceration risk alienating grassroots activists, feed the mass-incarceration system, and often fail to reduce the types of conduct they hope to end.
Drawing on lessons from the war on drugs and domestic violence, the chapters in this section can help animal lawyers by highlighting the mistakes of other movements. The chapters discuss some of the unintended consequences and limitations of carceral strategies. Animal lawyers seem to imagine that their carceral advocacy occurs in a vacuum, considerably distanced from the unseemly aspects of the criminal system. The race and unfairness problems that plague the criminal system don’t have much application in the animal prosecution realm, advocates have long assumed. But scholars of criminal law find such claims of animal law exceptionalism striking: “there is no reason to think that the enforcement of laws forbidding animal abuse is likely to be more equitable than any other sort of criminal law enforcement” (Kamin). Even if the expansion of animal crime laws and policing is genuinely motivated in every state by race- and class-neutral goals, the enforcement of an expanding web of criminality will have predictably disparate impacts. For some, traffic stops might seem like quintessentially race-neutral offenses; after all, one’s guilt has nothing to do with one’s race. Yet, experts in the field have long noted that as the substantive criminal law expands (more offenses and broader definitions of crimes), the protections of the Fourth Amendment diminish proportionately. So if it is a crime to stop a car with an air freshener, then law enforcement seeking to engage in pretextual stops can (and have been documented to) use the air freshner as a justification for stopping the car of persons who look out of place or whom the officer suspects of other crimes. And when an officer approaches a car or a home, the smell of drugs inside might produce the sort of probable cause that justifies entry. Expansions in the criminal law have predictable, and proven, impacts on marginalized communities. Thus, one author makes a poignant comparison between animal law and the war on drugs: “There is genuine risk that the barking dog will become the new smell of marijuana” (Kamin).
More generally, these chapters raise challenges to carceral animal law and their pursuit of tough-on-crime legislation. Is it truly helpful for animal advocates to team up with conservative republican lawmakers to pass new felony laws that are heralded as groundbreaking? Is it appropriate to support the firing of animal control officers and prosecutors who are deemed “too soft” on animal crime and to deride “slap on the wrist” punishments in cases of neglect (Gruber)? Important parts of the animal law movement have become a caricature of 1990s style tough-on-crime rhetoric, and this message has been reinforced by the leading groups in this country for decades (Gruber). These chapters also challenge the claim that animal cruelty enforcements are relatively rare, and mostly for affirmative abuse: “Since Libre’s Law 2017 passage, the state has prosecuted thousands of human animals – 21,206 to be exact. In 2017, the number was 967 cases, which spiked to 11,836 filings in 2018, and 8,405 in 2019. The majority of the cases (52 percent) were for neglect” (Gruber). Are these dramatic case increases a sign of animal rights on the rise or just another chapter in the nation’s mass incarceration story?
Likewise, the movement’s recent celebration of noncustodial sentences as a kinder and gentler approach to animal law is much less than it seems. “[A]nimal law is still far too carceral in its rhetoric and approach to law reform, and the pivot towards fines, fees, and probation is not nearly as salutary as the animal protection lawyers imagine” (Marceau). Simply put, “a critique of incarceration alone would actually let the movement off too easy” (Marceau).
Beyond carceral animal law and the efforts to acknowledge animal suffering through incarceration, Part II also considers the carceral logics inherent to “spectacular immigration enforcement” efforts at meat production plants (Chacon). The entanglements of meat production, poverty, and carceral strategies collide to produce a type of “violence” that is an oft-ignored feature of American meat consumption, and highlight the complex webs of carcerality that define our relations with animals (Chacon). The very prosecutors championed for bringing justice to animal victims are quick to point out that persons working in meatpacking plants without authorization “deserve prosecution,” or as the Trump Administration candidly put it, “the cruelty is the point.” Finally, another aspect of carceral thinking explored in Part II is the connection between caging humans (in prison) and caging animals. The cruel caging of monkeys for maternal deprivation studies helped fuel a “nascent animal rights movement,” and simultaneously “bolstered opposition to solitary confinement of human prisoners” (Winders). And the United States is the world leader in the solitary confinement of both humans and animals. But as this section shows, facile efforts to equate human and animal caging should be avoided, both because they are inaccurate and tend toward exaggeration (e.g., we treat humans worse than animals), and also because the comparisons inevitably result in a compassion competition that pits the interests of humans and nonhumans against each other (Winders).
This section complicates the conventional narratives about carceral strategies. Law reform in this area may not be as beneficial for animals nor as enlightened and progressive for humans as prior discourse assumes. Likewise, the perils of human incarceration and meat production should not be underestimated, but the unimaginative and anthropocentric framing of the problem as one of treating humans like animals obscures more than it illuminates. Carceral logics are everywhere in law and are increasingly saturating social consciousness. They represent a hope for simple narratives (and solutions) to complicated social problems, and Part II confronts this dilemma directly.
This chapter analyzes recent, spectacular immigration enforcement efforts at the paradigmatic sites of animal caging and killing: meatpacking and poultry processing plants. Over the last four decades, the growing role of immigrant workers in these industries has paralleled the rise of a massive immigration enforcement machine in the United States. Though the US government now expends more than $18 billion on immigration enforcement every year, immigration enforcement at these sites is selective and sporadic.
This is by design. The infrequent but highly visible nature of immigration enforcement at meatpacking and poultry processing plants ensures that workers live and work in fear of the possibility of deportation. Employers generally can count on the continued existence of a sizable, yet legally vulnerable, immigrant workforce. Immigration enforcement is an essential ingredient in the making of meat and poultry in the United States, not only because it produces the material conditions for workplace exploitation, but also because it is performed in ways that contribute to social structures of racial inequality and domination at the heart of the workplace exploitation that produces cheap food.
Spectacular immigration enforcement – large-scale, highly publicized immigration enforcement efforts in concentrated geographic spaces – plays an important role in the maintenance of the racial order of the United States and of the global region that it dominates. These enforcement efforts, like prison walls and border walls, act as high-visibility markers of sociopolitical exclusion and inclusion. Spectacular immigration enforcement has a direct, material effect: through these efforts, officials signal the condition of deportability to immigrant workers without significantly undercutting the industry’s labor supply. But they also have a more diffuse effect on the structure and understanding of power and of belonging.
By focusing on spectacular immigration enforcement efforts at sites of animal slaughter, this chapter sheds light on how immigrant deportability is facilitated by and reinforces structural racism. It also underscores the salience of race in shaping how people see – or fail to see – the exercise of state and private violence. This is not, of course, the only place where spectacular immigration enforcement occurs, but this analysis of one exemplary site helps limn particular elements of the role of racial spectacle in immigration enforcement choices.
The chapter proceeds in four parts. Section 6.2 briefly summarizes the changes in industrial meat and poultry processing over the past forty years, as the workforce makeup of the industry has shifted from predominantly white to predominantly Black, Asian and Latinx, with a sizable undocumented workforce. Section 6.3 discusses how the confluence of labor recruitment and immigration regulation at these sites (and elsewhere) has generated a “deportable” workforce. Section 6.4 describes several recent examples of spectacular immigration enforcement at meatpacking and poultry processing sites, with attention to the mechanism through which these enforcement efforts contribute to the illegalization and criminalization of Latinx workers in particular. Section 6.5 analyzes the ways that spectacular immigration enforcement is publicized and explores how this messaging both draws from and reinforces racism.
Sites of animal slaughter are designed to stay out of sight. They come into focus only when light is shined deliberately upon them. Spectacular immigration enforcement focuses an intense light on certain aspects of meat and poultry processing, but does so in a deliberately deceptive way – one that offers a biased and incomplete vision of work in the US heartland. These efforts conceal as much as they reveal, reaffirming racial scripts even as they obscure recurring patterns of cruelty and transnational capitalist exploitation.
6.2 Changing Industry, Changing Workers
Most people are familiar with the horrors of early-twentieth -century meatpacking, exposed by Upton Sinclair in his watershed 1906 book, The Jungle.Footnote 1 The abusive working conditions, the endemic mistreatment of nonhuman animals, and the unsanitary production processes that Sinclair documented helped to galvanize a push for greater regulation – of a piece with similar efforts in other industries. This progressive regulatory impulse, running alongside the economic collapse of the Great Depression, ushered in the demise of the Lochner era,Footnote 2 and generated a new wave of judicial tolerance for the increased regulation of meatpacking and other industries.Footnote 3
In the years that followed, the meatpacking industry became a somewhat better place for humans to work, even as the growing size and productivity of the industry increased the scale of immiseration of nonhuman animals. A great deal of animal slaughter and processing occurred in urban centers, often overseen by a unionized workforce.Footnote 4 The work was difficult and dangerous, but relatively well compensated. Increasing regulation of the industry resulted in improved working conditions for humans as well as some improvements in the treatment of nonhuman animals.Footnote 5 But in the 1960s, things began to change.Footnote 6
First, as was the case in the manufacturing sector more broadly, the meat processing industry consolidated. In 1970, the four largest meatpacking companies controlled 21 percent of the beef market; today four companies control more than 80 percent of the market.Footnote 7 Second, the site of processing shifted. Previously, animals were shipped from the rural areas to cities, where they were butchered and distributed. But in the 1970s and 1980s, the industry relocated the packinghouses to the areas where livestock was raised, transitioning to a system in which meatpackers do most butchering at the site of animal husbandry and slaughter.Footnote 8 These new sites of butchering are largely – and not coincidentally – situated where unionized work forces are rare.Footnote 9
Newly consolidated companies staunchly opposed unionization at these worksites, and the unionization of the workforce in meatpacking facilities entered a period of steep decline, making it more difficult for workers to negotiate for better wages and working conditions.Footnote 10 In the early 1960s, 95 percent of meatpacking workers outside the South belonged to one of two unions.Footnote 11 By the late 1960s, these unions experienced significant declines in membership.Footnote 12 In the 1980s the final straw for unions in the industry came in the form of nonunion plants overtaking unionized ones.Footnote 13 Wages plummeted.Footnote 14
The decline of worker bargaining power coincided with a steady increase in demand for beef, chicken, and pork – not only nationally, but globally. The resulting managerial insistence on speed in the slaughtering and processing of animals made the workplace increasingly dangerous, as workers were asked to meet rising productivity quotas.Footnote 15 With declining relative wages and working conditions, the industry experienced a white flight. The white working-class men who had largely staffed meatpacking plants left these jobs in droves. Plant operators tried to meet their labor needs by hiring white women – some plants even experimented with daycare centers – but this also proved inadequate to the needs of the industry.Footnote 16 So meat processing companies began to recruit nonwhite workers, investing heavily in the recruitment of Latino workers.Footnote 17 They initially targeted workers in large urban centers like Los Angeles and Chicago. Finding those labor sources inadequate, recruiters expanded their efforts to target incoming refugees from Asia and Africa, as well as workers willing to move from Mexico and Central America.Footnote 18 Ruth Milkman notes that these workers are often blamed for displacing US workers, though in fact, the changing nature of the industry drove US workers away before immigrant workers were recruited to fill these jobs.Footnote 19 These workers actually saved many industry-adjacent jobs.Footnote 20
Comparable shifts were under way in the poultry industry, though on a slightly different timetable. That industry also experienced corporatization and centralization after the 1970s.Footnote 21 Tyson Foods, Pilgrim’s, Perdue, and Sanderson Farms, the four largest poultry companies, today employ more than 100,000 poultry processing workers and control almost 60 percent of the market.Footnote 22
As with the slaughterhouses that process the meat of cows and pigs, poultry plants were also concentrated in states with legal regimes hostile to unionization. Anti-black racism has functioned as an effective tool for frustrating unionization efforts, pitting white workers against the Black workers who were increasingly entering the business in the 1960s after a long period of racial exclusion.Footnote 23 White workers with better job options than their Black coworkers (who confronted widespread racism) increasingly left the industry, and industry elites successfully discouraged efforts by the remaining workers to unionize.Footnote 24 Wages continued to stagnate; working conditions continued to be terrible.Footnote 25 Since the 1990s, following the trend set by the meatpacking plants of the Midwest, companies sought to fill their labor through the recruitment of refugees in the United States and foreign labor.Footnote 26 “By 2000, over half of the country’s quarter-million poultry workers were immigrants, the vast majority of these foreign-born Hispanics.”Footnote 27
The changing labor needs of increasingly corporatized meat and poultry production in states politically hostile to unionization coincided with changes to immigration law that, for the first time, imposed numerical quotas on workers from Mexico and Central America.Footnote 28 Unable to fit within the immigration quota categories designed for workers with high levels of formal education, and lacking the familial networks that would allow for lawful family-based immigration, these workers often came to the United States outside legal channels.Footnote 29 Mexican nationals constituted the overwhelming majority of these workers in the 1970s and 1980s,Footnote 30 though recruiters have increasingly focused on Central America as a site for worker recruitment in more recent years.Footnote 31
Unsurprisingly, then, many of the people who work in meat and poultry processing today are undocumented.Footnote 32 The prevalence of undocumented workers in the industry is widely known and unofficially tolerated. Indeed, these industries extract profits from workers through the exploitation of the deportability of large segments of the workforce. The precarity of the undocumented immigrant workforce is echoed to some degree throughout the workforce. Immigrants present on temporary work visas are also quite vulnerable to industry exploitation, even though they are legally authorized to work.Footnote 33 Refugees who have not yet become lawful permanent residents are also extremely vulnerable.Footnote 34 And lawful permanent residents and citizens experience the lack of bargaining power that comes with working in a heavily deportable workplace.Footnote 35 In other words, the precarity of the workforce extends far beyond and is amplified by the precarity of the undocumented workers in that workforce.
6.3 Deportability and Race in the Realm of Industrialized Slaughter
An extensive literature documents the gap between the size of the unauthorized workforce in the United States and the scale of the governmental enforcement efforts that would be needed to achieve anything nearing perfect enforcement of the immigration laws as they are written. Public resources are insufficient to accomplish even a fraction of this goal. And that is true even looking only to the undocumented population, before one even considers the many immigrants authorized to live and work in the country, but potentially removable for other reasons. These resource choices reveal that the removal of all “deportable” workers is not now and has never been the goal of the federal government.
The threat of deportation,Footnote 36 often unrealized but omnipresent, in combination with the increasingly ubiquitous enforcement technologies of both governmental and private actors, instead operates as a mechanism of exploitative labor extraction. Nicolas de Genova has used the concept of “deportability” to explain the precarious and designedly exploitable condition of undocumented workers in the United States. Deportability is generated through a process of “illegalization” – official acts and policies instantiated by public and private actors that define certain segments of the population as existing outside of and in violation of the law, thereby exposing them to a constant threat of deportation. De Genova explains:
It is precisely because of their distinctive legal vulnerability, their putative “illegality” and official “exclusion,” that inflames the irrepressible desire and demand for undocumented migrants as a highly exploitable workforce – and thus ensures their enthusiastic importation and subordinate incorporation. And this is above all true because of the discipline imposed by their ultimate susceptibility to deportability.Footnote 37
Deportability is a state-created condition that is leveraged by public and private actors to maximize labor extraction from a precarious group. In the United States, the exploitation of “deportable” workers is facilitated by the fact that many of these workers are barred from formal political participation. Their efforts to reshape policies to take into account their needs and reward their efforts are often thwarted by their political exclusion.Footnote 38 Political exclusion, in turn, is compounded by the language barriers encountered by those residents with limited ability to speak English.
The exquisitely refined legal vulnerability of undocumented migrant labor – above all, materialized in its deportability – plainly serves to radically enhance the preconditions for its routinized subordination within the inherently despotic regime of the workplace...But this deportability likewise emerges as a telltale site where the totalizing procedures of otherwise partitioned “politics” and “economy” enter a zone of indistinction.Footnote 39
This account of “deportability,” which has been extensively redeployed throughout the literature on migration, offers a materially grounded account of contemporary migration management in which deportability is both a mechanism of political exclusion and a tool of labor exploitation, with the former reenforcing and facilitating the latter.
What is missing in the story of deportability recounted thus far, but readily evident in the history of the slaughterhouse and poultry processing industry, is the role of race in the production of deportability and the relationship between deportability and racism. Though the “illegalization” that generates deportability is a racialized practice, in many discussions of deportability, issues of race and racism are sidelined. Generally, race is treated as an epiphenomenon, notable to the extent that social constructions of race facilitate the targeting of the mechanisms of illegalization. But race is central to, constituted by, and productive of this set of material arrangements. The dual economic and political marginalization of racialized immigrant workers flows out of and reinforces US racism.
Racism is ideological, but it is not simply ideology. It has structural manifestations. As Moon-Kie Jung explains, racism includes “the structures of racial inequality and domination, not only the ideological component. Like other structures, racism is the reiterative articulation of schemas and resources through practices.”Footnote 40 An analysis of immigration enforcement in the places where animals are killed to create meat and poultry reveals the racial project that undergirds and is fueled by the social construction of deportability.
As previously noted, the vulnerable immigration status of many line workers exists in a context of workforces that are now predominantly nonwhite. Jobs in meatpacking were shaped into less desirable positions as a result of deunionization, deregulation, and corporate restructuring at the very time that those jobs became a part of a whole new category of low-wage work stereotyped as “brown-collar” work in which Latinx workers dominate the industry.Footnote 41 Immigrant workers lacking formal education have increasingly filled the least desirable jobs in these undesirable workplaces, jobs that do not require English language skills.Footnote 42 English-speaking US workers typically work in other sectors, where English is required. Because English language ability is a key component of labor-market segregation, labor-market mobility is possible for some immigrant and Latinx workers who have work authorization and English proficiency.Footnote 43 Undocumented workers and non-English speakers, however, continue to fill the dirty and dangerous jobs that “are shunned by even the least educated U.S.-born workers.”Footnote 44 And ultimately, even those workers who are lawful permanent residents or citizens experience the vulnerability produced by racial exclusion and overcriminalization. This is true in the narrow sense that vulnerable workers can sometimes make unionization and other worker-protective moves more difficult within a given workplace.Footnote 45 But it is also true in a broader sense, insofar as the tools for surveilling and controlling unauthorized workers are often turned against citizens. Footnote 46
Slaughterhouses and poultry processing plants are far from the blue-state cities that are often the epicenter of analyses of deportability, illegalization, and securitization.Footnote 47 But as the historical account in the previous section makes clear, they operate in intimate and complex symbioses with those urban centers, and have histories deeply intertwined with them. At the same time, these sites are very different from the urban spaces where many recent studies of “deportable” workers are situated. One of the key features of the contemporary slaughterhouse or poultry processing plant is its relative social invisibility. As Tim Pachirat has argued, even when slaughterhouses are located within the bounds of relatively populous cities, they are designed to be low-visibility. “Facing outward, th[e] industrialized slaughterhouse blends seamlessly into the landscape of generic business parks ubiquitous in Everyplace, U.S.A., in the early twenty-first century.”Footnote 48
Patterns of immigration enforcement at these sites disrupt their near invisibility. Given the relatively high percentage of unauthorized workers in these spaces who lack official authorization to live and work in the United States, one might imagine that these workplaces would be prime targets for immigration enforcement. But that is not the case. Agribusinesses, slaughterhouses, and poultry plants are seldom sites of immigration enforcement. When enforcement actions do occur, they are usually low-visibility affairs, often initiated at the behest of managers and owners seeking to quell labor organizing efforts or complaints about working conditions.Footnote 49 But occasionally, the federal government leads highly-publicized immigration enforcement efforts at these sites. These efforts shine a bright, but selective, spotlight on spaces that are generally hiding in plain view. These spectacular immigration enforcement efforts are not only designed to serve as a reminder to immigrant workers of the threat of deportation, but also to validate and reinforce broader racial messages of belonging and exclusion. These enforcement efforts tap into and reproduce existing racial narratives of belonging and worth, and they directly contribute to material arrangements that reinscribe racial hierarchy.
6.4 Spectacular Immigration Enforcement at Sites of Industrialized Slaughter
Spectacular immigration enforcement is distinct from the immigration enforcement that occurs when government agents execute a few warrants, sometimes taking in a few, additional, “collateral” arrestees. Spectacular immigration enforcement involves planned, coordinated, high-visibility, high-publicity enforcement efforts. In the workplace, these efforts involve large numbers of heavily armed federal, state and local law-enforcement officials. They result in the arrest, sometimes the prosecution, and always the removal, of hundreds of people at affected sites. In instances of spectacular enforcement, the federal government generally has a small number of warrants targeting a handful of managers, or even owners, of a plant, usually for violations of tax laws or of the 1986 Immigration Reform and Control Act’s requirement of employer verification of worker authorization. But these enforcement efforts unfold through the large-scale, on-site arrests of hundreds of employees – for whom no warrants exist – on the grounds that those workers are unable to demonstrate at the time of the raid that they are legally authorized to live and work in the United States. Though punishment may ultimately be imposed on the midlevel managers or relatively small-time business owners that are the purported target of the precipitating warrants, the mass removal of immigrant workers from subordinated racial groups is the most significant and visible fruit of these raids.Footnote 50
The enforcement is “spectacular” in that government officials seek to create a spectacle through their efforts. With heavy armaments brought to bear against hundreds of unarmed civilians, these enforcement efforts prop up a narrative that immigrant workers are “dangerous” to the public. As litigation documents at the site of these efforts make clear, officials target only those workers who fit the preexisting racial script of criminalized immigration enforcement – those who are deemed to be “foreign.”Footnote 51 This often means that they single out Latinx workers, notwithstanding the fact that many of those workers are, in fact, legally authorized to work. By sorting workers into the presumptively “legal” and the presumptively “illegal,” using race as a sorting device, officials participating in these enforcement efforts not only draw from, but also reinforce, narratives of belonging and exclusion.
The racial spectacle of enforcement is enhanced through the extraordinary efforts undertaken to secure the rapid, mass prosecution and removal of as many workers as possible. Judges and prosecutors, who are largely white, preside over improvised spaces where nonwhite workers are brought before them in streamlined fashion – and sometimes only via videoconference – so that they can plead guilty to criminal charges or engage in largely futile efforts to challenge their deportation. Government officials deliberately make examples of these workers, citing their violations of civil immigration law and their use of borrowed social security numbers as moral wrongs that justify the separation of their families and upending of whole communities.
Spectacular immigration enforcement is nothing new. The efforts of US states and the federal government to exclude Chinese immigrants – and to banish long-term Chinese residents – at the end of the nineteenth century included clear, early examples of such efforts. The Palmer raids of the 1920s, the so-called Mexican repatriation of the 1930s, and “Operation Wetback” and accompanying enforcement efforts in the 1950s all epitomize spectacular immigration enforcement. The racial motivations and effects of these earlier examples are clear, and official efforts were often accompanied by massive private violence against the targets of enforcement.Footnote 52
In the post–Civil Rights era, express targeting of individuals on account of their race ended. There was no more “Chinese Exclusion” or “Mexican repatriation.” But immigration status facilitated the targeting of workers in ways that reproduced expressly racist immigration policies. In the 1970s and 1980s, enforcement patterns settled into regular, disruptive factory raids, like the one that the Supreme Court endorsed in the 1984 case of INS v. Delgado, where racial profiling served as the key to both site selection and the selection of workers to target within sites.Footnote 53 The passage of the Immigration Reform and Control Act of 1986,Footnote 54 which for the first time penalized (and, in some instances, criminalized) the hiring of unauthorized workers, did little to change prevailing patterns of enforcement. Wealthy farmers, ranchers, and business owners continued to use their political power to oppose unwanted enforcement actions in their jurisdictions. Enforcement functioned selectively and sporadically, much more as a tool for labor control than a means of regulating migration.Footnote 55 Mexican workers were the primary target of these efforts. These enforcement efforts took advantage of the Supreme Court’s prior legitimation of extraordinary policing practices targeting of people perceived as “Mexican” in immigration enforcement and related criminal legal investigations.Footnote 56
When the September 11, 2001, attacks on the United States prompted a reorganization and massive expansion of the immigration enforcement bureaucracy, new purposes had to be found for new resources. In addition to substantial border militarization, the expansion of detention capacity, and the further externalization of US border-control efforts, this also meant new forms of interior enforcement.Footnote 57 The resulting, invigorated interior enforcement included the creation and national implementation of the Secure Communities program. Under Secure Communities, every state and local arrest is now checked against a federal immigration enforcement database, allowing federal officials to request that targets of interest be held by state or local officials pending transfer to federal custody.Footnote 58 The Secure Communities program is the point of origin for the majority of deportations from within the United States today.Footnote 59
Interior enforcement also expanded in the form of increased direct enforcement efforts by federal immigration officials, largely in the workplace. Though direct enforcement results in far fewer removals than the less visible Secure Communities program, these direct enforcement efforts are significant precisely because of their visibility. In contrast to Secure Communities, which works in quiet, technocratic fashion in the jail spaces that already operate on the edges of public consciousness, direct enforcement efforts aim to bring less-visible social spaces into the light. Here again, race operates to sort the targets of enforcement.
One of the most significant example of spectacular immigration enforcement during the presidential administration of George W. Bush took place on May 12, 2008. On that day, government officials orchestrated a massive raid on a meatpacking plant in Postville, Iowa. The raid resulted in the arrest, criminal prosecution, and removal of hundreds of immigrant workers and drew significant media and scholarly attention.Footnote 60
The raid was described vividly by Erik Camayd-Freixas, who went to Postville to serve as a translator in administrative proceedings. He writes:
On May 12, 2008, this tiny Heartland farm town, secluded amid the rolling hills and cornfields of northern Iowa, became the site of the largest immigration raid in U.S. history. Of the 389 people arrested, three-quarters were Kaq’chikel ethnic Mayans from the hills of Chimaltenango, Guatemala. Only five (1.2%) had minor criminal records. Yet they were all arraigned on felony charges of identity theft, making this an unprecedented criminalization of migrant workers. Despite begging to be deported, these Agriprocessors employees were jailed for 5 to 12 months while their families suffered severe hardship. A decision made in Washington, D.C. destroyed the livelihoods and hopes of hundreds of working families and sank well over a thousand children, from Iowa to Guatemala, deeper into poverty and malnutrition, while serving to perpetuate the generational cycle of labor migration.
The direct cost of this raid to taxpayers, including prosecution and detention, is close to $10 million. But government expense was dwarfed in comparison to the economic impact on the tri-state region. Unable to replace its workforce and facing mounting civil and criminal penalties, the employer, Agriprocessors kosher slaughterhouse, was forced into bankruptcy. This yielded a projected $300 million a year in regional loss of business for family farms and ordinary Americans, as well as an additional estimated annual loss of $7 million in remittances to some of the poorest families in Mexico and Guatemala. The raid will have lasting economic, social and political impacts at local, regional, national and international levels. It is a landmark case.Footnote 61
Bill Ong Hing situates this raid in the broader context of agricultural workplace raids undertaken by the George W. Bush administration in the period leading up to and including the Postville raid. ICE conducted several major raids at meatpacking plants in the period from 2004 to 2008, perpetuating “racial profiling,... trauma to children and families, [and] damage to communities.”Footnote 62 At the meatpacking and poultry processing raids he describes, the workers targeted were exclusively Latino. For example, Hing describes the Swift raids of 2006, in which numerous ICE agents executing warrants for fewer than 1 percent of the company’s employees rounded up and detained some 13,000 workers in Swift plants across Iowa.
The sheer number of ICE agents on the scene and the manner in which the operation was conducted made clear that the execution of those warrants was not the government’s real purpose. Rather, the raids seemed designed to ramp up the number of arrests and capture the headlines on the evening news.Footnote 63
Hing also documents an evening raid on a community of Latino workers at a poultry processing plant in Stillman, Georgia, in 2006, in which 125 workers were arrested, and a 2007 raid in New Bedford, Massachusetts, where 500 ICE agents descended on a leather goods factory and detained hundreds of workers, primarily from Central America.Footnote 64 Although significant immigration enforcement efforts occurred elsewhere,Footnote 65 sites of animal slaughter and processing were the staging grounds for many of the largest and most spectacular immigration raids orchestrated by the new Department of Homeland Security under President George W. Bush.
President Obama’s administration largely backed away from this kind of large-scale, spectacular raid. The workplace enforcement efforts of Postville and New Bedford made way for “silent raids” – in which government inspectors examined workplace documentation at many different kinds of businesses for paperwork irregularities around employee work authorization. Indeed, rather than engaging in spectacular raids of agrobusinesses, meatpacking plants, and poultry processing facilities, the Obama Administration sometimes opted for strategies that strengthened the protections of workers in those workplaces, including by allowing the Department of Labor to provide law enforcement certifications to enable workers alleging wage, hour, and conditions violations by their employer to access U visas.Footnote 66 Immigration enforcement shifted, for a time, from a tool of pure labor subjugation to a tool that, at the margins, could occasionally empower a small number of workers in the workplace.
The broader enforcement strategy of the Obama Administration, however, increasingly criminalized immigrant workers, particularly through heavy reliance on state and federal criminal law as an immigration enforcement sorting mechanism after the widespread implementation of the inaptly named Secure Communities program.Footnote 67 Consequently, the administration’s ameliorative shifts in workplace enforcement strategies were eclipsed by the effects of an immigration enforcement strategy that parroted and amplified racialized tropes of migrant criminality specifically, and the criminality of Black and Latinx individuals more generally. Obama-era policies may have disfavored the racial theater of spectacular enforcement, but the administration’s more technocratic and automated enforcement efforts, coupled with its strategy of detaining families to deter Central American asylum seekers at the southern border, relied upon and continued fueling the underlying racial narrative of immigration enforcement. Immigrants from south of the US-Mexico border were treated as dangerous risks to be managed, and the task of risk management was delegated largely to the criminal justice infrastructure that the administration, ironically, was simultaneously critiquing on the grounds of its racial disproportionality.
When the Trump Administration came into office, the federal government abandoned any pretense of seeking to protect unauthorized immigrant workers.Footnote 68 The administration’s enforcement strategies shifted back into full alignment with corporate interests and away from any form of workplace protection. The Trump Administration brought back the spectacular raids of the George W. Bush era, and combined these efforts with an overtly racist rhetoric that made no effort to hide the objective of these raids: to degrade, demean, and criminalize immigrant workers, particular Black and Latinx immigrant workers, around the country.Footnote 69 At the same time, most companies and company executives that employed unauthorized workers continued to thrive. Indeed, President Trump even pardoned Sholom Rubashkin, the highest-ranking official to be prosecuted in connection with the Postville raids, whose twenty-seven-year prison sentence had, in fact, been an extraordinary deviation in a world where executives generally receive no criminal penalties for their employment of unauthorized workers.Footnote 70 Unsurprisingly, none of the hundreds of immigrant workers convicted of charges like identity theft received pardons.
Three examples of immigration raids that took place under President Donald J. Trump – an April 2018 raid of a meatpacking plant in Bean Station, Tennessee; a June 2018 raid at a meatpacking plant in Salem, Ohio; and a massive, seven-site raid of poultry processing plants in Mississippi in August 2019 – illustrate the Trump Administration’s elevation of spectacular enforcement to new prominence.
On April 5, 2018, federal immigration enforcement officials raided a meatpacking plant in Bean Station, Tennessee, in which they arrested and placed ninety-seven workers into removal proceedings. The pretext for the raid was the service of warrants on the owners of the facility for tax violations, yet workers were rounded up en masse by the agents at the facility. A lawsuit filed in federal court, Zelaya v. Hammer, offers detailed assertions that only the Latino workers at the meatpacking plant were detained, and that they were detained regardless of their immigration status.Footnote 71 Some were allegedly assaulted by ICE officers.Footnote 72
When it occurred, the Bean Station raid was the immigration service’s largest raid since 2008,Footnote 73 but this record did not last long. On June 19, 2018, more than 146 workers were arrested by ICE agents at four northern Ohio locations of the Fresh Mark pork processing company. “ICE agents arrived at the meat plant with federal and state search warrants, but without providing any notice to the owners. The ICE agents descended upon Fresh Mark in helicopters with attack dogs and assault rifles, giving the impression that employees of the meat supplier were not free to leave.”Footnote 74 In addition to placing the workers in removal proceedings, the federal government filed criminal charges against thirteen people for making false claims of citizenship and using the identity documents of another person.Footnote 75
Both of these raids were subsequently dwarfed on August 7, 2019, when federal agents arrested 680 immigrant workers from seven chicken processing plants in Central Mississippi.Footnote 76 Although ICE purported to be executing warrants for a handful of middle managers, those individuals were not even arrested on the day of the raids.Footnote 77 And while four of these managers were eventually indicted for immigration related crimes, it was the workers who bore virtually all of the civil and immigration consequences of the raids.Footnote 78
Workers arrested in the Mississippi raids were bused to a local Mississippi National Guard hangar to be interviewed about their immigration status.Footnote 79 During the 2008 Postville raid, hundreds of people had been criminally tried and subjected to civil removal orders at the plant site.Footnote 80 The 2019 Mississippi raids replicated this use of improvised courts in unusual spaces to assure quick case processing. US Immigration and Customs Enforcement Deputy Director Matthew Albence reported that on the same day as the raid itself that the federal government had already issued 126 indictments and obtained 73 convictions.Footnote 81
Thus, in the course of just over a year, the federal government deployed significant personal, weaponry, and fiscal resources to secure the arrest of more than a thousand, and the removal of hundreds of immigrant workers – mostly Mexican and Central American – in a highly visible series of workplace raids at meatpacking and poultry processing plants.
The violence that these raids inflicted on immigrant workers is undeniable. For example, after the initial, stunning arrest of 680 workers in Mississippi, about 300 were released over the course of the day that followed on “humanitarian grounds,” so that they could go home while awaiting their removal proceedings. But
the Clarion Ledger and USA Today found that in some instances, breastfeeding mothers and single parents were kept in detention. Care of the children sometimes fell to extended family, friends or a neighbor. After the raids, chicken plants laid workers off. Hundreds of families were left without a source of income and had to rely on donations collected by local religious organizations and nonprofits to pay their bills and put food on the table.Footnote 82
And, of course, hundreds of families were sundered and displaced as a result of the raid. Professor Camayd-Freixas’s assessment of the economic and social devastation wrought by the Postville raids has been replicated in the aftermath of these other raids as well: the increased impoverishment and immiseration of working families already living on the edge; lost remittances in countries suffering from the ongoing harms of neocolonial exploitation and climate change; and lost jobs due to declining productivity of the processing facilities.
6.5 Racialized Deportability
What justifies the imposition of such large-scale harm on communities of workers? Local reporting on these raids captures how government employees construct a narrative of harm and criminal wrongdoing to justify their own violent acts. A year after the coordinated Mississippi raids, on August 7, 2020, federal officials hosted a high-profile press conference in Jackson, Mississippi, to announce the resulting criminal prosecutions. These officials staged the press conference in a way that drew upon and reinforced the racial logics of the broader immigration enforcement narrative.
At the press conference, seven middle-aged white men flank a middle-aged white male prosecutor, Michael Hurst, who stands at a podium outside the federal courthouse announcing the indictment of four middle managers at the poultry plants, and more than one hundred immigrant workers charged with document-related criminal offenses, but no indictments for corporate executives. All of the men are masked for COVID protection, even as many of the targets of their enforcement efforts languish in COVID-ridden detention facilities.Footnote 83 Midway through a thirty-eight-minute press conference, Hurst swaps places with Matt Albence, another middle-aged white man and the Acting Director of ICE. The two men then exchange places at the podium while taking questions from the press.
The men at the podium stress the criminality of their targets and posit that “American citizens” were their victims. US Attorney Mike Hurst claims that he is “pro-legal immigration all day long” while citing the need to prosecute those who immigrate without legal authorization.Footnote 84 He criticizes the “sensational” new stories that focused on the disruption of the lives of hundreds of families and the surrounding communities, and suggests that the true harm was experienced by “American citizens victimized by identity fraud,” including “an 8-year-old boy, a teen who was trying to enter the U.S. Navy and a woman with mental health issues who lost her social security benefits and medicine because of the fraud.”Footnote 85 Albence, the Acting ICE director, emphasizes the fact that “illegal immigration…feeds criminality” by funneling money to human traffickers who smuggle people across the border.Footnote 86 Neither Hurst nor Albence acknowledge the fact that neither document fraud nor smuggling would be necessary but for arbitrary limits on immigration. Restrictive US immigration laws illegalize migrants. By criminalizing people for lacking access to documents that are not available to them, federal and (increasingly) state governments engage in what Amada Armenta describes as making lawbreakers.Footnote 87
Acting ICE Director Albence goes on to analogize the poultry plant workers’ borrowing of other people’s social security numbers – numbers used to secure difficult, dirty, and dangerous work – to stealing a high-end car. The Clarion-Ledger reported his words:
“I may want to go out and buy a Jaguar tomorrow,” Albence said. “I don’t have the money to buy a Jaguar. Does that mean I can go out and steal money, because I don’t feel like waiting until I earn enough money to go buy a Jaguar? You just can’t commit crime because you don’t have the ability. There’s a legal way to do it.”
Albence’s analogy is revealing. First, it equates the act of securing work to fulfill human needs for food, shelter, and physical security with the purchase of a luxury car. In this way, Albence positions basic human needs as undeserved luxuries for these workers. He simultaneously promotes what he, as ICE director, must know to be a falsehood when he suggests that these workers could have legally immigrated if they had so chosen. In fact, for most of these workers there was and still is no “legal way” to immigrate and obtain status to work. This rhetorical move is important because it presents the workers as line jumpers and usurpers,Footnote 88 and therefore entirely undeserving of these jobs, while masking another well-known fact: the industry deliberately recruits them to perform this work in spite of, or perhaps more properly because of, their immigration status.Footnote 89 Indeed, many of the workers initially arrested in the Mississippi raids actually were allowed by their employers to return to work with new sets of false documents when the COVID-19 pandemic resulted in worker shortages, illustrating the primacy of the labor management function of these raids over their immigration control function.Footnote 90 Albence never acknowledges this fact.
Albence also glosses over the reality that in the vast majority of these document offense cases, a worker’s act of borrowing identity documents generates no actual harm or loss to the person whose identity is borrowed, and the worker intends no such harm or loss. While some people occasionally engage in acts of identity theft for monetary gain, that is not what is happening in the overwhelming majority of these cases. In fact, Albence’s analogy actually would be more apt if applied to the corporate executives who knowingly recruit and rely upon an unauthorized workforce in order to increase their profit margins. The analogy even works for the consumers of beef and poultry (presumably including Hurst and Albence) who can save money for their own new cars because the work of unauthorized immigrants makes their food cheaper. There is plenty of wrongdoing to go around. But with few exceptions, it is the Latino worker that bears the brunt of the punishment, with significant spillover effects upon the lives of their coworkers and community members.
The Jaguar theft analogy, in all of its flaws, brilliantly limns what is actually going on in cases of spectacular immigration enforcement. The racialized deportability that is reconstructed in every instance of spectacular immigration enforcement is an important element of broader racial schema. US Attorney Hurst speaks about how people who immigrate to work without authorization “deserve prosecution,” and he clearly holds out the mass raids and the ensuing prosecutions as sending a signal designed to deter these types of legal violation. But the workers are not really the intended audience for this press conference, and the messages telegraphed by the press conference are different from those that Hurst explicitly conveys. At every level, the press conference seeks to legitimate the racial violence that unfolded on the day of the raids – in which a white power structure engages in a massive deployment of force, caging, and family separation aimed exclusively at nonwhite workers. The intended recipients of this message are not just the workers in meatpacking plants and processing facilities; this message is intended for white Americans anxious about their racial status.
Of Trump’s enforcement policies, Adam Serwer once famously wrote that “the cruelty is the point.”Footnote 91 He observed the ways that white US citizens often have had the opportunity to bond around racialized spectacles of cruelty. Using the example of white mobs leering joyously at the sight of the lynching of Black people, he posits that Trump’s policies operate as a continuation of such efforts – allowing racial in-groups to bond over the violent subjugation of racial outsiders.Footnote 92 The mass mobilization of enforcement agents and the high-profile press conferences that accompany these spectacular immigration enforcement efforts benefit those members of the community who derive psychic benefit from the humiliation of members of other racial groups. Enforcement efforts at slaughterhouses tend to be quite costly for communities, and they do not lead to significant new jobs for authorized workers. But they do important work to shore up the same exclusionary narrative that is threaded through the fabric of life in the United States. Without undercutting the availability of a precarious workforce, these sporadic, spectacular, and performative enforcement efforts operate as an important form of racial theater, and in so doing, reify foundational racial scripts.
The Jaguar story, as told by Albence on the steps of the Jackson courthouse, is perfectly crafted to reaffirm the power of the dominant racial group, and to justify that group’s ongoing, racialized acts of violence. This is not simply about the generation of a deportable class of immigrant workers, but about reinscribing a broader social narrative about who is worthy, and who belongs. The whiteness of the press conference is an important background fact that cements the perfection of the racial spectacle. Jackson, Mississippi, is a city of 160,000 people, and 82 percent of the city’s residents are Black. But not a single Black person stands in front of the federal courthouse at this press conference. The workers targeted for prosecution – invisible at the press conference – are all Latino, many of them indigenous. On land seized from the Choctow people two hundred years ago, racial removal remains a constitutive force of both state and nation.
Against the backdrop of an industry that works extraordinarily hard to stay out of sight, the splashy press conference in Jackson, Mississippi, makes plain that there is a broad audience for spectacular enforcement. These efforts communicate a story about who belongs and who does not. Belonging is coded, and not subtly, in racial terms. The logic of immigration and criminal law enforcement are offered up to justify the unequal distribution of material wealth toward white workers and away from the Latino workforce, and away from all workers in favor of a largely white economic elite. The actual labor of the workforce – and the centrality of their work to the sanitization of global consumption of nonhuman animals – is meticulously concealed, even as their purported transgressions against “Americans,” are highlighted and exaggerated.
The literature on deportability focuses (rightly) on the ways that the racialized practice of immigration policing sends a signal to vulnerable workers that they are the targets of ongoing surveillance and enforcement efforts. But a focus on spectacular enforcement reveals how the signaling function of immigration enforcement is aimed not only, and perhaps not even primarily, at workers and their employers. By targeting certain people for treatment that is demeaning by design, spectacular immigration enforcement efforts naturalize racial violence.
Spectacular immigration enforcement illustrates with extraordinary clarity the need for “a context-sensitive politics of sight.”Footnote 93 Read one way, these highly visible enforcement efforts “shine a light” on the labor practices in meatpacking and poultry processing plants, revealing these industries’ deep reliance on unauthorized immigrant labor. But these moments of illumination conceal as much as they reveal. Like the design of the meatpacking plants themselves, they allow for “sequestration…even under conditions of total visibility.”Footnote 94 Press conference consumers confront images of criminalized, foreign workers without seeing historical and contemporary forces that have set the stage for this particular show.
On November 25, 2019, President Trump signed into law the Preventing Animal Cruelty and Torture Act (PACT), the first federal law punishing animal cruelty. PACT makes it a crime, punishable by up to seven years in prison, to engage in “conduct in which one or more living nonhuman mammals, birds, reptiles, or amphibians is purposely crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury.”Footnote 1
While PACT is the first federal law on the topic, it is part of a broader move to criminalize harm to nonhuman animals throughout the nation. Often spurred on by animal advocacy groups, states are increasingly using their own criminal justice systems as a tool in combating the abuse of nonhuman animals. In fact, it is fair to say that an arms race has developed among the states, with organizations like the Animal Legal Defense Fund (ALDF) annually rating various state law regimes on their punitiveness toward animal abuse. For example, the ALDF gives higher rankings to states that criminalize the possession of animal-fighting paraphernalia than those that merely permit the seizure of such items, rewards states for imposing lifetime bans on pet ownership following an animal cruelty conviction, and credits mandatory reporting of abuse by veterinarians.Footnote 2 To qualify as a top-five state under the ALDF’s ranking, a state must not just criminalize, but impose felony punishments for cruelty, neglect, fighting, abandonment, and sexual assault.Footnote 3 In other words, the more punitively a state deals with the problem of animal cruelty, the higher it will rate in the ALDF’s rubric.
Upon the passage of PACT, Kitty Block, the president and CEO of the Humane Society of the United States, praised the law, stating that “PACT makes a statement about American values.”Footnote 4 Unfortunately, that statement may be far truer than Ms. Block intended – for PACT and its sister laws in the states are emblematic of America’s embrace of the criminal justice system as the principal means of addressing myriad societal harms. In this chapter I argue that the embrace of a punitive system of animal protection at both the state and federal levels will have unintended, but certainly foreseeable, negative consequences in the years to come.
Drawing on the related but distinct phenomena of mass incarceration, America’s fifty-year War on Drugs, this chapter warns that a carceral approach to animal cruelty will result in a net-widening effect whereby the criminal justice system extends its reach into the daily lives of more and more Americans. Perhaps more perniciously, the criminalization of animal cruelty is very likely to have a disproportionate impact on the poor and people of color, an impact that will go far beyond the number of people actually prosecuted or convicted under the raft of new state and federal criminal laws going into effect.
7.2 Facts and Myths about Mass Incarceration in the United States
America’s mass incarceration problem is well documented. As of last count, more than 2 million people were currently being held in America’s prisons and jails.Footnote 5 But while this number is a matter of public record, myths and misinformation about mass incarceration continue to persist. To understand this phenomenon properly, it is important to understand its relatively recent vintage. Between 1925 and 1975, the incarceration rate per 100,000 people in the United States was surprising flat, even as the country boomed and busted and its population exploded.Footnote 6 From a low of 79 per 100,000 in 1925 to a high of 139 per 100,000 in the depression year of 1939, the national imprisonment rate oscillated around 100 people per 100,000 (0.1% of the population) for half a century (see Figure 7.1).Footnote 7
Beginning in the late 1970s, however, the share of incarcerated Americans began to skyrocket. By its peak in 2007, 527 of every 100,000 people in the United States (more than one-half of one percent of the total population) were incarcerated.Footnote 8 That is, on a percentage basis, approximately five times as many americans were incarcerated in 2007 as were incarcerated on average during the middle fifty years of the twentieth century. And while that rate has shrunk slightly over the last several years, it is still at historically high numbers. Like a coronavirus curve that rises steeply and then declines gradually, the ascent of incarceration in America was swift and prolonged while the descent has been grudgingly slow (see Figure 7.2).
Sadly, this overall picture only tells part of the story of America’s use of prisons, for it is impossible to separate mass incarceration in the United States from America’s entrenched racial divide. As high as the American incarceration rate is overall, it is far higher for men, for ethnic minorities, and for those under forty. That is, the overall incarceration rate of 419 per 100,000 at the end of 2019 vastly understates the impact that mass incarceration has on subgroups of the population.Footnote 9 For Black men the rate was five times that figure; nearly 2.2 percent of Black men were incarcerated as of December 31, 2019, and nearly 4.5 percent of all Black men between the ages of 35 and 39 were in prison as of that date.Footnote 10 What is more, mass incarceration, while widespread in the United States continues to have a strong regional valence as well. States in the American South and Southwest account for the eight highest incarceration rates in the nation;Footnote 11 those in the upper Midwest and Northeast are consistently among the lowest.Footnote 12 For example, the incarceration rate in Louisiana in 2019 was 680 per 100,000 while in Massachusetts it was “just” 133 per 100,000, less than one-fifth the rate in Louisiana.Footnote 13 As with many things about mass incarceration, the overall picture, frightening though it may be, greatly understates the realities for many Americans.
It is also important to note that the explosion in America’s use of prisons is unparalleled among the nations to which the United States generally likes to compare itself.Footnote 14 The Institute for Crime and Justice Policy Research at the Birkbeck, University of London, compiles statistics on prison populations around the world. It lists the United States as having the highest incarceration rate among the 223 nations surveyed, with an incarceration rate more than 10 percent greater than second-place El Salvador. Of the G8 nations, the United States stands alone – no other industrialized democracy uses incarceration even remotely akin to the way the United States does (see Figure 7.3).Footnote 15
All of this is to say that mass incarceration is neither a necessary fact of life in either the United States or elsewhere in the world. Throughout modern American history, mass incarceration was not deemed a necessary fact of life and it is not seen as prerequisite to safety and security in any other industrialized democracy. Rather, it is rightly viewed as a uniquely American policy choice.
That said, it is often difficult to identify exactly which decisions were made or which actors were responsible for the decisions that led to mass incarceration. That is, no one policy maker decided in 1977 or 1978 that the proportion of Americans in prisons and jails should increase five-fold over the next twenty years. In fact there is no single person or entity that could have decided to achieve such a result; the American criminal justice system is diffuse, with millions of low-profile decisions made at the federal but primarily at the state and local levels. David W. Ball has identified as one of the fundamental drivers of mass incarceration what Franklin E. Zimring and Gordon Hawkins originally referred to as the prosecutor’s free lunch:Footnote 16 local prosecutors can afford to be tough on crime by imposing long spells of imprisonment because prisons (as opposed to jails where shorter sentences are served) are paid for at the state rather than county level.
Even though counties use state prison resources at different rates, they do not typically pay the state based on this usage. State prisons are paid for out of general revenues: counties are not charged for heavy usage, nor are they reimbursed for light usage. Counties that choose to use state prison to address crime are, in essence, subsidized by counties that choose local programs such as probation and treatment instead, since the state typically pays for prison and the county pays for local dispositions…[U]nless the case could be made for the superiority of prison over other dispositions, the state should not subsidize prisons without subsidizing other responses to crime.Footnote 17
Multiplying this perverse incentive structure over thousands of local prosecutors’ offices around the country helps us understand how mass incarceration happened without any prior planning.Footnote 18
Two final, related points sum up the almost incalculable scale of the criminal justice system in the United States. First it is important to recognize that even this enormous prison and jail system in this country is swamped by those on probation and parole; nearly 4.4 million people are on probation or parole in this country, nearly twice as many people as are currently incarcerated.Footnote 19 And though they are not incarcerated, those on probation and parole are subject to significant curtailments of their liberty and are at risk for being quickly committed to prison or jail if they fail to live up to the terms of their supervised release.Footnote 20 Because the costs of such surveillance are generally borne by those subject to it, the risk of failure (and of the resulting incarceration) is more profound for the poor than the well-off.Footnote 21
Second, the 2.3 million people incarcerated in the United States at any one time are themselves only a small fraction of those impacted by mass incarceration each year. While the average jail population during the year 2018 was 738,000, more than 10 million people were admitted to jails throughout the country during that year.Footnote 22 That is, almost 5 percent of Americans are brought into the carceral system every single year, and the total number of Americans passing through jails and prisons is more than four times the number inside the system at any one time.Footnote 23 Thus, it is the “churn” – the number of those processed through America’s jails after arrest – rather than the average population of county jails at any particular time that tells the true story of how vast America’s prison and jail system truly is. And once again, these costs are overwhelmingly borne by the poor. The American cash bail system means that our jails are mostly full of people who have been convicted of no crime, and who are incarcerated simply because they are unable to pay for their freedom.Footnote 24
In sum, the American criminal justice system – not just its prisons and jails, but its web of surveillance and supervision – is without parallel fantastically large. Ironically, the presence of more than 2 million people in our prisons and jails actually understates the scope of the problem. As I argue in the next section, the War on Drugs – which provides a cautionary tale for the criminalization of animal abuse – has been an important, though perhaps overestimated, ingredient in this phenomenon.
7.3 The War on Drugs
Though the two are often conflated, the War on Drugs is a separate and distinct phenomenon from mass incarceration. And, though the two have overlapped and fed on each other over the last fifty years, the relationship between them has often been shrouded with confusion.
The modern history of the drug war probably begins with the passage of the Controlled Substances Act (CSA) in 1970. Although the phrase “controlled substance” wouldn’t be used for the first time until President Richard Nixon coined it the following year, the CSA was designed to be a blow against the counterculture that had largely defined the previous decade. More than that, the War on Drugs was both racialized and partisan from the start.Footnote 25 The War on Drugs was a means to get back at the president’s enemies and to use the criminal law to target political opponents.
But it is important not to overstate the importance of the CSA or any other federal law – such as the infamous crack-to-powder-cocaine sentencing disparityFootnote 26 – in the day-to-day implementation of the War on Drugs. The role of the federal government in setting national criminal justice policy is far more symbolic than practical. More than 90 percent of those serving time in prisons and jails in the United States are under state and local rather than federal supervision. While the federal government plays a larger role in the prosecution of drug crimes – most of the crimes of violence that lead to long prison terms in the United States lack a federal nexus and are thus prosecuted almost exclusively at the state level – it remains true that even the vast majority of drug law enforcement is done at the state and local level. The importance of federal criminal justice policy serves primarily as an announcement of values to the states coupled in many instances with the provision of federal and assistance to states for their cooperation in federal initiatives.Footnote 27 Much as we saw that mass incarceration is largely attributable to individual decisions made by thousands of prosecutors in millions of cases around the country, so the War on Drugs was carried out primarily by the state legislatures and local law enforcement officials and prosecutors within those states.Footnote 28
In her groundbreaking and discussion-moving book on mass incarceration in the United States, Michelle Alexander makes the connection between mass incarceration and the War on Drugs explicit. “In less than thirty years, the US penal population exploded from around 300,000 to more than 2 million, with drug convictions accounting for the majority of the increase.”Footnote 29 The reality is, to say the least, more complicated. In his book Locked In, John Pfaff takes on the connection between these phenomena, arguing that the War on Drugs actually played a relatively minor role in the rise of mass incarceration.
When we look at the data more closely, it becomes increasingly difficult to defend the claim that the war on drugs is the main driver of prison growth. This is true for pretty much any definition of the “war on drugs,” from one that refers to just the incarceration of those convicted of drug offenses to broader perspectives that include anyone who would not have been in prison if the United States had not prohibited certain drugs or enforced their prohibition. No matter how we define the war on drugs, its impact appears to be important, but unequivocally secondary to other factors.Footnote 30
In fact, when we look at the state and federal prison system as a whole, we see that most people serving felony sentences are imprisoned for crimes of violence, while those convicted of drug crimes constitute only a tiny fraction of the overall prison population. According to the Bureau of Justice Statistics, 55.5 percent of all prisoners in state and federal custody were there for violent crimes,Footnote 31 while only 14.1 percent of all prisoners in the United States were there for drug offenses, with just 3.7 percent imprisoned for possession alone. Thus, any political solution to mass incarceration that focuses primarily on so-called low-level or nonviolent drug offenders will produce no more than baby steps toward solving America’s mass incarceration problem. Even if we were to release everyone whose most serious offense is a drug crime – including both large-scale drug dealers and those convicted of providing drugs to minors, for example – it would make only a small dent in America’s mass incarceration problem.Footnote 32 Any meaningful reform will require us to confront the long prison sentences that we apply to violent crimes such as murder, robbery, and rape.
This is decidedly not to say, however, that the War on Drugs plays only an insignificant part in the American carceral state. We have seen, for example, that prison and jail populations in the United States – enormous though they are – vastly understate the size of the carceral state in America. For example, there were more than 10 million arrests in the United States in 2017 and nearly one in six of them was for what the FBI calls a drug-abuse offense.Footnote 33 In fact, there were almost as many arrests for drug crimes as for the eight major index crimes – murder, robbery, rape, aggravated assault, burglary, theft, auto theft, and arson – combined.Footnote 34 What is more, 85 percent of those arrested on drug offenses were arrested for possession rather than the more serious offenses of manufacturing or distributing drugs; while possession, sensibly, accounts for only a small percentage of the prison population, it makes up an outsized fraction of those arrested. And though few of these arrests lead to long prison terms, they are far from costless for those they sweep into the system. The fact of even a minor conviction (or even just an arrest) can have a profound negative impact on one’s life prospects. Criminal justice scholars have devoted great attention in recent years to the so-called collateral consequences of involvement in the criminal justice system, documenting how arrest and conviction can lead to deprivation of everything from voting rights to gun rights to access to federal benefits.Footnote 35 And of course, the burdens of the War on Drugs, like those of mass incarceration, have fallen disproportionately on Black and brown people. A report produced by ACLU found that although they use marijuana at similar rates, Black people were nearly four times more likely to be arrested for the use of that drug than were white people.Footnote 36 Studies in other jurisdictions, even those that have liberalized their marijuana laws, continue to report disparities in the rate at which Black people and white people are arrested.Footnote 37
7.4 Implications for Animal Law
What I hoped to show in the previous section is that the War on Drugs is both under- and overappreciated as a driver of the growth of the carceral state in this country. It is not responsible for the fact that more than 2 million people are in prisons and jails in this country, but it does adversely impact the lives of literally millions of Americans each year – disproportionately people of color – limiting both their liberty and their life choices in wide-ranging and significant ways. In this section, I argue that the War on Drugs has a lot to tell us about the trend toward criminalizing animal abuse in this country.
First, there is no reason to think that the enforcement of laws forbidding animal abuse is likely to be more equitable than any other sort of criminal law enforcement. In fact, the most prominent prosecution for animal cruelty is something of a cautionary tale for the racialized policing that may come with the criminal enforcement of PACT. Take, for example, the most high-profile animal cruelty prosecution of the last fifty years – that of Atlanta Falcons quarterback Michael Vick for running a dogfighting ring. Vick’s prosecution by both state and federal authorities was fraught with racist overtones. My colleague Justin Marceau, noting the fact that dog breeding and fighting had historically been associated with upper-class white people, wrote of the Vick prosecution: “It is notable that the most high-profile animal cruelty prosecution in decades turns on the prosecution of an African American for the very practice that was flaunted as a symbol of his racial inferiority during his grandparents’ lives.” The comedian Chris Rock put things more pithily on the David Letterman show in 2008 when Alaska governor Sarah Palin was running as John McCain’s running mate on the Republican presidential ticket. Rock imagined Michael Vick in his prison cell studying the widely circulated photo of Palin posing with a bloody moose she and her son had shot, wondering to himself “Why am I in jail? You let a white lady shoot a moose; Black man wanna kill a dog, that’s a crime.”Footnote 38 Behind the laugh line is a grim reality: the criminal enforcement of animal cruelty laws, like the enforcement of drug laws before them, and alcohol laws before those, will necessarily be filtered through a racial lens which defines which sorts of animal cruelty merit law enforcement intervention.
What is more, there is good reason to fear that the enforcement of animal cruelty laws will pose a deadly threat to all citizens (and particularly Black and brown ones) much as the enforcement of drug prohibition has long been a driver of police killings. Breonna Taylor was killed when police officers executed a warrant at her home in the middle of the night, believing that she was holding either cash or drugs for an ex-boyfriend. When the officers failed to identify themselves with sufficient clarity, Taylor’s current boyfriend opened fire and Taylor was killed in the violent police response. Cases such as Taylor’s are sadly common; given the judicially accepted presumption that drug trafficking involves the use of weapons;Footnote 39 nonviolent drug offenses are often treated by law enforcement as life-threatening. The vision, perpetrated by cases like Vick’s, of the fighting dog trainer as a violent, almost subhuman predator is likely to mean that warrants enforced against those suspected of animal cruelty will present the same kind of dangers we too often see with the enforcement of drug laws.Footnote 40
Another concern is the way that expansion of substantive criminal law impacts constitutional criminal procedure. The Supreme Court’s early Fourth Amendment cases – dealing with wiretapsFootnote 41 and automobile searchesFootnote 42 – arose in the context of the nation’s failed experiment with alcohol prohibition. Prohibition made alcohol smuggling profitable, and the new federal bureaucracy that arose to enforce it required the Court to consider, often for the first time, the permissible means of criminal investigation and prosecution.Footnote 43 After Prohibition was repealed, other criminal statutes operated as a lever for law enforcement officers to access citizens’ persons, houses, papers, and effects. In this context, the prohibition of drugs has played a large part, influencing everything from the constitutionality of technological surveillanceFootnote 44 to the use of dogs to detect controlled substancesFootnote 45 to random checkpoints targeting the transportation of illicit drugs.Footnote 46 As noted above, the enforcement of drug laws impacts not just those who are investigated and prosecuted for trafficking drugs; the constitutional law made in drug trafficking prosecutions affects the rights of the law-abiding and the law-defying alike.Footnote 47
Those of us who teach criminal procedure or practice criminal defense are all too familiar with the almost mythical role that the odor of marijuana plays in the enforcement of criminal law in this country; the smell of marijuana is a kind of Fourth Amendment shibboleth, opening doors to officers who can assert that they have encountered it.Footnote 48 For example, in U.S. v. Kizart,Footnote 49 the defendant’s car was pulled over for speeding and the officer testified that he smelled the unmistakable odor of burnt marijuana emanating from the passenger compartment of Kizart’s car. The officer searched both Kizart and the passenger compartment but found no contraband. The officer then opened the trunk of the sedan and found both marijuana and methamphetamine wrapped in packages inside a trash bag, which was inside a backpack, inside the trunk. Although Kizart argued that the smell of burnt marijuana was consistent only with personal use of the drug and that therefore the officer had no probable cause to believe that bulk marijuana would be found in the trunk, the appellate court disagreed. The smell of marijuana, coupled with Kizart’s anxiety when questioned by the police, the court concluded, justified a full search of the entire car as well as any closed containers therein. Similar examples are almost too numerous to choose from.Footnote 50
There is genuine risk that the barking dog will become the new smell of marijuana, the unquestionable evidence that entitles police officers to make a warrantless entry or search. This is not speculation; we have already seen cases litigated in which the government has argued that its interest in public safety includes concern for nonhuman animals as well as for human well-being. In one such case, Commonwealth v. Duncan,Footnote 51 the Massachusetts high court extended the “emergency aid” exception to both the warrant and probable cause requirements to the protection of nonhuman animals, validating officers’ decision to enter Duncan’s property without a warrant after hearing feeble whimpering and barking from an animal apparently in distress on Duncan’s property. In reaching this conclusion, the court was supported by amici, including the ALDF, ASPCA, Humane Society, and Animal Rescue League, and law enforcement agencies who argued that Massachusetts’ decision to treat animal abuse as a serious crime justified the warrantless entry onto Duncan’s property:
The Commonwealth’s broad and comprehensive animal protection statutes reflect its citizens’ strong interest in the humane treatment of animals and the growing recognition that the prevention of animal suffering is both a moral imperative and in the public’s interest. Application of the emergency exception to the warrant requirement to the protection of animals in peril logically and necessarily flows from this statutory scheme and the community values it embodies. A contrary result would be anathema to the spirit of the Commonwealth’s existing animal protection laws and at odds with prevailing public sentiment.Footnote 52
The Duncan case has been cited favorably in Kentucky,Footnote 53 Ohio,Footnote 54 and Vermont.Footnote 55
Notice the connection between where we began and the holding in Duncan. This chapter started with a description of how ALDF and other advocacy groups reward states for making various animal abuse offenses felonious. Many of these same advocacy groups then argue that because a state has chosen to treat animal abuse as a serious felony, the state necessarily has a strong interest in the protection of animals sufficient to overcome a homeowner’s interest in avoiding warrantless searches and seizures.
It is easy enough to dismiss the failed alcohol prohibition of the last century as a moral panic, a moment of hysteria from the distant past. But this account overlooks the fact that Prohibition, for all its faults, was part of a broad progressive movement that encompassed slavery prohibition and women’s suffrage. Freeing men from the bondage of addiction was seen by many of Prohibition’s proponents as the last great emancipation project of the period. In founding the Prohibition Party, the slavery abolitionist Gerrit Smith made the connection plain:
He suggested that this continuing form of bondage might be more miserable, and more dangerous, than the one recently abolished. “No outward advantages can bring happiness to the victim of alcohol – to him who has killed his own soul,” Smith said. “The literal slave does harm to no one, whilst the self-made slave of whom we speak is a curse to his kindred, a burden upon all, and, in no small share of the cases, a terror to all.”Footnote 56
One hundred years after Prohibition began, however, its progressive roots are largely forgotten. When Americans think of the period from 1920 to 1933, what they generally remember is failure, corruption, and discrimination. Prohibition gave rise not just to organized crime, but to a federal police force that enforced the law unevenly, singling out disfavored groups for sanction.
Prohibition policing differed by region, by rural or urban setting, and most especially by race, ethnicity and class. An unprecedented campaign of selective enforcement lurked beneath the surface glamor of the roaring twenties that left the urban elite sipping cocktails in swank, protected nightclubs, while [other men] died over a jug of whiskey.Footnote 57
The analogy from prohibitions – of alcohol and drugs – to the increasing punishment of animal abuse is obviously an imperfect one. The desire to alter one’s consciousness is near universal, whereas the instinct to abuse animals is aberrational; prohibiting substances creates an illicit market for them in a way without a clear parallel to criminalizing animal abuse. But the prohibitions of alcohol and drugs can show us the dangers of relying on the criminal justice system to solve the nation’s perceived ills. Prohibition didn’t just fail. It created much of the infrastructure that supported mass incarceration.Footnote 58
The move to criminalize animal abuse is unlikely to so radically change society; the edifice of state power and control is already in place. But both Prohibition and the War on Drugs teach us that the desire to use the criminal justice system to achieve even beneficent goals often harms the very communities they are ostensibly intended to protect. The negative effects of a carceral approach to animal protection, foretold by previous spasms of criminalization, are likely to be both far-ranging and unevenly distributed. To avoid these harms, it is not enough merely to moderate the impulse to create new categories of crime – to create misdemeanors rather than felonies. As Alexandra Natapoff has written, so-called decriminalization is often a trap that does the opposite of what it promises:
[D]ecriminalization represents the next generation of the “net-widening” phenomenon. Net-widening refers to reforms that make it easier to sweep individuals into the criminal process, and decriminalization does so in sophisticated ways. Primarily, it makes it possible to reach more offenders by simplifying the charging process and eliminating counsel, along with other forms of due process. But it also heightens the impact of the net by turning to supervision and fines as indirect, long-term constraints on defendant behavior, and by extending the informal consequences of a citation or conviction deep into offenders’ social and economic lives. The widening net, moreover, is not colorblind: decriminalization risks further racializing the selection process as police are empowered to stop and cite young Black men more freely without the constraints of criminal adjudication or the threat of defense counsel.Footnote 59
Only what she calls true decriminalization – not just decreasing criminal penalties but moving conduct entirely outside the criminal justice system – is likely to avoid the harms that system imposes.
The Battered Women’s Movement and I were born in the late 1960s. In its infancy, the movement coalesced around the grassroots goals of sheltering women and raising political consciousness about the connection between domestic violence and gender subordination. Later, it looked to law as a tool to effect the social change it envisioned – gender equality. Activists first lobbied for civil legal relief in the form of civil restraining orders, then turned to enforcement of the criminal law. Between 1984 and 2000, the criminal law of domestic violence exploded.Footnote 1
Amid this explosion, in 1992, I worked in a domestic violence shelter. It was my first real job after college. I worked all my hours for the week in a single shift, living in the shelter from Friday at 5:00 p.m. through Sunday at 5:00 p.m. On these weekends, I heard from residents about their appointments during the week with the local legal aid attorney, who promised safety and freedom through civil protection orders and cooperation with aggressive prosecutors. Feeling the same sense of optimism that many residents felt about law, and the same growing sense of pessimism about shelters in creating meaningful social change, I decided to go to law school. Sending the message to would-be batterers that they could be arrested, prosecuted and court-ordered to move out of their own homes (rather than victims needing to do so) seemed a much more proactive, empowering, and effective solution than providing victims a place to stay, after the fact of abuse.
It may not come as a shock to the reader to learn that I am a middle-class white woman. This chapter reflects on the hopefulness with which I and other, largely white, activists in the anti–domestic violence (DV) movement imbued law – a hopefulness that is not uncommon in social movement work and is a product of white privilege. Because leaders of the animal rights movement are overwhelmingly whiteFootnote 2 and because the trajectory of the animal rights movement appears, at least currently, to track the same reliance on criminal law to effect social change, it is my hope that the reflections offered in this chapter provide reasons for pause.
As a solution to the problem of DV, we (activists) placed most of our chips in the pot of criminal law. Then we went all in, on this criminalization strategy, also known as “crime logics”Footnote 3 and “carceral feminism,”Footnote 4 with mandates: mandatory reporting of DV to law enforcement by professionals in the community; mandatory arrest of DV perpetrators at the scene of a crime; and mandatory prosecution of charges involving DV. As this chapter will discuss, the mandatory (versus discretionary) arrest of suspected perpetrators, tough-on-crime “no-drop” prosecution policies, and “zero-tolerance” attitudes did not create the meaningful social change hoped for. By some accounts, the criminalization strategy has made but a dent in the prevalence or acceptability of DV, and in many ways (discussed herein) it has harmed rather than helped those it was intended to protect. Worse, these policies have contributed to the disproportionate incarceration of people of color and other marginalized individuals. Indeed, a critical and shameful mistake in the anti-DV movement has been its racist indifference to the treatment of people of color by law enforcement. Starting from the position that any expectation of a reliable, protective response by police is a product of not merely white, but also heteronormative, privilege, it is clear that privilege must be reckoned with. This reckoning is particularly critical for movements centered on equality and dignity, as are both the anti-DV and animal rights movements.
The chapter begins with a thumbnail sketch of laws promulgated to protect victims of domestic violence, pointing out parallel law reform efforts in the animal rights movement. Although there were many unintended consequences of an overly optimistic reliance on law to combat DV, I focus on four: the crowding out of other potential solutions; the increased arrest of women and other problems with mandating arrest at the scene of a domestic disturbance; the problem of police as perpetrators of both partner and animal abuse; and the loss of activists’ initial vision and goals. The chapter concludes with personal reflections. For twenty-five years, I have represented people who experience abuse to obtain civil protection orders, child custody, divorce, and lawful immigrant status. I went to law school because I thought that enforcing the law, rather than providing services like shelter, was a more effective way to address DV. Now I wish that the millions of federal dollars spent each year on policing and prosecuting could instead be funneled into housing, childcare, and other resources that the victims we are trying to help actually need. Ironically, the shelter I worked at before attending law school provided precisely these resources.
8.2 Thumbnail Sketch of Criminal and Civil Remedies for Domestic Violence
Fifty years ago, there was no criminal or civil justice system response to the problem of DV. In fact, the concept of “domestic violence” as opposed to stranger violence, at least as far as the law was concerned, did not exist. Today, sending a harassing text message to an ex who lives across state lines is punishable as a federal crime, a state crime (potentially a couple of different state crimes), and often contempt of court.Footnote 5
The seriousness with which the justice system now treats DV is the result of a number of reforms anti-DV activists lobbied for in response to, in their view, the state’s history of indifference.Footnote 6 Much like animal rights activists,Footnote 7 anti-DV activists in the 1970s and 1980s believed that laws on the books were underenforced, or simply not applied, in cases of abuse.Footnote 8 They observed that police avoided responding to calls for help from victims of DV, and when they did respond, it was with reluctance to interfere in a “private family matter” and might end with (if the “squabble” was sufficiently serious) a walk around the block for the perpetrator to cool down.Footnote 9 To address this problem with police discretion, feminist activists and victim advocates fought for reform of the law to require police to arrest alleged perpetrators at the scene of a DV disturbance. These are referred to as “mandatory arrest” policies. Advocates for animal rights have urged similar mandatory arrest laws for animal cruelty and have done so for similar reasons.Footnote 10 Indeed, all fifty states have adopted a felony animal abuse statute.Footnote 11
It is important to note that not all anti-DV activists agreed with the criminalization strategy. In fact, activists of color were – and remain – deeply skeptical.Footnote 12 For communities of color, increased police presence had never been a means of achieving safety. Activists of color therefore warned against partnering with the state and particularly the criminal justice system. Their protests were unheeded.Footnote 13
Interestingly, mandatory arrest laws proliferated in the 1980s, around the time of the alleged murder of a white woman by her ex-husband, who is Black: the murder of Nicole Brown Simpson by O. J. Simpson. As noted by Professor G. Kristian Miccio,
Soon after [the murder of Nicole Brown Simpson], New York joined a majority of states in passing mandatory arrest laws in cases involving DV. Most of the legislation passed that day had languished for years in state legislatures. With the death of Nicole Brown, politicians raced to the state house to invoke DV laws, jumping on the “zero tolerance” bandwagon.Footnote 14
Rates of arrest increased dramatically. To be certain that arrests paid off, activists advocated that states and municipalities require district attorneys to prosecute DV aggressively, with “no drop” prosecution policies aimed at curtailing prosecutor discretion to dismiss criminal charges in DV cases.Footnote 15 By 1996, two-thirds of prosecutors’ offices had adopted some variation of a “no-drop” prosecution policy.Footnote 16 Advocates for animal rights have urged similar mandatory arrest laws and aggressive prosecution policies for animal cruelty, and have done so for similar reasons.Footnote 17
At about the same time as states engaged in criminalization tactics, Congress passed in 1994 the first federal law prohibiting DV, the Violence Against Women Act (“VAWA”). VAWA made it a federal crime to cross state lines to abuse or stalk an intimate partner or to possess a gun if convicted of even a misdemeanor crime of DV. Women’s advocates and activists played a major role in crafting the VAWA and in shaping federal funding priorities under that act. “Their priority was using federal funds to reinvent the legal system to make police, prosecutors and judges more responsive.”Footnote 18 The first iteration of VAWA required states to pass mandatory arrest laws to receive federal funding, and the single largest pool of money under VAWA was the Services for Training Officers and Prosecutors grant, specifically intended to increase the apprehension, prosecution, and adjudication of persons perpetrating violent crimes against women.Footnote 19 Advocates for animal rights have urged similar federal legislation.Footnote 20
On the civil side of domestic violence rulemaking, civil protection orders (or restraining orders) became available to victims in the late 1970s and throughout the 1980s. By 1989, every state provided for this emergency civil remedy that restrains the perpetrator from coming near or contacting the victim, amongst other forms of relief.Footnote 21 The VAWA provided an array of protections in the civil justice system as well. These range from remedies for immigrant victims to gain lawful immigrant status to prohibitions on landlords for discriminating against victims who apply for housing.Footnote 22 Advocates for animal rights have urged similar federal policy and legislation.Footnote 23
In short, in the last half century, US law and policy reforms have caused a sea change in how the civil and criminal justice systems respond to DV. While there have been benefits for those victims who are able and who desire to use the justice systems for help, feminist activists who advocated for these landmark reforms, on reflection, have questioned their effectiveness in ending DV and meaningfully advancing the rights and safety of victims.Footnote 24 Their questions flow from several of the unforeseen consequences of the reforms, discussed below.
8.3 Problems with Overreliance on the Criminal Justice System
8.3.1 Crowding Out of Other Solutions
Massive federal funding continues to be diverted to the enforcement of the criminal law as a primary solution to the problem of DV.Footnote 25 The problem, stated succinctly by Professor Leigh Goodmark, is that “in the zero-sum game of funding, monies spent on law enforcement are not spent on other crucial services like housing, job training, education or economic development.”Footnote 26 Housing is the number-one need of people experiencing abuse.Footnote 27 Unemployment and poverty have for years been known to be not merely risk factors associated with increased danger and lethality, but structural causes of DV.Footnote 28 One study showed that women who experience abuse have benefited as much from having help with child care, laundry, and errands as from legal advocacy.Footnote 29 Outsourcing the problem of DV to the justice system has precluded community-driven solutions and drained commitment to social and mental health services for both those who perpetrate and those who experience abuse. It has also decreased the available emergency shelter beds for women, children and their pets, which is important not only practically but symbolically, given that the battered women’s movement began as a shelter movement.
The continued faith in the efficacy of law, and particularly criminal law, to redress DV is therefore puzzling for several reasons. First, it ignores the explicitly stated needs of people who experience abuse – this, despite that the concept of listening to women’s voices and to their lived experience is a central tenet of the battered women’s movement. Second, it comes at the high price of racial injustice, not merely in the overincarceration of Black men and the deportation of brown men, though these phenomena are well documented. But with the funneling of money toward punitive criminal and immigration law enforcement, and the decrease in funding for housing, there has been an increase in the eviction of women of color from their homes. As Mathew Desmond succinctly observed in his Pulitzer Prize–winning book, Evicted: Poverty and Profit in the American City, “If incarceration had come to define the lives of men from impoverished Black neighborhoods, eviction was shaping the lives of women. Poor Black men were locked up. Poor Black women were locked out.”Footnote 30
What is worse is that increased criminalization has not made the impact hoped for by activists regarding the prevalence of DV. Although there has been some evidence of a decrease in rates of DV beginning about a decade after the VAWA first passed, this decline has not been substantial. Between 2004 and 2010, rates of DV fell, but they fell less than the overall crime rate.Footnote 31 Between 2012 and 2019, rates of DV have not fallen, but stagnated.Footnote 32 Given the hundreds of millions of dollars specifically directed to criminal law enforcement since 1994, this trend is deeply problematic.Footnote 33 Worse, though, is that funding for criminal law enforcement has increased – and funding for housing and social services decreased – in every reauthorization of the Violence Against Women Act since 1994.Footnote 34
8.3.2 Detrimental Consequences of Mandating Arrest
Most striking is that in states with mandatory arrest laws, there has been evidence of an increase in serious violence against women; for example, a 2005 study found a 54 percent increase in intimate partner homicides.Footnote 35 Dialing back mandatory arrest, even without other changes, may benefit women, especially women in low-income communities of color.Footnote 36 The increase in homicide rates, combined with victims’ increasing reluctance – since the promulgation of aggressive arrest and prosecution policies – to call the police for help should give animal rights activists pause.Footnote 37
Another unforeseen consequence of mandatory arrest has been the increased arrest of women for abusing their male partners.Footnote 38 Though more women are being arrested, there has been no empirical data suggesting that women’s use of violence in their relationships has dramatically increased.Footnote 39 As a result, it is difficult not to wonder whether the increase in arrest of women is directly attributable to the implementation of mandatory arrest laws. Mandatory arrest laws compel police to make an arrest, one way or another, if they have probable cause to believe that DV occurred. Perhaps for this reason, and in hindsight, it makes sense that arrest rates of women increased with the promulgation of mandates; after all, it is beyond empirical doubt that women can, and do, use physical violence in their relationships, whether they be relationships with other women or with men.Footnote 40
But “[w]omen typically do not control, intimidate, or cause fear in their partner when they use violence, which is the opposite of the goals that most male abusers try to accomplish through their use of force against their female partners.”Footnote 41 The question then is whether the police can, or should, at the scene of a domestic disturbance, attempt to understand the context and history of the parties. Given that police are resistant even to determining who physically attacked whom first (or who was the primary aggressor), asking police to complete a contextual analysis is unrealistic. More problematic generally, though, is that many police do not appreciate that their discretion to arrest has been taken away with “bullshit laws” like mandatory arrest laws.Footnote 42
Another type of violence in intimate relationships is “violent resistance.”Footnote 43 This occurs when people who’ve been systematically abused anticipate an incident of physical abuse and so they, the victims, provoke it by attacking first. This type of violence in intimate partnerships is different in kind from the type that anti-DV advocates wanted to prevent; they wanted to prevent the ongoing pattern of coercion and/or physical violence for the specific purpose of controlling a partner. Violent resistance is nonetheless “domestic violence” under many states’ criminal laws. Or it could be that at the scene of a domestic disturbance, it is simply too difficult to determine whether an act of violence is one of self-defense versus proactive aggression.
For all these reasons, given no, or little, discretion about making an arrest at the scene of a domestic disturbance, police may err on the side of being safe rather than sorry by arresting both parties at the scene, a phenomenon known as dual arrest. Whatever the cause, mandatory arrest laws that take away police discretion have proven not to be as effective as anti-DV activists had hoped and, in fact, have in many cases hurt the people that they were intended to protect. Why should any of this matter to animal rights activists? Put simply, if criminal law hurts rather than helps, it may not be easy to amend, let alone repeal. Particularly in this day and age, when laws that ratchet up, rather than down, carceral solutions are sticky.
8.3.3 Police as Perpetrators of DV
One group of people who have never borne the risk of overarrest are police themselves. Yet rates of DV are higher amongst police than in the general population.Footnote 44 Little attention has been paid to this issue by anti-DV and by animal rights activists.
In his 2014 article in the Atlantic, entitled Police Have a Much Bigger Domestic-Abuse Problem Than the NFL Does, journalist Connor Friedersdorf noted the dearth of empirical data available. He relied upon the only sources he could find: a fact sheet created by the National Center for Women and Policing,Footnote 45 finding that “[t]wo studies have found that at least forty percent of police officer families experience DV, in contrast to ten percent of families in the general population. A third study of older and more experienced officers found a rate of twenty-four percent, indicating that DV is two to four times more common among police families than American families in general.”Footnote 46
Friedersdorf also cited a 2013 investigative article in the New York Times, finding “In some cases, researchers have resorted to asking officers to confess how often they had committed abuse. One such study, published in 2000, said one in 10 officers at seven police agencies admitted that they had ‘slapped, punched or otherwise injured’ a spouse or domestic partner.”Footnote 47 After reporting requirements were tightened in 2007, requiring fingerprints of arrested officers to be automatically reported to the agency that licenses them, the number of domestic abuse cases more than doubled – from 293 in the previous five years to 775 over the next five.
Advocates for animal rights should care about higher rates of abuse amongst police because of the correlation between the abuse of intimate partners and the abuse of the partner’s animals.Footnote 48 In domestic violence cases, perpetrators often threaten to, or actually do, cause harm to animals as a means of coercing or causing psychological injury to their intimate partners. If police are more likely than people in the general population to abuse their partners, and a form of abuse of partners is harming that partner’s animals, police may as a group be more likely to abuse animals. Before relying on police as first responders to the problem of abuse of animals, activists must investigate carefully their rates of abuse of animals lest they find themselves in the same conundrum as anti-DV activists: relying on perpetrators to protect victims.
But there is a more troubling issue lurking here. Many animal rights advocates vehemently argue that there is a link between violence against animals and the proclivity to use violence against people. This link is one justification that animal rights activists use in support of more officers enforcing animal crimes. In other words, more police, if animal activists are correct about the link, should reduce domestic violence. Alas, the opposite is true in the context of DV. More police enforcing animal laws yields more, not less, abuse of people.
8.3.4 Co-option of the Definition of DV
Overreliance on the criminal justice system response had another unintended consequence in the broader social context. The definition of DV changed from what activists in the early battered women’s movement intended. This movement grew out of the women’s liberation movement of the 1960s and 1970s. At its inception, the “battered wives’ movement,” as it was first called, was about ensuring that women not only had the right to be safe in their own homes, but the right to be equal. Physical violence against women was just one manifestation of a larger pattern of subordination that included many other forms of control – over money, jobs, education, relationships outside of the home, to name a few. The goal of early activists was to win autonomy – the ability to be full and equal citizens in society – not merely to win the right to be physically safe.
The criminal law definition focuses – as it does in cases of assaults perpetrated by a stranger – on a discrete, physical incident of violence.Footnote 49 It is the criminal definition, and not control over money or access to education or jobs, that people commonly think of when they think of DV. Think for a moment of the ads we see during the Super Bowl, or the images of women with black eyes on billboards. None captures the underlying causes of DV; all capitalize on the physical injury that matters to the criminal definition of DV.
There is thus a mismatch between the conduct for which offenders are arrested, restrained, and prosecuted, and the construct of DV as many activists understand it. The VAWA defines DV as “any felony or misdemeanor crime” perpetrated by one person against another in an intimate or familial relationship.Footnote 50 The felony or misdemeanor is set forth in states’ criminal codes. No state statute criminalizes a “pattern of behavior for the purpose of gaining power and control” in a relationship. Indeed, few states have codified a standalone offense of “DV.” Instead, states label, categorize, or enhance the penalties for numerous crimes such as assault, battery, and kidnapping in one circumstance: when perpetrated in a relationship.Footnote 51 Few state statutes mention, let alone require proof of, any motive.Footnote 52 Nor does any state statute require that criminal acts of violence within an intimate relationship be part of a pattern, though repeated acts against the same partner might warrant enhanced penalties.Footnote 53
Thus, any single criminal act committed by one partner against another, for any reason, can qualify as a crime subjecting the perpetrator to mandatory arrest, aggressive prosecution, and restraint. This treatment bears little resemblance to the definition of DV that anti-DV activists most wanted, and indeed still do want, to target: a pattern of acts, not necessarily including physical violence, in which one partner seeks to control the liberty and autonomy of the other.
In short, the criminalization strategy usurped the very definition of the problem, as conceived of by anti-DV movement leaders. In 2006, pioneering activist Ellen Pence wrote:
the new laws as well as procedures and public policies that were crafted to confront such abuse, lumped all acts of domestic violence into a unitary category. For example, the phrase “zero tolerance” was coined to emphasize the struggle to end intimate partner battering. However, over the years, its target has been extended to include all violence and any potential violence. That is, the single focus of stopping the ongoing use of violence and coercion against women by their partners became a diffused goal of confronting all acts of violence between couples under the rubric of “zero tolerance.” We differ with this over-generalization and believe that it would lead to a “one-size-fits-all” intervention approach, which would meet neither the goals of fairness nor public safety.Footnote 54
Overreliance on law’s definition of DV draws attention away from, rather than toward, systemic violence, risking that we lose the war to win only small battles. At the beginning of the second wave of feminism in the early 1970s, activists made connections between abusive tactics within relationships and the larger institutions that supported those individual tactics. After naming specific tactics of an individual abusive partner, a second inquiry always followed. Women in shelters and in community support groups were asked to name, explicitly, all the “institutional and community decisions [that] support [the] individual batterer’s ability to use abusive tactics (police, courts, media, medical, clergy, business, education, human services).”Footnote 55 Today, people who experience abuse are asked only the former. As noted by sociologist Joshua Price, the “second part of the code, that part that seeks to uncover and describe institutional and cultural collaboration with the batterer, is often eliminated.”Footnote 56
A growing consensus among feminist scholars, in addition to activists, is that too little attention has been paid to the contribution of structural conditions to the problem of intimate partner violenceFootnote 57 and too much attention has been paid to fine-tuning the law.Footnote 58 How could this not be the case, when law and particularly criminal law is the primary solution we have created for addressing DV?
The potential for co-option of definition should be of even greater concern to animal rights activists. The animal rights movement has yet to come to agreement, amongst its stakeholders, about what is, and what is not, abuse and what will, and what will not, sufficiently protect nonhuman beings.Footnote 59
8.4 Reflections from the Trenches
Recently, I was asked to make a presentation to the staff of a local anti-DV agency. One of the members of the audience asked: “What’s the biggest change, since you were a shelter worker in 1990, about how we (advocates in shelters) help people experiencing domestic violence?” In reply, I recalled that I was taught to counsel women: “Leave. Abuse only increases over time. If you don’t leave, things only are going to get worse. Leaving is the only way to be safe.” This was the training I received as a shelter worker, in the early 1990s; this was the training that many shelter workers and anti-DV advocates received at the time.Footnote 60
Yet only twenty years earlier, at the start of the shelter movement, getting women to leave their partners was not the goal. At the start of the second wave, the idea was to help people experiencing abuse identify their own solutions while providing them a space to live that was safe. Shelter provided not merely housing in an emergency, but the support and company of other women; childcare co-ops; advocacy for benefits; job training; and a host of other supports.
Today, we (advocates for survivors) have returned to an era in which we don’t dictate to women what to do. We sit down with each survivor, aspiring to partner with them to create realistic strategies given their particular context. We now understand that DV is not a problem for which a single solution can work for everyone, let alone be summed up in a sentence. We understand that “we” don’t tell “them” how to live. We understand that suggesting that someone “just leave” an abusive home is about as realistic as asking teens to “just say no” to drugs.
Unfortunately, the response offered by the criminal justice system has not been recalibrated. Separation of the parties via mandatory arrest, aggressive prosecution, and automatically imposed criminal restraining orders, regardless of the individual victim’s wishes, is the system’s singular response to people who experience DV. The criminal justice system’s separation strategy is a strategy that anti-DV activists lobbied for. Because anti-DV activists put all their eggs in the criminalization basket as a means of ending DV, rather than in community-based, or economic or restorative or therapeutic or other justice strategies, it is a strategy that we no longer have control over, and one that we therefore will not be able to undo anytime soon.
If I were able to rewind the clock, I would spend considerably more time gathering data to better understand what victims actually need, and then spend considerably more time prioritizing that need. In the case of DV, victims tell us what they need. They need housing. They need a safe space to live, and not just a safe place to “be” temporarily, for the thirty or sixty days that most shelters offer. They need a home of their own and one that is in their community. I would look less to law generally, but far less to criminal law particularly, as a means of changing a social norm – especially ones that are sticky, such as DV and the abuse of nonhuman beings. I would look more toward the community and the building of relationships and alliances and ascertaining where values across various constituencies align, to create momentum for change at a grassroots level. The anti-DV movement has alienated communities of color in its efforts. This too, I fear, will not be undone any time soon.
Perhaps the most important lesson to draw about the criminalization strategy in the anti-DV realm is one that cuts deep. Given the incontrovertible data about overincarceration generally, but overincarceration of certain groups of people more than others, it is hypocritical (to put it mildly) for social movements to on one hand fight for equality using terms like dignity, liberation, and “humane” treatment while on the other turning a blind eye to the inhumane treatment of so many people in the criminal justice system. It is my hope that animal rights activists will, if they do not already, see the writing on the wall.
9.1 Libre’s Law
On a summer afternoon in 2017, Pennsylvania governor Tom Wolf gathered supporters and advocates to join him in an outdoor public bill-signing ceremony. The crowd assembled to watch Wolf enact “Libre’s Law,” a popular bipartisan piece of legislation. The mood was celebratory, as the governor had planned a festival of sorts, with the media, social media fans, and community members in attendance. Libre, the legislative namesake, was of course part of the spectacle. And due to his celebrity and the high-profile nature of his cause, Libre did something that nonlawmakers rarely get to do. He signed the bill. Libre, a Boston terrier, bore a quizzical look as his rescuer-owner, Janine Guido, guided his paw to a bowl of black ink, dipped it in, and pressed it firmly on the document. The moment elicited cheers from the crowd and barks from the dogs Wolf had invited as special “canine advocate guests.”Footnote 1
Animal rights groups and social media commentators heaped praise on Wolf for showing “compassion” and “caring” by supporting Libre’s Law, a tough-on-crime bill that created a barrage of new and strengthened misdemeanors and felonies for animal abuse and neglect. Wolf characterized it as a “landmark” piece of legislation that brought “long overdue” justice to dogs.Footnote 2 After signing the bill, the Democratic governor made several appearances with the photogenic pup, including organizing an anniversary celebration where Libre “got his own puppy cake.” A Wolf aide called Libre “a beloved and valued member of our team.”Footnote 3 When Wolf came up for reelection in 2018, his campaign ran an advertisement featuring Libre during peak prime-time slots on Pennsylvania channels. The “feel-good” and “smart” ad began with pictures of a sickly and starved Libre—pictures that had sparked international outrage – and moved to video of the healthy “bug-eyed miracle boy”Footnote 4 licking the smiling politician. “People say a dog is man’s best friend,” the actor voicing Libre proclaimed. “I say a Wolf is mine.”Footnote 5
The pictures of a near-dead Libre shocked the world and enabled his whirlwind transformation from sick puppy to social-media influencer, gubernatorial team member, and poster dog for zero tolerance of animal cruelty. One would expect the tale of his abuse would be similarly spectacular and involve horrific and malicious cruelty by his caretaker. However, Libre’s caretaker’s behavior was not shocking and gleefully cruel; in fact, it was questionably neglectful.
On July 4, 2016, Dextin Orme was making deliveries to an Amish farm in Lancaster county when he spied a nearly lifeless puppy in a dog cage. Orme convinced the farmer, thirty-three-year-old Benjamin Stoltzfus, to allow him to take the sixteen-week-old dog to a friend and former humane society employee. She, in turn, brought the dog to a pet hospital and contacted the Speranza Animal Rescue. Janine Guido, Speranza’s director, immediately took an interest in the puppy, whom she named Libre.Footnote 6 Guido was shocked at the puppy’s condition. Libre was suffering from severe mange, which left him hairless, covered in sores, and so malnourished and dehydrated that he could barely hold his head up. Normally, a dog so far gone would be euthanized, and Guido discussed that possibility with the vet. However, she decided to adopt the dog and give medical treatment a try.Footnote 7
Guido took to social media and posted pictures of the pathetic-looking little guy under the handle “Justice for Libre.”Footnote 8 The pictures provoked immediate and strong reactions and garnered Guido and Libre tens of thousands of followers. Libre’s story was featured in news outlets around the world. Throughout Libre’s treatment, Guido and Justice for Libre posted photos and updates, which fans reposted to a public rapidly becoming emotionally invested in Libre’s plight. As one local paper noted, “Videos of Libre went viral as his road to recovery was documented every step of the way.”Footnote 9 Instagrammers and Facebookers demanded justice in the form of Stoltzfus’s arrest and criminal prosecution.
Libre’s legions of supporters were accordingly crestfallen when Susan Martin, the Lancaster County SPCA director and an appointed animal control officer, declined to bring criminal charges. Outraged voices on social media and in the community demanded Martin’s ouster and the immediate commencement of a criminal case against the farmer. County District Attorney Craig Stedman was listening. He charged Stoltzfus with neglect – a summary offense punishable by a $750 fine and up to ninety days in jail – and commenced proceedings to strip Martin of her license to operate as a law enforcer.Footnote 10 This took Martin by surprise. She explained to the press that she made her charging decision in Stoltzfus’s case as she did in all her other cases: in consultation with the prosecutor’s office. Nevertheless, an exasperated Martin surrendered her policing license, noting that it would “allow more time for me to focus on the SPCA’s mission of caring for animals in need.”Footnote 11 Stedman, the prosecutor, subsequently transferred animal control enforcement to the police.Footnote 12 On July 25, 2017, just under a month after Governor Wolf signed Libre’s Law, the Lancaster County SPCA, still under scrutiny and out of funds, announced its closing.Footnote 13
Martin was obviously dedicated to animals. She saw that Libre was in terrible shape and must have been aware of the high-profile nature of the case. Why would she decline to charge Stoltzfus, and why would the DA’s office initially agree? According to Martin, there was simply not enough proof that the farmer had neglected the puppy. Shortly after Libre’s birth, Stoltzfus sold him to a buyer. The pup had been vaccinated and was healthy at the time of sale. However, two weeks later, Libre started showing signs of mange, and the buyer brought him to the vet.Footnote 14 When the vet confirmed a diagnosis of demodectic mange, the buyer returned Libre to Stoltzfus. The farmer took the afflicted pooch to his own vet for treatment. Martin and the SPCA confirmed that at the time Orme discovered Libre, the puppy was in fact under veterinarian care, but he was not responding well to treatment.Footnote 15
Advanced cases of demodectic mange or demodicosis can be deadly. The condition is caused by the mite Demodex canis. Demodectic mange is not contagious, and many dogs harbor the mite in small quantities. Demodex canis typically causes only mild symptoms, but it can cause serious illness in dogs with malfunctioning or immature immune systems. Because of their underdeveloped immune systems, puppies under eighteen weeks old are particularly vulnerable to demodicosis. Puppies with compromised immune systems are at risk of developing generalized demodectic mange,Footnote 16 a very serious condition where “the entire body may be covered with redness, infections, scaling, swelling, and crusts [and] the dog loses most, if not all, hair.”Footnote 17 In addition to the hairlessness and sores that made Libre look so pitiful, dogs with the severe condition “may lose their appetite, become lethargic and develop a fever.”Footnote 18 Breeders take note of puppies who contract generalized demodectic mange because it indicates genetic vulnerabilities in the parent.Footnote 19 Libre’s mom in fact also had a case of demodicosis, although much milder.Footnote 20 Experts note that “Generalised demodicosis can be very difficult to treat and requires persistent intervention and dedicated owner’s cooperation, since it is multifactorial and often complicated by concurrent infections.”Footnote 21
Stoltzfus pled guilty to the summary offense and paid a fine, and now he no longer keeps dogs. But the riled-up public was yet unsatisfied with what they considered a “slap on the wrist.”Footnote 22 They protested that Libre deserved better. Republican state senator Richard Alloway took note of the high-profile story, as did lobbyists from the Humane Society of the United States, Humane Action Pittsburgh, and Humane PA PAC.Footnote 23 Alloway, a conservative who had in the past sponsored antiabortion bills, was also pro-animal life.Footnote 24 He was moved to sponsor Libre’s Law because “no living creature should have to endure that kind of abuse.”Footnote 25 And thus was born the tough-on-animal-crime bill. Had Libre’s Law been in effect, Stoltzfus’s neglect charge would have been a serious felony.
Under the preexisting legal regime, animal abuse and neglect were summary offenses; repeat offenses were misdemeanors; and the main animal cruelty felony involved promoting animal fighting.Footnote 26 Libre’s Law changed things dramatically.Footnote 27 It established a duty for people who keep animals to maintain them by, among other things, providing “necessary veterinary care” and “clean and sanitary shelter.” Any failure to do so is “neglect,” punishable as a summary offense. Neglect is presumed when a dog has been tethered outside and there is “excessive waste or excrement where the dog is tethered,” the dog has “open sores or wounds,” or the dog has worn a “choke, pinch, prong or chain collar.”Footnote 28 Libre’s Law also created the crime of “cruelty” for when a person “recklessly illtreats, overloads, beats, abandons or abuses an animal.” Neglect or cruelty resulting in an animal’s serious bodily injury or death is a felony carrying seven years in prison. The law preserved the animal fighting felony and added a crime of possession of “animal fighting paraphernalia.” The legislation set forth a slew of other animal-related crimes like being the owner of an animal who attacks a service dog and transporting an animal “in a cruel or inhumane manner” and “work[ing]” an animal for more than 15 hours a day or 90 hours a week.”Footnote 29 That’s a lot of carceral intervention to put on the shoulders of one little terrier.
Libre’s Law supporters were thoroughly convinced that Libre and pets like him unconditionally supported the bill, despite that its sole aim was to broaden the state’s ability to cage human animals. Libre’s Law carried no other puppy benefits – no lifetime supply of kibble or free vet care. During the Libre saga, there was a distinct absence of advocacy for providing underresourced pet owners with the financial means to keep animals in sanitary and safe shelter. No one suggested a public option for people who could not afford the costly veterinary care required by animals who contract serious medical conditions like demodecosis. Indeed, Libre is alive today only because he received $27,000 worth of veterinary treatment. But luckily for Guido, Libre’s social media fame made it possible for her to cover the exorbitant medical bills by donations from supporters and online followers.
Since Libre’s Law 2017 passage, the state has prosecuted thousands of human animals – 21,206 to be exact. In 2017, the number was 967 cases, which spiked to 11,836 filings in 2018, and 8,405 in 2019. The majority of the cases (52 percent) were for neglect; 41 percent were for cruelty; and 7 percent were for aggravated cruelty.Footnote 30 That was the charge leveled against Eliezer Caraballo-Ocasio in 2018. Carballo kept his dog outside in a penned area with access to a shed. However, August 2018 saw unusually high ninety-degree temperatures in Pennsylvania. A neighbor called the police to report a dead dog in Carballo’s yard, and officers went to Carballo’s home, where they found him digging a grave for the dog. Carballo explained that he fed and watered the seven-year-old pit bull every day, but perhaps did not provide enough water given the weather. The police did find a food dish with food in it, but the water dish was dry. The authorities noted that the dog had access to a shed but the air conditioner in it was turned off. Because the dog had perished, prosecutors charged Carballo with a felony carrying seven years in prison.Footnote 31
Libre’s Law was always meant to be tough and punitive, and it substantially broadened the reach of the Pennsylvania penal system. What is striking is that that everyone – staunch conservatives, progressive socialists, and libertarians alike – agreed that the appropriate way to address animal mistreatment was to put more human animals in cages. Press in Pennsylvania and around the world celebrated the bill’s unopposed passage as justice for dogs and proof of possibility of functional government. Senator Alloway remarked at the signing, “It’s great, because this issue brings Democrats and Republicans together. Maybe we can take the good will of today and spill it over onto the budget process.”Footnote 32 Indeed, despite stark political polarization in Pennsylvania and the country as a whole, not one reporter could find someone with a bad word to say about Libre’s Law. One animal-rights lobbyist explained simply, “Compassion is not a political party issue. Both parties have huge supporters on animal issues.”Footnote 33
However, Democratic governor Wolf’s support for this tough-on-crime bill seems more fitting of the tough-on-crime era of 1990s, when Democrats vied against Republicans for the title of strongest general in the war on crime. It feels somewhat out of sync with today’s brand of incarceration-skeptical liberalism. Libre’s Law was enacted in 2017, years after many liberals and a growing number of conservatives had come to see mass incarceration as one of the most pressing problems in US society. “Smart on crime” was replacing tough on crime as the popular politics du jour.Footnote 34 While Alloway and animal rights advocates were advancing the tough-on-abuse law, Republicans elsewhere were promoting “criminal justice reform” bills to reduce the number of people incarcerated and under penal supervision.Footnote 35 Even self-proclaimed “law and order” president Donald Trump boasted about signing the 2018 First Step Act, which the Brennan Center has called “the most substantial criminal justice reform legislation in a generation.”Footnote 36
By the time Governor Wolf signed Libre’s Law, the country had already witnessed several shocking viral videos of horrific police killings of unarmed Black men and boys, including Michael Brown, Laquan McDonald, Eric Garner, and Tamir Rice. Black Lives Matter protesters and others had taken to the streets to protest the deeply entrenched racism of American policing, prosecution, and imprisonment.Footnote 37 In the summer and fall of 2020, another rash of high-profile police brutality cases, including the slayings of George Floyd, Ahmaud Arbery, Breonna Taylor, and Rayshard Brooks and the shooting that left Jacob Blake paralyzed, galvanized protests involving millions of concerned citizens around the world.Footnote 38 Much of the public watched in horror as state officers and federal paramilitaries brazenly used weapons of war, engaged in wanton violence, utilized terroristic tactics like “disappearing” protesters, and targeted reporters.Footnote 39 These events elevated police reform to the top of the liberal political agenda.
Still, by 2017, many progressive policy makers already recognized that aggressively policing socially, racially, and economically marginalized communities and prosecuting people for crimes associated with social vulnerability and poverty perpetuated, rather than interrupted, cycles of violence and community discohesion.Footnote 40 Commentators regularly decried the US carceral system that disenfranchised and imposed onerous collateral consequences on people of color and the impoverished, operatively fomenting their “civic death.”Footnote 41 Legal scholars and sociologists had produced study after study demonstrating that social services and economic empowerment are key to reducing intrafamily abuse and neglect and that interposing violent and life-ruining policing and punishment often exacerbates the underlying stressors that lead to harm.Footnote 42
And yet here was Libre’s Law entangling tens of thousands of people in the carceral web where they faced imprisonment, some like Carballo for many years. Under the law, the mechanism of ensuring that people provided “clean and sanitary shelter” and “necessary [medical] care” to pets was to imprison a subset of marginalized pet owners who drew the attention of the police. These human animals went to jails that, as the coronavirus crisis has shown, are anything but “clean and sanitary” and fall woefully short of minimum medical standards. Just across the Susquehanna River from Lancaster, where Libre was rescued, lies a large penal institution, York County Prison. On September 14, 2020, the prison was the site of a massive coronavirus outbreak.Footnote 43 Nick Lake was set to be released when he caught the virus and had to remain detained. Due to the virus ripping through the institution, the prison halted all in-person visitation, requiring inmates’ loved ones to use costly telephone services. Lake’s fiancée, Taylor George, explained that “she can speak to her fiancé on the phone, but … worried about other families who cannot afford that luxury.” The overall impact on her family was severe: “George said she had been counting on her fiancé coming home and help[ing] out. His children, she said, have asked questions including, ‘Is my dad going to die?’”Footnote 44
One would think that progressives would have questioned whether ratcheting up criminal punishment, rather than using other tools of contemporary governance, really did serve the interests of animals, including the marginalized pet owners for whom animal companionship was a small raft of joy in a sea of misery. But one would be wrong. Few justified Libre’s Law on the ground that criminal punishment would transform the neglectful into better future pet owners. To the contrary, advocates argued that abusive owners must surrender their pets and never have any again. Libre’s Law supporters made it clear that punishment is the point. For the law’s supporters, inflicting the pain of carceral confinement on human offenders evened the score and provided “justice” to animal victims. Jennifer Nields, cruelty officer for the Lancaster County Animal Coalition, remarked plainly, “This won’t stop cruelty but it will put an emphasis on the importance of justice for their suffering. The laws are recognition of their pain and what they deserve.”Footnote 45
9.2 Victims in the War on Crime
It may seem surprising that in the midst of a decarceral sea-change, liberals and libertarians alike reflexively embraced Libre’s Law, a punitive bill that broadened the reach to criminal law and substantially increased prison time for conduct so readily traced to economic precarity and social marginality. But for those who study the American crime victims’ movement during the tough-on-crime era of the 1980s and 1990s, the phenomenology and trajectory of Libre’s Law looks like familiar territory.
Victims’ rights and victim-speak have long galvanized politicians and people on both sides of the political aisle to support zero-tolerance criminal policies. The peculiarly American institution of mass incarceration was built upon a foundation of victims’ rights. Spectacular narratives of suffering at the hands of monstrous offenders have repeatedly united Americans in the abandonment of reasoned analysis of how to prevent harm in favor of an unreflective, punitive, but emotionally satisfying impulse to inflict severe pain on the evil criminals who harm innocent victims. Legal sociologist Jonathan Simon remarked in 2000, “Victims’ rights has emerged over the past 25 years as one of the most important social movements of our time” due “in part because of the enormous appeal of victimization to television media.”Footnote 46
Marshaled by prosecutors committed to high conviction rates and savvy politicians committed to reelection, victim narratives fomented public demands for more criminal prohibitions, weaker constitutional protections for defendants, and higher – even exorbitant – sentences. The sheer number of crimes that became life offenses during that era led to a 500 percent increase in the number of people serving life sentences between 1984 and 2016,Footnote 47 and a current prison system ill-equipped to meet the needs of its large and growing geriatric population.Footnote 48 A key principle of victims’ rights is that victims’ interests in justice-as-punishment should trump defendants’ interests in liberty and due process. Scholar Lynne Henderson observed, “‘Victims’ rights’ were – and are – used to counter ‘defendants’ rights’ and to trump those rights if possible. In an argument that traces back to at least the early 20th Century, people accused of crimes are probably ‘guilty as sin’ and undeserving of so much legal protection.”Footnote 49
Centering the victim in advocacy and law reform is not inexorably punitive. Such is evidenced in recent times by the heartening surge of survivor-led movements calling for restorative justice, alternatives to incarceration, and even penal abolition.Footnote 50 Although, in theory, victim-centered lawmaking and advocacy is not inherently carceral, the American victims’ rights movement, in practice, has always been. That movement was a key driver of the shift toward tough-on-crime politics in the 1980s and proved invaluable to the policy architects of the modern American penal state. Those in the victims’ rights movement and their allies insisted that “justice for victims” meant one thing, and one thing only: “meaningful,” as in long, imprisonment of the offender. As such, centering the victim fueled the carceral sentiments that culminated in the United States’ dishonorable distinction of most punitive nation on earth.
In the late 1970s, nascent victims’ rights organizations arose around the country with a stated goal of reforming “the poor response of the criminal justice system to victims’ needs.”Footnote 51 Early in the movement, many victims’ rights were about protecting victims from prosecutors who mistreated or ignored them. Not content to be cogs in a prosecutorial wheel, victims championed legal provisions to require prosecutors to give them notice of relevant dates, seek their input before making major decisions, and help them obtain monetary compensation.Footnote 52 But even in those early days, the movement had no tolerance for victims who wanted to avoid the criminal punishment system altogether.Footnote 53 Sociologist Marie Gottschalk notes that “activists in victims’ organizations tended to be overwhelmingly white, female, and middle-aged – a group demographic that is hardly representative of crime victims in general.”Footnote 54 They “were more supportive of the death penalty and of the police, prosecutors, and judges than were victims not active in these organizations.”Footnote 55
Ronald Reagan, who swept into office in 1981 with a pledge to take on crime, took notice of the fledgling movement. Reagan had emphasized the crime issue as part of his larger socioeconomic plan to shift the United States away from social welfare toward the “free market” by cutting taxes on the wealthy, gutting aid programs, deregulating financial institutions, and curtailing labor protections.Footnote 56 The so-called Reagan Revolution “changed the trajectory of America,” as President Obama remarked in 2008,Footnote 57 and it set the stage for today’s exorbitant levels of wealth inequality.
Reagan and his allies sold a program tailor-made for the 1 percent to the other 99 in part by recasting the problems of poverty as products of criminality. Reagan observed, “Individual wrongdoing, they told us, was always caused by a lack of material goods, and underprivileged background, or poor socioeconomic conditions. And somehow … it was society, not the individual, that was at fault when an act of violence or a crime was committed.”Footnote 58 He concluded, “Is it any wonder, then, that a new privileged class emerged in America, a class of repeat offenders and career criminals who thought they had the right to victimize their fellow citizens with impunity.”Footnote 59 Reagan’s narrative reversed the moral order, transforming the “underprivileged” poor into a “privileged class” of criminals and society’s victims of poverty into “victimizers.” He strategically publicized the image of scary criminals to frighten voters into believing that crime control, rather than employment, health, or other services, was the only legitimate form of federal domestic governance.
Still, scare ads about criminals may inspire fear, but narratives and images of brutalized innocent victims inspire the loathing that drives punitivity.Footnote 60 Elayne Rapping observes that “[b]eneath the compelling emotion that informs the demands of victims, there is all too often an ugly and irrational cry for blood.” Drawing on Lauren Berlant’s critique of the “sentimentality” of Reagan-era conservatism,Footnote 61 Rapping asserts that the victim’s rights movement, which involves “the valorization of ‘surplus’ or excess feeling, the tendency to substitute passion for reason in determining political and legal policy,” serves as a prime example of political sentimentality.Footnote 62 The innocent victim/monstrous offender narrative in “television, in fiction, in docudrama, in tabloids, and now in trials” effectively triggers our “melodramatic imagination” where we crave “moral simplification, [and] reassuring fantasies.”Footnote 63
Sentimental images of this sort are particularly effective – and dangerous – because they “seem to be superpolitical” and “beyond ideology,” when they are in fact “deployed in the service of an agenda which is intensely political and ideological,” Rapping observes.Footnote 64 She concludes that “a political movement based on such precepts must be viewed with grave suspicion.”Footnote 65 Reagan indeed knew the power of sentimentality, and in the first week of his presidency and every April thereafter, he pronounced “Victims’ Rights Week.”Footnote 66 In 1982, his administration formed the President’s Task Force on Victims of Crime.Footnote 67 Asserting that the criminal system had lost “essential balance,”Footnote 68 the Task Force advocated nothing less than a reversal of the due-process regime put in place by the liberal “Warren Court.”Footnote 69 The Task Force’s recommendations, which included abolishing parole, limiting pretrial release, and limiting judges’ sentencing discretion, became the very laws that paved the path to mass incarceration.Footnote 70 Of course, the Task Force did not recommend addressing the endemic poverty and inequality that impacts the marginalized people who constitute the bulk of actual crime victims.
That’s because the movement was never about the heterodox class of actual crime victims. “To maintain its fever pitch of hatred, the war on crime need[ed] ever more, and ever more sympathetic, victims,” Markus Dubber remarks.Footnote 71 The victim images that drove carceral policies were very specific. First, victims were innocent. Within the rhetoric, victims were “‘blameless,’ innocent, usually attractive, middle class, and white.”Footnote 72 These images stood in contrast to images of criminals, who were “subhuman … monsters” or alternatively “the ominous, if undifferentiated, poor, angry, violent, Black, or Latino male.” Such imagery relieved the public of the burden of grappling with the contested ethical questions of criminality and state-imposed pain, rendering penal management akin to pest management. “The identification with the victim at the expense of identifying with the offender provides an additional benefit to the onlooker,” Dubber observes. “By denying any similarities with the offender upon which identification could be based, the onlooker transforms the essentially ethical question of punishment into one of nuisance control.”
Second, victims were devastated. Berlant specifies that it is “traumatized subjectivity” that “replaces rational subjectivity as the essential index of value for personhood and thus for society.”Footnote 73 To be sure, the victim label confines people to one identity – the harmed object of a private wrongdoer. “Any richer sense of the person undermines the claim of victimhood, because victimhood depends on a reductive view of identity,” Martha Minow remarks.Footnote 74 Of course, this one-dimensional vision of a ruined victim sometimes ran up against harmed people’s self-conception, and they chose instead the more empowering label of “survivor.” Nevertheless, the devastated victim image tapped into “an almost religious view of suffering, empowering those who suffer with … reverence from others,” as Minow notes.Footnote 75 President Bill Clinton’s attorney general Janet Reno, in a speech supporting the federal Victims’ Rights Amendment, called victims “but little lower than the angels.”Footnote 76 Decades later, candidate Donald Trump picked up on this theme and featured “Angel Moms,” the mothers of children killed by immigrants, at his rallies.Footnote 77 Through such reverential veneration, Dubber asserts, the public can “[purge] itself of deviant elements and thereby heal itself as it salves the victim’s pain.”Footnote 78
Finally, and perhaps most importantly, victims were vengeful. Forgiveness, when mentioned at all, was a concept appropriate for consideration only in addition to, not in lieu of, punishment. Only after the defendant accepted responsibility, apologized, and received his life sentence (or death sentence) could victims say, “I forgive you – may God forgive you too.” Law professor Elizabeth Joh observes that victims’ rights ideology could not “generate[ ] or tolerate[ ] narratives in which victims’ families can exercise mercy, kindness, or forgiveness towards defendants.”Footnote 79 These vengeful victims invariably desired more involvement with police, prosecutors, and the criminal process.Footnote 80 Their primary targets of disapprobation were insufficiently zealous prosecutors, defense attorneys, due process protections, and lenient judges. Victims’ rights discourse thereby situated victims’ interests as necessarily separate from and adverse to those of defendants. Victims’ and defendants’ interests were also zero-sum: the more the defendant suffered, the more the victim healed.Footnote 81
These attributes made idealized victims formidable weapons in prosecutors’ and politicians’ anti-crime arsenals. First, the combination of innocence and devastation fomented a strong sentimentality, such that the public always sided with the victim. Henderson remarks, “The symbolic strength of the term ‘victims’ rights’ overrides careful scrutiny: Who could be anti-victim?”Footnote 82 Sentimental reverence generated near-total deference to victims’ purported wishes. Minow notes that “there is a strong tendency for people to couple a claim of victimhood with a claim of incorrigibility – that the victim knows better than anyone else about the victimization, and indeed, the victim cannot be wrong about it.”Footnote 83 Second, with the victim now lionized and beyond challenge, the presumption of vengefulness came in to establish the victim as inalterably in opposition to the defendant. Thus, victims’ interests always overlapped with prosecutors’ interests, unless of course the prosecutor was lenient, in which case the victim’s interest overlapped with whomever was most punitive.
This highly specific victim image, carefully curated by tough-on-crime prosecutors, profit-seeking media, and opportunistic politicians, actively excluded the marginalized men and women who disproportionately suffer from crime but view prosecution with a jaundiced eye.Footnote 84 Indeed, many crime victims, and especially victims of color, have had contacts with the criminal system as defendants, witnesses, or even pedestrians subjected to invasive stop-and-frisk policies, which make them wary of involvement with the state’s penal apparatus and its functionaries. Moreover, victimhood and criminality narratives have always had distinctly racist overtones, situating innocent whiteness as the foundation of the victim image and blackness and brownness as the foundation of criminality. Stephen Carter notes that victims’ rights rhetoric’s “[e]motive power would be lost were one to conjure instead an image of ‘innocent blackness’ surrounded by ‘threatening whiteness.’”Footnote 85
In 2007, the Bureau of Justice Statistics released a telling report on Black victimization between 2001 and 2005.Footnote 86 It found that Black people were victimized at significantly higher rates than white people and were about twice as likely to be victims of sexual assault, robbery, and aggravated assault.Footnote 87 Moreover, in 2005, African Americans made up approximately 13 percent of the US population but 49 percent of the country’s homicide victims.Footnote 88 Among the Black population, victimization correlated with being male, young, low-income, and residing in an urban area.Footnote 89 However, in victims’ rights parlance, the poor, young, Black, urban teen was never a victim but the ultimate criminal – a “superpredator,” as some nineties Democrats infamously declared.Footnote 90 Victims’ rights supporters were quite open that not all people harmed by crime merited the victim label. Supporting a federal Victims’ Rights Amendment in 1996, President Bill Clinton added a seemingly obvious caveat: “[W]e sure don’t want to give [rights to] criminals like gang members, who may be victims of their associates.”Footnote 91
As much as they were racialized, victimization narratives were also deeply gendered and classed. They centered on nonpoor white women, along with children, as the category of people against whom violence – especially sexual violence – was particularly intolerable and disgusting. America’s Most Wanted was a long-running television crime series created by John Walsh, the father of a murdered child, who turned anti-crime warrior. The show aimed to deputize all Americans in catching “antisocial loners and lunatics [who] prey[ed] on women and especially children.”Footnote 92 The show’s producer, Michael Linder, was surprisingly honest about which victims counted: “A drug dealer who shoots another drug dealer is not as compelling as a child molester or murderer … If a man brutalizes innocent children, that definitely adds points.”Footnote 93 The fascination with white women’s and children’s vulnerability to extreme violence persists even in this incarceration-skeptical era through the proliferation of true-crime broadcasts that, as Monika Bauerlein notes, tell “stories largely about white victims, based on uncritical accounts of police and prosecutors.”Footnote 94
9.3 Victims’ Rights and Policy Wrongs
The tough-on-crime era produced a glut of laws created in the image of – and often named after – victims. Because the laws were based on narratives of victimhood carefully curated by political actors, they often reflected a distorted picture of the problem and exceedingly narrow view of how to remedy it. For example, in the 1980s and 1990s, advocates pressed for laws to take domestic violence [DV] seriously by mandating that police arrest and prosecutors pursue cases against all alleged DV offenders. These reforms were propelled by stories, both real and fictionalized, of white women who had been abused and wanted to separate from the abuser, but were ignored and left to be brutalized (and even die) by indifferent police officers and lenient prosecutors. In the 1990s, as Laurie Levenson notes, Nicole Brown Simpson became “synonymous with the image of the battered wife – a young, beautiful woman, unable to escape her abuser, and unable to get the criminal justice system to respond to her pleas.”Footnote 95
Once these spectacular and racialized narratives established battering as a function of the absence of policing and punishment, law enforcement became the solution in and of itself. With leniency defined as injustice, every tough-on-crime reform became an instance of gender justice, regardless of the consequences. This rendered the questions of whether such reforms in fact deterred violence, were more beneficial than harmful, or even satisfied victims totally beside the point. And, as it turned out, the tough-on-DV program was no panacea for battered women, in large part because the marginalized women of color who made up a substantial portion of the DV victim population had been excluded from the prevailing narrative. From the beginning, Black women warned advocates of carceral DV policy that Black victims often bore a very different relationship to the criminal system from white victims and did not invariably desire more involvement with it or even for the defendant to have more involvement with it. As one activist of color put it, “I think white women talked more as if the courts belonged to us [all women] and therefore should work for us where we [women of color] always saw it as belonging to someone else and talked more about how to keep it from hurting us.”Footnote 96
Indeed, activists of color had argued that money, services, shelter, job opportunities, childcare, and the like would go a long way in aiding abused women. But such welfare and social services would not be of much use to nonpoor white victims because of their “reluctance to reduce their’s [sic] or their children’s standard of living” and the “welfare stigma” that “prevented [them] from considering AFDC payments as a potential solution,” as one advocate noted frankly in 1978.Footnote 97 For such women, arrest might be the most promising avenue toward reforming her husband or creating favorable divorce conditions. Of course, arrest would do little for poor women, for whom divorce money would be like getting blood from a turnip. Indeed, DV studies in the late 1980s confirmed that arrest reduced violence among white, employed men but aggravated violence among Black, unemployed men.Footnote 98 Researchers warned, “If three times as many [Black people as white people] are arrested in a city like Milwaukee, which is a fair approximation, then an across-the-board policy of mandatory arrests prevents 2,504 acts of violence against primarily white women at the price of 5,409 acts of violence against primarily Black women.”Footnote 99
The ideal victim narrative obscured the fact that victims of DV also engaged in violence, even if mostly defensive, which made them vulnerable to arrest under strict enforcement policies. The state of California compared DV arrest data from 1988, before mandatory arrest policies, to data from 1998. It found that the arrests of men rose by 60 percent, but women’s arrests rose by 400 percent.Footnote 100 Stripping police of discretion, it turned out, countered their masculinist instinct not to arrest women. And of course, this newfound willingness to arrest women disproportionately impacted Black women.
Moreover, the innocent yet vengeful victim narrative hid many other reasons why DV victims did not want to interact with police and prosecutors. In 2015, the ACLU published the results of a survey of more than 900 DV service providers. The survey asked them to, among other things, “identify the primary reasons survivors do not call or cooperate with law enforcement.”Footnote 101 Providers responded that most victims were rightly afraid that police would call in Child Protective Services to investigate them for “failure to protect.” In addition, the providers noted that some “clients were committing crimes (using illegal substances, participating in sex work, had a taser in their possession, etc.) while they were being abused” and were “afraid of being prosecuted.”Footnote 102 Indeed, one respondent observed that in her community, “checking victims for warrants is so encouraged, it is part of institutionalized policy.”Footnote 103 These were just some of the many ways that carceral policies harmed victims who had been excised from the idealized narratives that drove DV policy.
These costs to victims came on top of the costs to the defendants – disproportionately men of color – and their families and communities. The vengeful victim narrative presumed that what was bad for the abuser was necessarily good for the victim, but the ACLU survey makes clear that in the DV context, the lives of the victims and defendants are intertwined and arrest is not a zero-sum game. One provider observed:
A lot of victims don’t want to call the police because they don’t want the abuser to be incarcerated or deported, and they don’t want to bring DSS down on their families and lose their kids. In communities of color and immigrant communities these concerns are paramount. Victims are afraid that if they call the police, the abuser will be subjected to a racist system of “justice” that leaves black families devoid of fathers (if he’s in prison that also means no child support, no help raising the kids, etc.) and Latino families [are] in fear of having loved ones deported (often back to places they left because of violence and/or economic hardship).Footnote 104
Perhaps the clearest examples of idealized victims’ rights narratives propelling terrible policy is the war on sex offenders. In the 1980s and 1990s, media relentlessly covered child kidnappings, rapes, and killings that represented “every parent’s worst nightmare.” The names Adam Walsh, Jacob Wetterling, Polly Klaas, and Megan Kanka were seared into public consciousness and memorialized in the titles of federal anti–sex offender legislation.Footnote 105 Legislatures capitalized on this fear and scored political points by passing sex offender punishment and management regimes that tested the limits of constitutional powers, including mandatory registration and community notification, strict residency restrictions, and for some offenders, indefinite civil commitment.Footnote 106
In fact, however, such brutal serial child murders were exceedingly rare, and the common assaults involved lower-level sexual touching perpetrated by familiars, often by other children.Footnote 107 In 2009, “juveniles account[ed] for more than one-third (35.6 percent) of those known to police to have committed sex offenses against minors,” according to a Bureau of Justice Statistics report.Footnote 108 The report further notes, “Early adolescence is the peak age for offenses against younger children.”Footnote 109
In 2006, John Walsh of America’s Most Wanted fame successfully lobbied the US Congress to pass the “Adam Walsh Child Protection Act” on the twenty-fifth anniversary of his son’s death. Federal sex offender law was already exceedingly harsh by that time, but the Walsh Act symbolically increased already exorbitant penalties and broadened eligibility for registration and civil commitment. These draconian provisions were irrelevant to nearly all sex-crime arrestees, whose cases were governed by state, not federal, law. Federal law on violent crime has limited jurisdiction, generally affecting only defendants in federalized areas, including at the time Indian territory. The federal public defender had warned that Native Americans would bear the brunt of these laws.Footnote 110 In 2006, “[n]early three-quarters of federal sex abuse defendants were American Indian or Alaska Native,” according to the Department of Justice.Footnote 111 These suspects “tended to be younger … and less educated” than other offenders.Footnote 112
The Walsh Act also required states to register juveniles as sex offenders. The irony is painful: Children, so revered as angels when used as symbols of the horrors of abuse, lost all claims to innocence when accused of sex crimes, so much so that few were troubled about subjecting them to state-sanctioned brutality and sexual abuse. A 2016 New Yorker article profiled child registrants’ gut-wrenching tales of homelessness, inability to attend school, public shaming, violence, humiliating “medical treatment,” and suicide.Footnote 113 There is Charla, who was placed on the registry at ten for pulling a boy’s pants down at school and whose photo still appears online under the banner “Protect Your Child from Sex Offenders.” There is Anthony, convicted under “statutory rape” laws for consensual sex as a teenager. Years later, the conditions of his sex-offender status prohibited him from living with his newborn daughter, and his violations of those conditions landed him a ten-year sentence. There is Leah, who at age ten, was convicted of molesting her siblings. During college, she and her boyfriend drove out of state and stopped at the local police station so that she could fulfill her sex-offender notification requirement. The front-desk officer said, “We don’t serve your kind here. You better leave before I take you out back and shoot you myself.”Footnote 114
The government intervention imposed on these children is Kafkaesque, involving “youth shaming”Footnote 115 treatments like masturbation logs and penile plethysmography―a process utilizing a machine that physically measures the subject’s erection upon viewing sexual images, which was once used in the military to ferret out homosexuals. One pediatric psychologist derided them as “coercive techniques of doubtful accuracy, untested benefit, and considerable potential for harm.”Footnote 116 Today, the expert consensus is that the draconian sex offender laws did not reduce, and may have increased, child sex offenses.Footnote 117
9.4 Humanized Animals vs. Subhuman Humans
When Libre’s story broke on social media, a concerned citizen wrote a letter to the editor of a Lancaster newspaper stating the photos of the sickly pup “rip my heart apart.”Footnote 118 The writer insisted that “the owner, whoever he or she is, needs to pay for this horrific, draconian crime.”Footnote 119 The letter urged authorities to mete out meaningful punishment to the human to demonstrate that state authorities “are kinder, more compassionate people than to allow this cruelty to continue” and to “find[ ] justice for Libre.”Footnote 120 “I have never seen such sadness on a puppy’s little face,” the writer lamented. Notice the contrast. The author humanized and sentimentalized Libre, describing the look on his face as one, not of pain, but of sadness.Footnote 121 At the same time, the person responsible was totally devoid of any description – indeed any identity or gender. The only relevant information given was that the unnamed person did something “horrific” and “draconian.” The more the animal was humanized, the more subhuman the human became.
The rhetoric of advocates and policy makers who support tough-on-animal abuse reforms like Libre’s Law mirrors victims’ rights rhetoric. Advocates pit innocent, devastated animals against evil, monstrous human animals. One of the key features of animal rights’ rhetoric is contrasting animals’ inherent innocence with human animals’ sinful and guilty nature. Applauding Libre’s Law, the editorial board of an Erie, Pennsylvania, paper stated, “Animal cruelty is sickening in its own right because animals are so unevenly matched with human strength and capacity for evil.”Footnote 122 Within the discourse, animals are innocent, by definition. They can entertain the human emotions of sadness, love, longing, loyalty and the like, but they do not have a “capacity for evil.” The sex animals impose on other animals is never rape. The harms, even deaths, they cause are never assaults and murders. Within the narrative, animal-caused harm is either the fault of the bad human owner or a product of the animal’s morally neutral instincts.
While animals have no capacity for guilt, human animals who offend against them have no capacity for innocence. Consider the 2019 case of Heidi Lueders, who ran “Bully Breed Rescue” and was charged with several counts of misdemeanor animal cruelty when five dogs in her care died. Photos that depicted the dogs as little more than skeletons surrounded by feces, piles of trash, and drug paraphernalia circulated on the internet. Protesters from “Desmond’s Army,” named after another dog who was abused and killed, rallied outside the Bridgeport, Connecticut, courthouse in the dead of winter on the day of Lueders’s hearing. Holding signs supporting the “Fairfield Five” (the deceased dogs), the group demanded that Lueders be charged with felonies. Protester Anette Matthews told the press, “This is one of the most horrendous cases of animal cruelty. Knowing that she disguised herself as an animal rescuer … makes her the worst kind of monster.”Footnote 123
The prosecutor heard Desmond’s Army’s clarion call and during the hearing upgraded Lueders’s charges to felonies. The judge appointed the five dead dogs a victim advocate, as required under the 2016 “Desmond’s Law.”Footnote 124 Lueders’s lawyer explained to the press that his client “is not a bad person but a victim of the opioid epidemic. And this situation is a direct result of an addiction to opiates.” Protester Nicola Improta was unmoved: “I’m here for justice and to show support. This woman needs to be taken down with the fullest extent of the law … Drug abuse is no excuse.”Footnote 125 There was no chance that Lueders’ drug addiction would elicit sympathy because, within the activist narrative, the animal cruelty is just the of tip of the defendant’s larger violence iceberg. Animal advocates regularly remind us that defendants charged with animal abuse are rotten to the core. If a person is cruel to animals, the argument goes, it is likely they also engage in violence against people.They may even go on to commit a mass atrocity.Footnote 126
A critical component of Desmond’s story, for example, was that the man who beat and killed Desmond did so as part of a larger pattern of abusing and harassing his ex-girlfriend. Indeed, the idea that animal cruelty correlates with domestic violence against human women frequently came up in discussions of Libre’s Law, although Libre’s case had nothing to do with DV. The “animal cruelty predicts DV” argument is an odd argument from a substantive criminal law standpoint. Even if there were clear evidence that animal cruelty (in all its forms) predicts violence against humans – which there isn’tFootnote 127 – the law punishes people for the crimes they committed, not for uncharged acts that might correlate with future crime. The claim that we need to toughen animal abuse laws to get at batterers completely ignores that there are already a plethora of laws that criminalize – even overcriminalize – domestic violence against humans. And, of course, the harsh penalties in Desmond’s Law and Libre’s Law apply with equal force to defendants who, like Lueders and Stolzfus, have no connection to domestic abuse. In the end, the argument that animal cruelty correlates to violence against humans seems like a ploy to make the non–animal rights camp comfortable with punitive animal cruelty. They justify animal cruelty laws as getting at “real” bad guys who harm humans too.
In his groundbreaking book critiquing carceral animal law, Beyond Cages, Justin Marceau discusses cases similar to Lueders’s where activists invoke images of innocent devastated animals and juxtapose them with perpetually culpable, monstrous offenders. He tells a tale involving a severely neglected and sick dog, Sammy, who like Libre and Desmond, drew widespread public sympathy and calls for the owners, a couple, to be prosecuted to the fullest extent of the law. At the time of Sammy’s neglect, the couple was going through a terrible divorce, and the husband was dying of kidney disease. Both struggled with depression and considered suicide. Sammy had been residing with the husband when he degenerated, and the wife remarked, “I should have foreseen that Sammy wouldn’t have been safe with my husband, but I didn’t know [my husband] was going to get so sick … If I had foreseen it, I would have taken Sammy with me… I’m sorry it turned out the way it did.” Marceau describes the disturbing details of the couple’s day in court:
More than 250 people filed into the municipal courtroom wearing shirts demanding justice for Sammy. At one hearing a woman was removed from the courtroom for yelling “go kill yourself” at the man dying of kidney disease and suffering from depression. The prosecuting attorney explained that he was “very satisfied” with obtaining incarceration for both parties… . Indeed, the local SPCA called the maximum sentence for the ill, suicidal man “admirable” insofar as it reflected a strong stand against animal cruelty, even though the cruelty took the form of an omission rather than a set of brutalizing, malicious acts. Many other animal protection groups were involved in urging a maximum sentence, and their advocacy likely had a direct impact on the judge, who explained at sentencing that justice would not be served “[u]nless the defendants are sentenced to [maximum] imprisonment for their depraved acts toward Sammy.”Footnote 128
Animal cruelty activists and zealous prosecutors urge judges to condemn human animals to prisons – sites of domination, discrimination, and dehumanization – as an act of “compassion” and “kindness.” Advocates’ strategy of selectively anthropomorphizing animals as innocent victims produces the exact kind melodramatic sentimentality that Rapping and Berlant warn enables “irrational” demands for blood.Footnote 129 Jungian psychologist Marie-Louise von Franz’s remarks that “where there is sentimentality there is also a certain amount of brutality” and provides this example: “Goering [a high-ranking Nazi] without a qualm … could sign the death sentence for three hundred people, but if one of his birds died, then that fat old man would cry. He was a classic example! Cold brutality is very often covered up by sentimentality.”Footnote 130
Having sentimentalized the animal victim, advocates have no qualms about imprisoning vulnerable human animals of all kinds. To be sure, the Libre conversation left little room for thoughtful analysis of not just the costs of widespread incarceration for pet-related offenses but also the simple issue of whether Stoltzfus deserved to be imprisoned. Instead, the images of Libre’s sad, hairless pink snout and swollen-shut eyes on his otherwise adorable floppy-eared puppy body were enough to dethrone anyone’s reason in favor of the basest desire of a pound of flesh from the identity-less “monster who did that.” It should thus come as no surprise that animal rights activists even support imprisoning children who run afoul of animal abuse laws and treating those children as adult offenders.Footnote 131 In animal victims’ rights rhetoric, juvenile defendants are not vulnerable, troubled, and traumatized kids but “ticking time bombs” of mass violence.Footnote 132 Activists are content to be unaware of or indifferent to the suffering of vulnerable youths caged in adult facilities.Footnote 133 Marceau criticizes the “paradoxical notion … that the caging of children will liberate animals.”Footnote 134
Indeed, activists give no quarter to defendants who are definitionally innocent. Criminal law principles dictate that unintentional and accidental harm generally does not merit punishment. Nevertheless, activists have agitated for “strict liability” animal cruelty laws. Strict liability crimes are rare and disfavored because they land people in jail who are without fault. Strict liability animal cruelty laws dictate that if a pet is harmed, the owner can be imprisoned even if she did not intend the harm and took reasonable steps to prevent it. Prosecutors are forthright that they like strict liability because it eases their burden to prove the owner acted intentionally or unreasonably.Footnote 135 Activists similarly believe that defendants should “have no excuses” for animal harm. They are content to sacrifice well-intentioned people whose pets’ deaths are tragic accidents on the altar of zero-tolerance. Marceau concludes that the strict liability issue demonstrates “how far the animal protection movement has treaded outside of mainstream thinking on fairness in criminal law.”Footnote 136
As with human victims in victims’ rights discourse, animal victims are, or at least look, devastated. Many of the high-profile animal cruelty cases involve descriptions of brutal, deviant, and intentional acts of violence. This is despite the fact that, as the Libre’s Law statistics demonstrate, few animal cruelty cases involve deliberate torture. Narratives of rare but spectacular brutality have always been an essential ingredient of victims’ rights, as the sex-predator panic example demonstrates.Footnote 137 In our social-media era, disturbing pictures can substitute for sadistic stories as proof of animal victims’ devastation. There are a variety of ailments that cause dogs to sicken, suffer, and die, but few appear as horrible as generalized mange, which was Libre’s affliction. Even though, “[s]urprisingly, a dog with demodectic mange usually does not itch severely,” as veterinarian Ernest Ward remarks,Footnote 138 mange is tailor-made for evocative Instagram posts. The American Kennel Club notes, “If you follow news about dogs, you know what an extreme case of mange looks like. It’s a common skin disease in dogs and puppies that are strays, neglected, or abused. These dogs appear to be beyond hope – hairless, with skin covered in sores or with thickened, hard, crusty patches … [But] as you’ve seen in the many ‘miracle dog’ stories in the news, even serious cases can be treated effectively.”Footnote 139 One blogger put it succinctly, “Dog mange often looks scarier than it is.”Footnote 140
The final characteristic of the ideal victim is vengefulness. Recall the simple polar logic of the victims’ rights movement that punishment is in itself justice for victims, regardless of the larger consequences. In the DV context, focusing on proprosecution victims obscured the interests of many other victims who were not eager to pursue retribution through the state penal apparatus. In the sex offender context, the laws driven by the vengeance narrative were so broad that they captured defendants (i.e., nine-year-old kids) who were nothing like the “monsters” against whom the parents of murdered children sought retribution.Footnote 141 Nevertheless, there were plenty of vocal victims who made clear that they were, in fact, out for blood. Of course, it is another question altogether whether harmed victims or grieving family members should dictate criminal law policy in a civilized society. One Oklahoma City bombing victim, Bud Welch, testified to the Senate committee on the Crime Victims’ Rights Amendment that after the bombing, he “wanted McVeigh and Nichols killed without a trial” and warned that “victims are too emotionally involved in the case and will not make the best decisions.”Footnote 142
The carceral animal camp similarly presumes that punishment serves animals’ interests in “justice.” In a recent article, Mary Maerz makes an interesting “animal rights” case in favor of “pro-carceral” animal laws and policies, and in particular, the prosecution of slaughterhouse workers for animal cruelty.Footnote 143 Maerz concedes a lot to the anticarceral camp: First, that the “individual deterrent abilities of these prosecutions on factory farm or slaughterhouse workers remains doubtful”; second, that “criminal prosecution of anticruelty laws in factory farms and slaughterhouses … undoubtedly forms part of the system of mass-incarceration in the United States”; and third, that prosecutors target “workers – mostly Hispanic, increasingly undocumented, and impoverished – perpetuat[ing] the criminal justice system’s unbalanced targeting of minorities and those of low socioeconomic class.”Footnote 144 Despite these concessions, Maerz concludes that such carceral interventions are nevertheless warranted. She argues, “While pro-carceral animal law likely cannot be justified by empirical or criminological bases, criticism of these criminal prosecutions asks the animal protection movement to place anthropocentric social movement concerns above the interests of animals.” Such a demand is inconsistent with “the animal rights movement which, at its foundation, refuses to compromise the interests of animals over human interests.”Footnote 145
The idea that animals’ interest in punishment necessarily trumps defendants’ and society’s interest in reducing ineffective, painful, and racist mass incarceration tracks victims’ rights rhetoric, although most victims’ rights advocates, unlike Maerz, do not openly concede that the penal system is racist and ineffective. Maerz does not explain but simply presumes that animal victims have a unique “interest” in racist and ineffective punishment of humans, so much so that to believe otherwise is “anthropocentric.”Footnote 146 Human victims can speak for themselves, as conditioned and constrained as that speech may be. With animal victims, it is not just a matter of advocates choosing which vengeful victims speak – the advocates speak for a class of victims who can never speak for themselves. In the Justice for Libre movement and elsewhere, activists make the conclusory assumption that animals invariably feel like Bud Welch in the immediate aftermath of the bombing or devastated vengeful dad, John Walsh – they want justice through strict punishment.
Gayatri Spivak has famously asked, “Can the subaltern speak?”Footnote 147 And at the risk of oversimplifying a question with many components and valences, let me focus on Spivak’s caution about description and historiography. Spivak asserts that when the scholar, even a sincere anti-imperialist, “subaltern studies” scholar, undertakes to represent an as-yet-unrepresented or “insurgent” consciousness of a subaltern group, “what the work cannot say becomes important.”Footnote 148 Given the risks of essentializing and interposing one’s own consciousness on the group, even the “texts of insurgency can only serve as a counterpossibility for the narrative sanctions granted to the colonial subject in the dominant groups.”Footnote 149 If sympathetic scholars representing the consciousness of a subaltern group that has language and texts is “consistently troublesome,” then what of representing the consciousness of a group incapable of language?Footnote 150 In other words, we might ask, “Can the subhuman speak?”Footnote 151
I do not feign deep knowledge of the philosophical literature on animal consciousness and how it grapples with epistemological limitations, essentialism, and colonialism. And intervention into this area is well beyond the scope of this chapter and competency of its author. I invoke Spivak’s work to highlight that “our thinking on [animal’s] behalf is presumptuous,” as Joyce Chaplin puts it.Footnote 152 If, as Spivak observes, the deep dives into histories of colonized people’s texts carried out by scholars with clear-eyed views of the limitations of their disciplinary methods are consistently troublesome, then certainly claims about animal consciousness are freighted with heavy uncertainty. Chaplin opines, “We do not know whether animals are like us, and may never know, and it should not matter. Animals may think (and therefore speak) in ways we may never comprehend.”Footnote 153 Anticruelty activists’ claims about animal consciousness are not epistemologically privileged but just functions of the human emotions and thought patterns that have for centuries driven state-backed punishment, which is itself an essentially human endeavor.
In other words, the claim of animal rights commentators like Maertz that there is a unique animal interest in punishment is no less anthropocentric than any other claims about animals and criminalization. And, if we are to anthropomorphically invest animals with human sentiments, why not invest them with more nuanced ones?Footnote 154 Perhaps animals’ thoughts about the wrongs done to them and appropriate redress are heterodox and conflicting. Perhaps some animals who have been caged are not so sanguine about policies that put human animals in cages, much in the way that formerly incarcerated victims are not often eager to participate in prosecutions. Perhaps some abused pets, like humans abused by parents or other loved ones, want better treatment but prefer to remain with their human companions. These are of course, just “counterpossibilities” that stand in distinction to the presumption of animal-victim vengeance. And it is certainly possible that many harmed animals see criminal punishment as justice. Nevertheless, it should be evident that with so many limitations to accessing animal consciousness, the purported subjective desires of the animal victim should not be the foundation of law, especially law that contributes to inhumane racialized mass incarceration.
Over the past several years, many Americans have come to see racialized policing and mass incarceration as among the most pressing human rights issues of our time. Despite the growing radical awareness of the grave costs of addressing social problems, community dysfunction, and individual harmful behavior through state-sanctioned violence and detention, the animal victims’ rights lobby continues to push for more and stronger criminal laws – ones that go to the very edge of constitutionality and long-standing criminal liability principles. Marceau observes that the animal rights movement has become a “single-issue” movement pushing for criminal law reform by “pursuing mandatory minimums, the prosecution of juveniles as adults, more felony prosecutions, offender registries, and similar crime-based [reforms].”Footnote 155
History has shown that activist groups concerned with larger social change can find success with criminal law, especially when they tap into the simplistic, racialized, and sentimentalized victim-versus-offender narratives that provoke the public’s punitive zeal. But advancing within a system that can do little more than impose inhumane treatment on human animals is a hollow success. When animals, including human animals, are subjected to brutality and rigid confinement, they do not become more pacifistic and well adjusted. They become wounded, traumatized, and even violent. History has also starkly shown that investment in the criminal apparatus often comes at the expense of noncriminal aid that prevents abuse and neglect in the first place. Consequently, when privileged human activists expand the carceral state by creating sentimentalized narratives about idealized pets who demand justice through the suffering of humans – primarily underprivileged humans – it is not an act of compassion and kindness, but one of cold brutality.
The “close linkages across [human] prisoner and [nonhuman] animal carcerality and captivity”Footnote 1 are especially salient in the context of solitary confinement. As social psychologist Craig Haney, who has extensively studied the impacts of solitary confinement on human prisoners, recently observed, “Some of the most dramatic demonstrations of the harmful effects of social deprivation have been found in animal research, where researchers are able to employ more intrusive scientific procedures and controls than with humans.”Footnote 2 Indeed, Harry Harlow’s notoriously cruel experiments socially isolating baby monkeys – as he described it, “total maternal deprivation” compounded by “no opportunity to form affectional ties with their peers”Footnote 3 – both fueled the nascent animal rights movementFootnote 4 and bolstered opposition to solitary confinement of human prisoners.Footnote 5 Yet, even as both of these movements have gained traction, solitary confinement of humans and nonhuman animals alike has dramatically increased in the United States.
Karen M. Morin notes the “developmental similarities across the agricultural-industrial complex and prison-industrial complex,” both of which have rapidly expanded in recent decades.Footnote 6 As a result, tens of thousands of prisoners in the United States are in solitary confinement today (precise data is not available because, alarmingly, there is no federal mandate that this basic information be tracked or reported), while untold millions of animals are held alone in American laboratories, factory farms, roadside zoos, and other sites of exploitation, including tens of thousands of primates in laboratories.
Indeed, the United States holds the dubious distinction of being a world leader in solitary confinement of both human prisoners and nonhuman primates used for experiments. According to United Nations special rapporteur on torture, Juan E. Méndez, “the United States uses solitary confinement more extensively than any other country, for longer periods, and with fewer guarantees.”Footnote 7 And, even as the United States recently became the last industrialized nation in the world to end the use of chimpanzees in invasive experiments, “the number of monkeys used in U.S. biomedical research reached an all-time high” of 74,498Footnote 8 (with an additional 35,221 held by laboratories but not actively used for experiments).Footnote 9 The number of primates held for experimentation in other countries pales in comparison.Footnote 10
Despite these myriad linkages, there is a notable disconnect between efforts to end solitary confinement for humans and nonhumans. As Justin Marceau has detailed, incarcerating humans – which in the United States encompasses a high rate of solitary confinement – has become “a salient feature of efforts to protect non-humans.”Footnote 11 Meanwhile, those working to end solitary confinement of human prisoners appear to misunderstand deeply the reality of the situation for animals in the United States today. For example, Drs. James Gilligan and Brandy Lee’s influential Report to the New York City Board of Correction compared appalling conditions for human prisoners with those of animals in zoos, remarking that the former are kept “in physical environments in the likes of which no zoo director would be permitted to place wild animals.”Footnote 12 According to Gilligan and Lee, “we now allow animals to be kept only in ‘zoological parks’ designed to recreate the kinds of environments that they had evolved to survive in” and we “treat our jail and prison inmates worse than we treat animals.”Footnote 13 This is not only a fundamentally inaccurate description of what our laws require for nonhuman animals, as discussed below; it also gives rise to headlines like “Treating Humans Worse Than Animals: Prison System Voices Decry Solitary Confinement of Mentally Ill”Footnote 14 and “‘Animals Get Treated Better’: Life in Solitary Confinement”Footnote 15 that pit human and nonhuman interests against one another unnecessarily.
Others working to challenge solitary confinement for human prisoners have made similarly inaccurate statements about requirements for animals. For example, a report by the Scientist Action and Advocacy Network summarizing scientific evidence against solitary confinement for human prisoners asserts, “It is federally mandated that most animals be housed with other animals of the same species. Only in extenuating circumstances is an animal to be housed in isolation, and for as little time as possible.”Footnote 16 A Scientific American blog similarly proclaims that animals in laboratories “may only be housed alone in extenuating circumstances,” adding: “These guidelines are not just for show. There are multiple layers of oversight, to ensure labs treat animals in accordance with these standards.”Footnote 17 Still others have broadly asserted, “In many cases, there are more legal protections and oversights concerning the protection of captive wild animals and the care and handling of farm animals than there are for incarcerated pregnant people in the United States.”Footnote 18
Such proclamations are inaccurate at best, but more importantly, it is not a contest: depriving any social being, human or nonhuman, companionship is fundamentally cruel and torturous. Indeed, science has shown that “[s]ocial pain can elicit extreme distress, which may exceed that of physical pain.”Footnote 19 And, as Lisa Guenther underscores, “there is nothing exclusively human about the need for everyday intercorporeal experience”;
it is not primarily as human beings … that we are affected by solitary confinement … but as living beings … with corporeal relations to other embodied beings and to an open field of overlapping experience in a shared world. It is as animals that we are damaged or even destroyed by the supermax or SHU [Security Housing Unit – an extreme form of prison solitary confinement], just as our fellow animals are damaged or destroyed by confinement in cages at zoos, factory farms, and scientific laboratories.Footnote 20
Given the inherent cruelty in confining any social being alone, it is imperative to object to solitary confinement across the board, and work to effect legal and other changes to end the United States’ shamefully widespread use of this tortuous practice in both human and nonhuman contexts. Notably, although the scientific literature about the impacts of social deprivation on animals has been widely used by those opposing solitary confinement in human prisons, there is not significant discourse or collaboration among advocates urging attention to the social needs of captive humans, on the one hand, and captive animals, on the other. This is a missed opportunity. While a full discussion of the potential benefits of such discourse and collaboration are beyond the scope of this chapter, they include enhanced information sharing (including scientific information and policy analysis), greater legitimacy, and heightened effectiveness.
Before such coalition building can succeed, it is important to delineate the common ground and facilitate common understanding. As an initial step in that direction, this rest of this chapter aims to articulate the current state of the law regarding solitary confinement of animals in the United States, and to correct what appear to be widespread misimpressions about the legal protections afforded to animals. Because the federal Animal Welfare Act provides the primary explicit protections against solitary confinement, the chapter focuses on those provisions, followed by a discussion of emerging possibilities under broader protections afforded by the Endangered Species Act and state anticruelty laws.
10.2 Which Animals?
As a preliminary matter, it is important to consider how truly limited even de jure explicit protections against solitary confinement for nonhuman animals are. There are express federal mandates for any sort of social companionship for only three categories of animals: nonhuman primates, marine mammals, and, to a lesser extent, dogs. Thus, vast categories of animals known to be primarily social do not have express legal protection against solitary confinement. For example, every year more than 100 million “profoundly social” mice and rats are caged and subjected to invasive experiments in US laboratories,Footnote 21 without any protections whatsoever under the Animal Welfare Act (AWA) because they have been deemed not to be animals for the purposes of that statute.Footnote 22 Solitary confinement of these highly social animals has been shown to cause brain damage,Footnote 23 and yet they are so lacking in legal protections that not only is solitary confinement routine, but so too is the denial of basic pain relief.Footnote 24
Likewise, “pigs are highly social animals”Footnote 25 who suffer when deprived of companionship, yet they too have also been deemed not to be animals for the purposes of the AWA,Footnote 26 at least when used for food or fiber, and have no express legal protection against social deprivation. Consider farmer Bob Comis’s chilling description of pigs’ deep sociality:
Pigs live in groups not only because they find safety and comfort in numbers, but because they are intensely, and I believe quite consciously, gregarious … Their social bonds run deep…When those bonds are broken, a pig suffers a tremendous amount of psychological stress, most often expressed in repeated deep, long, doleful groans, and when the circumstances are right, pigs express that psychological suffering (stress is an inadequate term) of broken bonds by totally and completely flipping out. They run back and forth squealing. They run aimlessly, in circles, screaming. They will jump fences, or they will plow right through them. When confined in a tight space, they will smash themselves against walls and gates, repeatedly. They will spastically chew on metal bars. They will try to climb whatever can be climbed. They will jam their snouts under the bottom rung of a gate over and over again and strain and struggle to lift it off of its hinges. They will smash themselves against the walls and gates again, repeatedly.Footnote 27
Comis goes on to describe, in haunting detail, the consequences of this deep sociality for the “last pig” at the slaughterhouse:
One by one as the day at the slaughterhouse passes, pigs are pulled out of pens with groups of pigs in them, until there is one last pig left in the pen. Not always, but very, very often, that last pig loses it as described above. Regardless of whether the last pig completely loses it, it begins to suffer the moment it is alone. Sometimes, in their hysterical efforts to free themselves in order to find other pigs to be with – because that’s what it is all about – last pigs are so frantic and have become so mad under the strain of their psychological distress that they will hurt themselves.Footnote 28
Despite the highly social nature of pigs and of other farmed animals – and contrary to the assertion that “[i]n many cases, there are more legal protections and oversights concerning the… care and handling of farm animals then there are for incarcerated pregnant people in the United States”Footnote 29 – no federal law regulates the on-farm treatment of animals raised for food.Footnote 30 And state-level oversight of even basic physical conditions for farmed animals is virtually unheard of.Footnote 31
The only categories of animals with something even approximating an express federal legal entitlement to social companionship are nonhuman primates, marine mammals, and dogs. And in all three cases, these legal promises have proven largely illusory. What follows is a detailed description of how we have failed to protect even the most social nonhuman animals against solitary confinement under the AWA despite gestures purporting to do so.
10.3 Primates, Plans, and Privation
In 1985, following the damning exposure of a federally funded laboratory in Silver Springs, Maryland, that held monkeys alone in appalling conditions, Congress amended the Animal Welfare Act to require that the Secretary of Agriculture promulgate standards that include “minimum requirements” “for a physical environment adequate to promote the psychological well-being of primates.”Footnote 32 The author of this language, Senator John Melcher, a veterinarian from Montana, intended this language to ensure, inter alia, social companionship for primates.Footnote 33
To fulfill this mandate, the US Department of Agriculture (USDA) “engaged in extensive study of the environmental needs of nonhuman primates that must be met to promote their psychological well-being,” and convened a committee of experts “to study the psychological needs of nonhuman primates” and “to make specific recommendations.”Footnote 34 The “expert committee … recommended social grouping to promote the psychological well-being of nonhuman primates,” and the USDA accordingly proposed a requirement that:
Nonhuman primates must be housed in primary enclosures with compatible members of the same species or with compatible members of other nonhuman primate species, in pairs, family groups, or other compatible social groupings, unless the attending veterinarian determines that doing so would endanger the health, safety, and well-being of the nonhuman primates.Footnote 35
In making this proposal, the USDA underscored that “[s]ocial deprivation is regarded by the scientific community as psychologically debilitating to social animals.”Footnote 36
Following opposition from the animal experimentation industry, however, the USDA fundamentally altered its approach. Instead of a default prohibition on solitary confinement, in 1991, the agency instead finalized a rule requiring regulated entities to “develop, document, and follow an appropriate plan for environment enhancement adequate to promote the psychological well-being of nonhuman primates” that included “specific provisions to address the social needs of nonhuman primates of species known to exist in social groups in nature.”Footnote 37
Lest there were any doubt as to how fundamentally the final rule differed from what the agency had originally proposed, the USDA underscored: “The regulations … do not specifically call for group housing of nonhuman primates” – even as it recognized that “housing in groups promotes psychological well-being more assuredly than does individual housing” and that “individual housing has been demonstrated to give rise to significantly more stereotypical behavior than does group housing.”Footnote 38
Two years after the rule went into effect, the agency polled its inspectors and found that a third of them were unable to determine whether a regulated entity was complying with the rule – and thus unable to enforce it.Footnote 39 The survey further found that at least half of all research facilities were still generally holding primates in solitary confinement, and that nearly half of inspectors believed this was done out of “convenience” rather than for legitimate reasons.Footnote 40
Another survey of inspectors after the rule had been in effect for five years made similar findings, with “[a]lmost half” of inspectors believing “that the criteria in the regulations were not adequate for facilities to understand how to meet them and for inspectors to judge if a facility was in compliance.”Footnote 41 The USDA concluded that regulated entities did not understand how to develop a plan that would meet the rule’s requirements and were confused about how their compliance would be judged, and that inspectors were also in need of guidance “on how to judge whether someone was meeting the requirements.”Footnote 42
Interviews with inspectors the following year similarly documented concerns about a lack of “solid criteria on which an inspector can judge the content of the plan as ‘in compliance’ or ‘out of compliance,’” including, specifically, compliance with the social requirements.Footnote 43 “Some inspectors said they had the impression that the only legally necessary condition for compliance was the existence of the document itself, regardless of its contents.”Footnote 44 Indeed, one regulated entity reportedly told an inspector:
You know, with regard to this plan for the psychological well-being of primates, there’s nothing you can do to me because there’s nothing in those regulations that tell me what I have to do. So long as I have a plan, that’s all that counts, and you can’t take any other action against me.Footnote 45
Not surprisingly, inspectors continued to note a high rate of primates held in solitary confinement for convenience.Footnote 46
Underscoring that “[s]ocial interactions are considered to be one of the most important factors influencing the psychological well-being of most nonhuman primates” and that “[t]he remarkable sociality of the primate order in general is the most relevant characteristic for their humane housing,”Footnote 47 the USDA deemed further guidance “necessary.”Footnote 48
Accordingly, the agency proposed policy guidance based “on an extensive review of the available primate literature, professional journals, and reference guides,” as well as consultation with “veterinarians, primatologists,” and inspectors.Footnote 49 “The draft policy identifie[d] five general elements” deemed “critical to environments that adequately promote the psychological well-being of nonhuman primates,” with “social grouping” at the top of the list.Footnote 50 The USDA elaborated:
According to our research, primates are clearly social beings and social housing is the most appropriate way to promote normal social behavior and meet social needs. In order to address the social needs of nonhuman primates … the plan must provide for each primate of a species known to be social in nature to be housed with other primates whenever possible.Footnote 51
However, the USDA never finalized the guidance. Instead, in 2002, it announced its position that, contrary to all of the evidence it had gathered, the regulation was adequate on its own.Footnote 52
In the intervening years, evidence of how inadequate the regulation is has continued to mount. As scientists Jonathan Balcombe, Hope Ferdowsian, and Debra Durham observed in a 2011 peer-reviewed publication, “Perhaps the best-known contributor to psychological distress in primates in the laboratory is nonsocial housing; yet, available analyses suggest that little progress has been made in avoiding single-caging of these animals.”Footnote 53 They noted that a 2003 survey of “almost 36,000 macaques in 22 U.S. primate laboratories … found … that 54% of those animals (17,471) being used in research were singly caged.”Footnote 54 A separate 2003 study examined 362 rhesus monkeys held in solitary confinement at a single facility – and found that more than 80 percent of them engaged in at least one abnormal behavior.Footnote 55 “Between 2004 and 2006 at the National Primate Research Center in Seattle, Washington, 63% of monkeys (numbering between 709 and 884) were singly caged.”Footnote 56 A “separate analysis of detailed records … from three U.S. laboratories involving more than 200 macaques and baboons indicates that these animals spend, on average, more than 50% of their lives caged alone.”Footnote 57 And, according to a 2010 report, a survey of six research facilities holding more than 4,000 macaques found that 70 percent of the animals were held alone.Footnote 58 According to a 2015 analysis of publicly available enrichment plans from laboratories at state universities and laboratories receiving federal funding, single-housing rates remain very high, with multiple plans conceding that convenience is a common reason for such solitary confinement.Footnote 59
Though this chapter is focused on solitary confinement, it is worth underscoring that social housing alone is not a panacea for humans or nonhuman animals. Allowing – or forcing – incompatible animals to interact with no opportunity to retreat or escape can pose significant psychological and physical risks to primates and other animals. For example, an altercation between two chimpanzees at the Honolulu Zoo resulted in one of the animals losing half of his left middle finger,Footnote 60 while an altercation between chimpanzees through a metal mesh panel at a sanctuary resulted in a “large injury” to one of the animals.Footnote 61 Generally, however, social housing of primates has been found to be safe and to outweigh the risks, especially if done with attention to compatibility and risk mitigation.Footnote 62
Nevertheless, decades after Congress amended the AWA to “promote the psychological well-being of primates” and the USDA underscored that “[s]ocial interactions are … one of the most important factors influencing the psychological well-being of most nonhuman primates,” tens of thousands of nonhuman primates across the United States continue to languish in solitary confinement.
10.4 Deserted Marine Mammals
Congress has not specifically mandated standards to address the psychological well-being of marine mammals as it did for nonhuman primates. Nevertheless, pursuant to its general mandate to promulgate standards to ensure the humane care and treatment of animals under the AWA,Footnote 63 in 2001 the USDA promulgated a regulation providing:
Marine mammals, whenever known to be primarily social in the wild, must be housed in their primary enclosure with at least one compatible animal of the same or biologically related species, except when the attending veterinarian, in consultation with the husbandry/training staff, determines that such housing is not in the best interest of the marine mammal’s health or well-being. However, marine mammals that are not compatible must not be housed in the same enclosure. Marine mammals must not be housed near other animals that cause them unreasonable stress or discomfort or interfere with their good health. Animals housed separately must have a written plan, approved by the attending veterinarian, developed in consultation with the husbandry/training staff, that includes the justification for the length of time the animal will be kept separated or isolated, information on the type and frequency of enrichment and interaction, if appropriate, and provisions for periodic review of the plan by the attending veterinarian.Footnote 64
Although this mandate affords considerable discretion to the attending veterinarian – which raises delegation concerns given that this person is on the regulated entity’s payroll and the USDA problematically has a long-standing practice of blindly deferring to the decisions of attending veterinarians – the standard appears to be more enforceable than the primate regulation. Rather than merely requiring a vague plan, it creates a presumption that social marine mammals will not be deprived of social companionship (though notably it does not require that they be held with conspecificsFootnote 65).
However, a review of publicly available AWA inspection reports spanning more than five years reveals that the USDA has not once cited any of the many facilities that hold marine mammals for violating this standard.
This lack of citations must not be considered an indication that the standard is being met and that no marine mammals are being denied of social companionship. Consider the case of Lolita, an orca whom the Miami Seaquarium has confined for more than five decades. Orcas are famously social, remaining with their mothers for life, but Lolita has not seen another orca since 1980, when her tank mate, Hugo, died after ramming his head into the side of their tank.Footnote 66 Nevertheless, Lolita reportedly continues to use vocalizations that are known only to her pod, and seemed to recognize the calls of her pod when played a recording of them.Footnote 67 To add insult to injury, Lolita is confined with Pacific white-sided dolphins, with whom she would never interact in nature and who rake her skin with their teeth, wounding her.Footnote 68
Such conditions appear to blatantly defy the mandates that marine mammals who are primarily social in the wild be held with “at least one compatible animal of the same or biologically related species”; that “marine mammals that are not compatible must not be housed in the same enclosure”; and that “[m]arine mammals must not be housed near other animals that cause them unreasonable stress or discomfort or interfere with their good health.”Footnote 69
However, the USDA has steadfastly refused to cite the Seaquarium for Lolita’s social conditions; a recent assessment of Lolita and what the agency referred to as her “cetacean companions” concluded that the conditions are fully compliant with all AWA requirements.Footnote 70 Not long thereafter, the USDA renewed the Seaquarium’s license to exhibit Lolita. Although Lolita is the most well-known marine mammal who is denied the social companionship ostensibly guaranteed to her by law, she is hardly the only one.
The USDA’s utter failure to enforce its own standard for marine mammal social companionship highlights that although there is a dire need to render the requirements for primates’ social needs legible and enforceable, that alone is insufficient.
10.5 Doleful Dogs, Derelictions of Duty
At the same time that it amended the AWA to address the psychological needs of nonhuman primates, Congress also added a mandate that the USDA promulgate minimum standards “for exercise of dogs.”Footnote 71 This was a last-minute addition to the law by Senator Robert Dole, a response to the USDA’s long-standing insistence that such a requirement was unnecessary. At the time, solitary confinement of dogs in laboratories was standard.Footnote 72
To fulfill the statutory mandate, the USDA proposed a rule titled “Exercise and Socialization for Dogs” that would have required social grouping.Footnote 73 The agency reasoned:
The scientific evidence available to us now leads us to conclude that space alone is not the key to whether a dog is provided the opportunity for sufficient exercise … [I]t appears that additional space provided to certain dogs would be underutilized – i.e., even if released into a relatively large run, many dogs will find a corner and lie down. The evidence available to us indicates that certain dogs can receive sufficient exercise, even in cages of the minimum size mandated by the regulations, if they are given the opportunity to interact with other dogs or with humans.
Intimately connected with the issue of exercise for dogs is the issue of the animals’ socialization. The research data available, and in large measure simple observation, indicate that dogs given the opportunity to interact are more active than dogs housed individually. In short, social interaction among dogs is an effective means of promoting exercise.Footnote 74
Facing backlash, the USDA stepped back its proposal, removing references to “socialization” from the final rule. The agency explained:
we believe that socialization of dogs, including sensory contact, is the single most effective means of providing the opportunity for adequate exercise. Based on the evidence presented to us, however, we do not believe that it is essential for the health and well-being of dogs that they have sensory contact with other dogs, and do not believe that it is appropriate to include such a provision in the regulations as a required minimum standard.Footnote 75
Given that the deep sociality of dogs had already been documented for decades, the USDA’s suggestion that contact with other dogs was not essential for the basic well-being of the species – and thus not something it could require under the broad mandate to ensure the humane care and treatment of these animals – is remarkable.
But perhaps even more remarkable, given the agency’s history of failing to protect animals, was its simultaneous conclusion “that dogs housed singly … need regular interaction with humans,” and accompanying proposal that dogs held in solitary confinement “must receive positive physical contact with humans at least daily.”Footnote 76
Despite opposition, the USDA finalized this mandate – though it did so in the context of requirement of a “plan,” much like the plans required for primates discussed above. Thus, the USDA requires that regulated entities “develop, document, and follow an appropriate plan to provide dogs with the opportunity for exercise” and that “in developing their plan” they “should consider providing positive physical contact with humans that encourages exercise through play or other similar activities. If a dog is housed, held, or maintained at a facility without sensory contact with another dog, it must be provided with positive physical contact with humans at least daily.”Footnote 77 “Positive physical contact” is defined by regulation as “petting, stroking, or other touching, which is beneficial to the well-being of the animal.”Footnote 78
On first glance, this might appear to be tremendously progressive law. But it has been all but ignored. It is buried within a lengthy regulation focused on the requirement that regulated entities have a plan – a requirement that, unsurprisingly, poses similar challenges to the primate plans. Thus, the 1996 survey of AWA inspectors discussed above found that “25% felt the criteria for dog exercise plans did not make clear what facilities needed to do to be in compliance,” and approximately 40 percent felt that the criteria “were not adequate for enforcement purposes.”Footnote 79 An analysis of USDA citations involving this regulation over a four-year period by agency officials found that the “vast majority” were for total failure to develop, document, or follow an exercise plan – and that “[o]nly rarely was a facility cited for not providing an isolated dog with positive physical contact with humans.”Footnote 80 My analysis of more recent USDA citations, which span more than five years, reveals no citations for such violations, despite the fact that dogs are still routinely held in solitary confinement by laboratories and other regulated entities. Thus, while these animals theoretically have a legal right to “petting, stroking, or other touching” – a right that would understandably make anyone fighting to challenge solitary confinement of humans outraged – it has proven a wholly empty promise.
10.6. Beyond the AWA: Solitary Confinement under the Endangered Species Act and State Cruelty Laws
Although the AWA provisions discussed above provide the most explicit purported protections against solitary confinement for animals, emergent case law applying the Endangered Species Act’s (ESA) prohibition on taking protected animals has also assured such protections for other, albeit narrow, categories of animals. In addition, state-level cruelty-to-animals laws can also be interpreted to afford such protections.
10.6.1 Solitary Confinement and the ESA
The ESA, which applies to both captive and wild members of protected species,Footnote 81 includes a prohibition “taking” such animals, including “harming” or “harassing” them.Footnote 82 Harm is as “an act which actually kills or injures wildlife,” while harassment is “an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding or sheltering.”Footnote 83
Federal courts reviewing citizen suits challenging conditions of captive wildlife belonging to highly evolved species have begun to recognize that solitary confinement can amount to unlawful harm and/or harassment under the ESA.Footnote 84 For example, a federal district judge in Maryland held that “[f]orcing a lemur to live a solitary existence … visits permanent psychological and physical injury on a species born to engage in constant interaction with his kind” and thus violates the ESA.Footnote 85 The court further found that social interactions “are integral to the well-being of lions,” “[s]olitude is extremely stressful for lions and disrupts their natural social behaviors,” and “solitary confinement” of a lion “produce[d] a constant source of stress and negatively impact[ed] her physical and psychological health.”Footnote 86 In so holding, the court credited an expert’s testimony that “a lion forced to live in solitude with a single ball for company is tantamount to confining a human in a single room with a single book for years on end.”Footnote 87 Notably, the court also recognized the harms that can arise from confining naturally solitary animals together, noting that “[t]igers, in contrast to . . . lions, are generally solitary animals who should not be housed together,” and that “forced cohabitation ran contrary to their basic and natural instincts, which manifested in obvious signs of stress such as overt conflict and stereotypic pacing, as well as an imbalance in feeding.”Footnote 88
In addition, the United States recently filed an unprecedented civil ESA enforcement action alleging that removing ring-tailed lemurs from their social groups constitutes an unlawful take, explaining, “Removal of a ring-tailed lemur from its social group, even for a brief period of time, can cause a reshuffling of the social structure causing the briefly removed ring-tailed lemur to be ousted from or even attacked.”Footnote 89
Although these are promising developments, they mustn’t be overstated. Only a small fraction of animals belong to species that are protected under the ESA. In addition, enforcement of captive conditions like solitary confinement has been almost entirely relegated to private citizen suits, which are costly and face significant standing and other procedural hurdles.
10.6.2 Solitary Confinement and State Cruelty Laws
State animal cruelty laws may also offer at least some limited protection against solitary confinement of nonhuman animals. Through originally focused on the infliction of physical pain,Footnote 90 some state cruelty laws could be interpreted to reach the harms inflicted by solitary confinement.
According to a 2005 analysis of state cruelty laws, “none include language specifically acknowledging or addressing emotional neglect, abuse, or suffering in their definitions of cruelty. Furthermore, nine states specifically prohibit consideration of emotional suffering by specifying that any injury or suffering must be physical in nature.”Footnote 91
Between these two extremes, however, is a wealth of possible interpretation. Cruelty prohibitions are broad. Moreover, there is a growing body of “[e]vidence that emotional pain can be more distressing than physical pain.”Footnote 92 Indeed, “[c]urrent research leaves little room for doubt that experiences of emotional pain in general, and social pain in particular, can be associated with distress and suffering equal to experiences of physical pain.”Footnote 93 Thus, to the extent a cruelty law prohibits “pain” or “suffering,” it should not be assumed to be limited to physical harms.
Consider North Carolina’s prohibition of “every act, omission, or neglect whereby unjustifiable physical pain, suffering, or death is caused or permitted.”Footnote 94 A 2012 permanent injunction recognized that the conditions in which a bear was held violated this prohibition by causing the animal both “unjustifiable physical and psychological suffering and physical pain,” elaborating that “suffering” “encompasses physical, mental, and psychological suffering” and that “the unjustifiable suffering” inflicted on the bear “would be sufficient by itself to constitute unlawful cruelty.”Footnote 95
Similarly, a lawsuit currently pending in federal district court in Maryland alleges that solitary confinement of a capuchin monkey, llama, New Guinea singing dog, squirrel monkey, and wolf “inflict[s] unnecessary suffering or pain on an animal” in violation of the state’s cruelty law.Footnote 96
Here again, however, it is important not to overstate the significance of these developments. These are rare examples, and notably they arise in the context of civil suits. Typically, state cruelty laws are enforced criminally, “and in a criminal statute, an ambiguity should be resolved in favor of lenity.”Footnote 97 Thus, any ambiguity as to whether psychological harm from solitary confinement is prohibited would be interpreted in favor of the defendant and against a finding of liability.Footnote 98
While it might seem on first glance that our laws provide robust protections for social animals against solitary confinement, such protections are illusory. They apply only to a small category of animals. And even for those animals who are explicitly provided some federal legal protection against solitary confinement – nonhuman primates, marine mammals, and dogs – they are not enforced in any meaningful way. Thus, suggestions that federal law “mandate[s] that most animals be housed with other animals of the same species”Footnote 99 are grossly inaccurate.
Notably, however, the federal government has at least acknowledged the fundamental importance of social contact for these animals – which, alarmingly, may be more than can be said for human prisoners. These acknowledgments – and the ever-increasing body of scientific evidence about the dire impacts that solitary confinement has on all social beings, human and nonhuman – can provide a foundation for a legal structure that meaningfully protects against these harms. But we must first acknowledge that we aren’t “Treating Humans Worse Than Animals.” We are subjecting both to appalling and unacceptable deprivation – and should work together to redress that.
No one claims that prosecutions and longer sentences are the exclusive focus of animal law. For many animal advocates, criminal prosecution is not a central focus of their attention or work. Yet one would be remiss to ignore the salience of carceral strategies in animating the work, and in influencing the image of animal activists. Protecting animals, many believe, is gainfully pursued through a “war on animal cruelty” such that tough-on-crime politics has been a mainstay of modern animal advocacy.Footnote 1
In a very recent shift, however, certain pockets of the animal law movement have begun embracing what might be thought of as the logic of progressive prosecution. After years of public outreach and lobbying urging the view that incarceration is a pillar of animal protection, there is noticeable shift in recent years in the tone of the advocacy. Punishment is often now described as a necessary evil, and incarceration just one of the many responses that might be pursued against a person accused of harming animals. Indeed, many animal lawyers now oppose criminal registries, prosecuting juveniles as adults, and what might otherwise be called the most “grotesque flourishes” of carceral animal law.Footnote 2 To be sure, leading voices in animal law continue to insist that “incarceration has a valid place” in animal law, and to argue that diversions and treatment for felony charges of animal crimes generally are not tolerable.Footnote 3 But there seems to be a deliberate effort on the part of movement lawyers to distance themselves from retributivists (or even deterrence) rationales for punishment, and instead incarceration is championed as something like a last-resort when needed for incapacitation.Footnote 4 The appetite for incapacitation, however, is broader than it might seem, and underlies tough-on-crime enactments, including a recent increase in the statutory maximum sentence for animal cruelty crimes in Iowa, and a new federal felony cruelty law, the PACT Act.Footnote 5 For years animal lawyers have pursued “Bella’s Law” in New York as a legislative priority, because the law promises “stronger sentences for animal cruelty.” Punishment for animal abusers is still very much en vogue.
Nevertheless, there is an emerging trend among animal lawyers that downplays incarceration and appears willing to prioritize noncustodial responses to at least some cases of animal abuse and neglect. Incarceration is being billed as something like a last resort response to particularly hardened abusers. I applaud the willingness of animal lawyers to consider other-than-incarceration approaches to animal crimes. But I worry that the animal lawyers have come to believe that policing and prosecution that lead to outcomes other than incarceration are largely beyond critique. More specifically, I fear that the animal protection movement ignores the broader umbrella of carceral logics, including the literature observing that “incarceration as a logic and method of dominance is not reducible to the particular institutional form of jails, prisons, detention centers.”Footnote 6 There is a sense that carceral logics detached from a singular zeal for imprisonment are tantamount to a progressive approach to animal maltreatment, and one that is liberated from the baggage of racial disparity that infects the criminal system more generally. In reality, there is a long history of reformist discourse in other areas of the criminal system serving as a mechanism for justifying and entrenching the central features of what many regard as a fundamentally broken system, and one that does not have the best interests of animals in mind.
This chapter argues that animal law is still far too carceral in its rhetoric and approach to law reform, and the pivot toward fines, fees, and probation is not nearly as salutary as the animal protection lawyers imagine. Leaders in the animal protection world will likely regard this argument as quite radical – the idea that even nonincarceration criminal interventions might be treated as undesirably harsh. But for many who study the criminal system, it is far more radical to take on faith and intuition that animals are protected through carceral logics (or that they are harmed by critiquing carceral logics).Footnote 7 It is time to stop pretending that an uncritical acceptance of criminal responses to abuse and neglect help more than they hurt animals.
11.1 The Animal Protection Movement’s Shift on Carceral Logics Is More Style Than Substance
Many animal lawyers react to critiques of carceral animal law by contending that punishment is no longer a priority, and that there are only but a handful of anecdotes about overcharging.Footnote 8 My prior work has been criticized for emphasizing specific examples of racism within the criminal enforcement of animal law on the perverse theory that such data points are “not helpful for analyzing the current state of animal law,” and for focusing on discrete examples.Footnote 9 Modern animal law, one is assured, is distancing itself from its historically punitive origins.
But the death of carceral logics among animal lawyers has been greatly exaggerated. Despite the movement’s avowed distancing from carceral approaches, felonies are still the primary metric by which animal protection lawyers mechanically measure the importance of animals in the law, and law reform efforts in animal law continue to prioritize incarceration as a critical element in gauging whether the law is being meaningfully enforced. Scholars still seem to believe that the movement can incarcerate its way to animal rights. For example, a recent article urges harsher, more “proportionate” sentences as a vehicle for acknowledging the sentience of nonhuman animals.Footnote 10 This is consistent with the advocacy of animal protection groups that have long celebrated criminal prosecutions as first-steps in the march toward legal protections for sentient beings.
Similarly, when President Trump signed into law a federal animal cruelty statute in 2019, animal protection groups celebrated the accomplishment as long overdue and heralded it as one of the greatest legal victories in decades.Footnote 11 Likewise, Iowa amended its animal cruelty laws in 2020 so as to make criminal liability easier to prove, and the reforms were heralded by national groups as “upgrades” with lawyers for the movement taking credit for making the law as “impactful as possible.”Footnote 12 But many features of the celebrated Iowa law have the trappings of a traditional tough-on-crime approach. For example, the new statute reduces the required mental state for establishing criminal liability from “intentionally” to “recklessly,” which means that inadvertent abuse or neglect is now a crime in Iowa.Footnote 13 The statute also increased the penalties for animal abuse and neglect, and expanded the range of criminalized conduct.
Perhaps even more notable is the impetus behind many reforms that expand criminal penalties. The local organization urging the passage of the Iowa law explicitly claimed that the goal behind the more punitive legislation was to improve the state’s ranking on the “Animal Protection Laws State Rankings.”Footnote 14 As the Iowa sponsor of the legislation emphasized, “What we’re trying to solve here is Iowa being one of the lowest-ranked states in regards to animal abuse.”Footnote 15
There is an uncomfortable irony in seeing Iowa seek to improve its animal protection rankings by passing more punitive felony laws of this sort. The state with one of the highest concentrations of factory farms in the country seeks to improve its public standing with regard to animal issues, and it is able to use the animal protection movement’s own ranking system to facilitate this deception and distraction.Footnote 16
Industrial agriculture and its supporters are happy to celebrate the hierarchy of animal suffering codified through the animal law rankings. Animal advocates have explained that they “hope this [rankings] report encourages states, especially those at the lower end of the ranking, to refocus their attention”Footnote 17 to more carceral policies. Consider the movement’s own reporting on another state infamous for its factory farms, Kansas. Reporting on ranking-induced progress in Kansas, the Animal Legal Defense Fund explained,
When ALDF initially published the report, Kansas was ranked among the worst states because it did not have any statute that allowed for felony prosecution of animal abusers. In a happy update, after ALDF had been working with Kansas lawmakers for a year, a new law went into effect … that makes severe cruelty to animals a felony. The law, known as “Scruffy’s Law” after a terrier who was maliciously tortured in a gruesome 1997 killing, also includes mandatory minimum sentence.Footnote 18
In publicizing these rankings, the lawyers framed the question underlying the rankings as “Best States to Abuse an Animal?”Footnote 19
In this way, the rankings displace attention from systemic violence and keep the attention focused squarely on acts of individual abuse and neglect. The criteria used to rank states are one of the great symptoms of the persistence of carceral thinking within the animal protection movement. Ranking systems always present a risk of oversimplifying complicated matters. Can a list of a city’s top ten restaurants capture the nuance of a dining experience? Ranking state laws across multiple legal dimensions, moreover, is infinitely more subjective and fraught. Yet, at least in the case of animal law state rankings, the criteria for evaluation are transparent. These rankings categorically reward states that take more punitive measures. Looking at the publicly available grading criteria, one can quickly see that the current rankings system incentivizes legislation on topics including: (1) mandatory arrest provisions; (2) the availability of felony penalties; (3) a broader scope of criminal liability (to include neglect and bestiality); (4) increased penalties for repeat offenders; and (5) mandatory reporting of suspected abuse to law enforcement.Footnote 20 Moreover, the rankings additionally make specific suggestions to states for improvement, including adding a felony penalty for abandonment, increasing sentences, enacting a broader felony provision, and treating animal cruelty as a predicate offense to trigger the sweeping and much-critiqued web of criminal liability under RICO.Footnote 21 It would be an interesting experiment to run to see how a state would rank under the existing methodology if it had no felony laws relating to animal neglect or abuse, but prohibited all factory farming practices,Footnote 22 all fur production, and all cruel animal exhibitions, while also providing financial support to low-income persons with pets. If the state would rank very near the bottom of all states, despite providing the best quality of life for the largest number of animals, what does this tell us about legal advocacy around animals?
I would be remiss if I failed to emphasize that among many well-intentioned animal advocates, there is a pervasive fear that critiquing the criminal focus of animal law prioritizes human interests above animal interests. We are animal lawyers, not human rights lawyers, one can almost hear them yelling. But the reality is much more complicated, and much less of a zero-sum situation. There is no data to support the proposition that harsher animal cruelty laws are reducing crime. Indeed, the movement has never commissioned research about the rates of crime before they started the tough-on-crime model, much less compared it to crime rates for animal crimes in the modern era. We assume that the harsher laws are reducing animal crimes, but what if research shows an inverse relationship, which is not unheard of in criminology?Footnote 23
Yet, there is a sense among many thoughtful persons in the movement that these legislative reforms, along with the rankings that drive them (at least in part), should be understood as largely unrelated to incarceration. Broader felony laws, a wider net of RICO liability, and longer maximum sentences are not necessarily aimed at more incarceration on the ground, it is argued. Animal lawyers have explained that these reforms simply provide prosecutors with more options, allowing for greater discretion in individual cases. According to this logic, enacting felony offenses into law is simply “a way of acknowledging that animal abuse is a violent crime.”Footnote 24
Apart from being ahistorical, prioritizing felony laws while pretending that one does not expect them to be used (or used often)Footnote 25 is a strained form of logic: why prioritize laws without actually intending to see them enforced? Why spend money lobbying for higher maximum sentences, or incentivizing them through rankings, only to claim that you don’t actually anticipate more incarceration? The suggestions of nonuse or only expressive or symbolic value are almost insulting to the intelligence of persons familiar with the criminal system. Prosecutors and the animal lawyers who seek legislation adopting new charges and longer sentences are smart people who would not waste their time pursing the changes if the law reforms did not provide them tactical advantages. Put differently, pushing for increased penalties as a way of acknowledging the violence of harming animals, without expecting that the sentences will increase in actuality, is a form of deliberate ignorance. It is almost bizarre to suggest that the movement spend its limited resources seeking more felony laws and higher felony sentences (and penalize in rankings the absence of such felony provisions) without expecting any uptick in the number of felony charges or sentences. In 2021, a prominent animal lawyer made this point clear in an interview with the Toronto Star about an animal abuse case, “The law allows (a prison sentence of up to five years), so why not hand down the maximum?”
Consider the relatively recent enactment of Desmond’s Law in Connecticut. The law, which allows for victim advocates in animal cruelty cases, is now championed by its drafters as a reform that is not a “punitive approach.”Footnote 26 But the history of the law tells a different story. Desmond was a dog who was brutally abused, and the person who inflicted the injuries was not sentenced to incarceration. The sponsor of the bill, Representative Diana Urban, was understandably heartbroken over Desmond’s suffering, and was so outraged by the minimal sentence in Desmond’s case that she “immediately began her battle to write legislation that would make sure that this travesty of justice would never happen again.”Footnote 27 In other words, the law was always about incarceration. Lamenting the failure of the legal response to the Desmond case, Professor Jessica Rubin observes that the “owner was allowed to enroll in a diversionary program” called accelerated rehabilitation.Footnote 28 Even bracketing what it means for the animal protection movement to be openly opposed to a program called “accelerated rehabilitation,” it is striking that commentators now assert that the law has nothing to do with “trying to maximize incarceration.”Footnote 29
It cannot be doubted that the movement has pursued new felony laws and expanded sentencing regimes in recent years,Footnote 30 and the notion that one can pursue more felonies, longer sentencing provisions, advocate laws, and broader definitions of crimes without expecting longer sentences is both at war with the existing data from other fields and in tension with the movement’s own ongoing advocacy. Research has consistently shown what is common sense to most: when sentencing ranges are increased for a crime, the average length and frequency of incarceration will also increase.Footnote 31
Passing more and harsher criminal penalties can be expected to produce more incarceration. Moreover, as already noted, many of the animal protection lawyers who favor prosecution point to the importance of incapacitation. But if the goal is to create safer communities by incapacitating persons who harm animals, it would be odd to suggest that longer sentences are not an affirmatively good or necessary outcome based on that logic. If one believes in incapacitation, then five years of community safety should be better than one year, and much better than probation. And if one lobbies for a law based on the promise of “stronger sentences,” only to later claim that it is surprised by or uninterested in such sentences, the entire project begins to reek of duplicity.
Moreover, as a practical matter, if incarceration were not really the goal of punitive animal cruelty felony laws, then the movement would likely care very little about actual enforcement efforts on the ground after a symbolically significant law was passed. But it is simply not true that the movement passes new or expanded felony criminal laws and then turns a blind eye to their underenforcement. As one commentator recently summarized, “[t]he biggest problem with the effectiveness of animal abuse statutes involves their enforcement.”Footnote 32 Another law review article essentially parrots the logic of the movement: “The most significant issue in dealing with animal cruelty, animal abuse, and dogfighting cases is an overall lack of enforcement.”Footnote 33 There is an overriding sense among the academic commentary that, “[e]ven when the abusers do face trial, many offenders are given ‘slap-on-the-wrist’ punishments.”Footnote 34 For decades the movement has lamented what it calls the “enforcement gap,” or underenforcement of animal cruelty crimes,Footnote 35 and in recent years the movement has made it a priority to respond to the alleged underenforcement of animal cruelty statutes through creative legislation, including animal advocates in criminal cases involving animal abuse and neglect.Footnote 36
Consistent with this agenda, one of the most lauded and pursued types of animal protection legislation among local lobbyists and some national organizations is the animal-victim advocate laws mentioned above. “Desmond’s Law” and others like it provide animal victims a human advocate in addition to the prosecutor to speak about the impact of the crime. The express purpose for pursuing these laws is to address the so-called enforcement gap. As the Animal Legal Defense Fund explained in its testimony supporting the legislation, prosecutors “lack the resources to pursue cases involving animal victims to the fullest extent possible … [but Desmond’s Law] would help to fill that enforcement gap.”Footnote 37 An unused or underenforced felony law is seen as an affront to justice, and an expanding prosecutorial bureaucracy is necessary to ensure robust enforcement. That same logic is also obvious from the legislative moves pursued in the wake of the enactment of the federal PACT Act, which created felony level liability for certain animal cruelty crimes. Leaving no doubt that they wish the new felony law to be aggressively prosecuted, just months after enactment of the PACT Act, animal protection advocates proclaimed that the new law is “only effective if enforced,” and called for the creation of Animal Cruelty Prosecution Unit at the Department of Justice.Footnote 38 Federal legislation creating this new unit of prosecutors, dubbed the Animal Cruelty Enforcement Act, has already been introduced with bipartisan support, and with the promise that the law will help the nation “to step up federal action against perpetrators.”Footnote 39
The animal protection movement is anything but monolithic, but the idea that the movement as a whole has distanced itself from a strongly carceral posture is greatly exaggerated. Commentators and advocates continue to signal that the creation of new felony laws is an affirmatively positive development, and treat the underuse of such felony laws as creating a presumption of malfeasance, or representing a lack of acknowledgment that animal suffering should be taken seriously.
11.2 The Problem Is with Animal Policing, Not Just Incarceration
The explicit historical support for incarceration among leading scholars and advocates in animal protection is deserving of critique, as noted above. But a critique of incarceration alone would actually let the movement off too easy. As Dorothy Roberts and other scholars have recognized, a narrow focus on the problems associated with incarceration might imply that investments in more policingFootnote 40 and prosecutions that result in punishments other than incarceration are desirable alternatives.Footnote 41 In reality, however, incarceration is just the low-hanging fruit, not the root of the problem. The incarceration obsession that treats light sentences, proverbially referred to as slaps on the wrist, as immoral is a symptom of the belief that social and moral attitudes are appropriately shaped through criminal interventions. Prosecutions that do not result in sentences of imprisonment, under this logic, are examples of the merciful progression of animal law. In the remainder of this chapter, I focus attention on the other-than-incarceration efforts that might be incorrectly conflated with leniency and just outcomes by animal advocates.
11.2.1 General Considerations beyond Incarceration
The United States is the world leader in incarceration, and some animal rights activists are beginning to acknowledge the harms that might flow from contributing to this system. The animal movement, however, seems unaware that incarceration is far from the only example of American exceptionalism in criminal law. In his book The Process Is the Punishment, Malcolm Feeley argues that for many persons facing criminal charges, the worst thing about the criminal system is the likelihood of lost wages, lost employment, ruined relationships, commissions to bondsmen, and other fees and burdens that are commonplace even if charges are ultimately dismissed by the prosecution or by acquittal.Footnote 42 Being charged with a crime, or even just being targeted by police efforts to intervene and educate, can manifest as punishments for many persons, particularly persons in marginalized communities.
Even for those who are ultimately convicted of crimes, a large body of work has shown that the fact of a conviction can be worse than any short custodial detention. As Alexandra Natapoff has explained in her path-marking book, “one of the great myths of our criminal system is that minor arrests and convictions are not especially terrible for the people who experience them.”Footnote 43 As Natapoff shows, these myths obscure the reality that arrests, much less charges (even without any incarceration), destroy families and lives. Indeed, the US system of collateral consequences has created systemic barriers that often exclude persons convicted of crimes from fully reintegrating into society. For example, a felony conviction, even if it does not result in incarceration, will oftentimes trigger disenfranchisement, which as of 2016, resulted in more than 6 million Americans being ineligible to vote.Footnote 44 Collateral consequences can result in the loss of employment licensures, a loss of public housing, the loss of one’s right to serve on a jury, deportation, and many other harms that are determined at a state or local level, in addition to the often lawful, private discrimination by employers, landlords, universities, and others reviewing applications. Even noncriminal fines and fees, including fees or fines relating to animal offenses like tethering, could result in the loss of one’s driver’s license in many states.Footnote 45 There are as many as 11 million people who have a suspended driver’s license at any given moment in this country because of a fine or fee. As one commentator has observed, the “sheer number of collateral sanctions has become staggering, and it has been impossible to detail all the sanctions potentially befalling” any particular defendant.Footnote 46 Thus, the problem of carceral animal law defies any tidy calculations about the number of arrests or prosecutions for animal crimes.
I often hear animal lawyers remarking that probation is likely the most common punishment for animal crimes, and the assumption is that this places the carceral project beyond rebuke. But scholars outside of animal law have recognized that a myopic focus on incarceration as the sole marker of penal severity is at odds with the lived reality of supervision for the 4–5 million people on probation in the United States. In 2020, Human Rights Watch issued a report summarizing the ways that probation and parole are troubling symptoms of and contributors to the mass incarceration system in the United States.Footnote 47 The animal rights movement’s working assumption that probation is the soft-on-crime approach to crimes ignores the reality that nearly 50 percent of persons enter the state prison system because of a (often technical) probation or parole violation.Footnote 48 Probation cannot be easily and cleanly cordoned off from the mass incarceration system in the United States.
The animal movement does not exist apart from this background of severe collateral consequences resulting from other-than-incarceration criminal sanctions. When a movement focused on humanizing the suffering of animals cannot fathom the hardship imposed on marginalized communities flowing from increased policing and prosecution, it betrays a kind of naivete or, worse, arrogance. For the persons and their families caught up in the web of policing, probation, and fines, it is the height of privilege to suggest that these movement-inspired police interventions do not impose serious hardships. The lived reality of persons impacted by increased policing and prosecution, even when incarceration does not ensue, is very different from what the animal lawyers might imagine.
I recognize that for many persons invested in animal protection, it is difficult to appreciate how police-dominated interventions that are not focused on incarceration could oftentimes actually be bad for animals.Footnote 49 To many of our readers, it will sound ridiculous to suggest that police interventions that do not lead to incarceration can ever be an overreaction to animal crimes. That is why the remainder of this section comprises short vignettes that describe the role of police in animal protection efforts that do not involve incarceration. These stories are based on events spread across the country, spanning blue and red states, and they are not meant to be exhaustive; rather, they are merely illustrative examples of the systemic problems resulting from a harsh policing approach to animal crimes, even in the absence of criminal convictions. These examples provide a foundation for thinking about how policing and prosecution that does not result in incarceration or even a conviction can be affirmatively bad for animals.
11.2.2 When Poverty and Pets Can Mean Deportation: Texas
A number of assumptions undergird the carceral turn in animal protection efforts. The defining and most prominent assumption is that increased policing and criminal interventions will ultimately reduce animal suffering. Implicit in this assumption is the conclusion that marginalized communities will not cease reporting or underreport animal crimes out of a fear of immigration or criminal consequences. Another animal protection assumption, and one that has historically been disconnected from the carceral turn in animal law, is the overriding belief that animal shelters and animal service agencies exist to protect animals, and should be viewed as critical resources for communities. A recent case in Dallas reveals the tension between these assumptions.Footnote 50
In January 2020, Maria Flores brought her Maltese dog, Muffy, to a veterinarian to have a recent limp checked out. The veterinarian observed severe matting across the dog’s body, which was likely the source of the limp, and prescribed a treatment plan that included sedation, shaving, and antibiotics. Maria paid the fee for the vet visit. Unfortunately, however, Maria could not afford the proposed $1,500 treatment plan. After a few weeks of monitoring the dog and hoping she would get better, Maria realized that Muffy’s limp was getting worse. Maria made the difficult decision to surrender Muffy to Dallas Animal Services (DAS), so that the dog could receive treatment.
Like other animal service programs across the country, DAS promises an important service to community members; it agrees to accept “pet surrenders” from any person within the city limits.Footnote 51 Muffy was surrendered by her family because they could not afford the medical care she needed.
The veterinarian at DAS who examined Muffy discovered that the matted hair had caused a set of serious injuries, including muscle loss and the tearing of an Achilles tendon, and because of these injuries contacted the Dallas Police Department. In conjunction with the Texas Society for the Prevention of Cruelty to Animals, the Dallas Police arrested Maria in August 2020, and she was charged with felony animal cruelty, which carries a maximum of ten years in prison (based on “updates” to the law urged by animal groups). Maria was booked in the Dallas jail and remained there without bond, away from her husband and kids, until September, at which point she was taken into custody by Immigration and Customs Enforcement officers and moved to an immigration detention facility.
Maria, who is undocumented, faced years in prison and a felony record. She still faces likely deportation – all because she turned her dog over to the Dallas Animal Services after she could not afford a veterinarian’s suggested treatment plan. It is true that a grand jury subsequently refused to indict her on the criminal cruelty charges, and she was eventually released on bond from the immigration detention center. But irrevocable damage had already been done: Maria was detained for more than a month, and now faces a daunting challenge in immigration court to her ability to remain in the country.
There is a growing body of research documenting the fact that persons living in marginalized communities, particularly undocumented persons, are reticent to report crimes in their neighborhoods.Footnote 52 The reasons for such underreporting are varied, but an ACLU report makes clear that a fear of deportation is a leading reason that many immigrant communities might underreport crime.Footnote 53
The animal protection movement wrongly assumes that more aggressive policing and intervention will help animals, but research suggests that the carceral turn in animal law may actually deter persons from reporting abuse in their community, impeding efforts to intervene and help animals. Police officers have reported that crimes like sexual assault, human trafficking, and domestic violence are harder to investigate because immigrant communities are less likely to use local resources out of fear it will result in harm to their community. The notion that marginalized communities might fear animal protection groups and community shelters because of the carceral turn is illustrated perfectly by a close friend of Maria, who said of her case: “They’re committing many injustices and it’s unfortunate that where people go seek help, they’re attacked.”Footnote 54 And this is precisely the point.
The involvement of police and immigration officials has become routine for many groups concerned with animal protection, rather than focusing on processes that might help the injured animals. For example, many states have “mandatory reporting” laws that require veterinarians or other professionals who suspect animal crimes to report the matters to law enforcement. Indeed, the state rankings of animal protection laws value such measures, which appear innocuous, even obvious. But this is all part of a logic that treats police intervention as an affirmatively good and necessary part of a commitment to animal protection. Stories like Maria’s problematize this narrative by showing that increased policing, even in the absence of a conviction, can produce negative impacts for individuals, communities, and the animals themselves.
For many in the animal protection movement, Maria’s story will be uncomfortable, and rightfully so, but there is no reason to believe it is unusual. In fact, many in the animal protection movement might react to Maria’s story by lamenting that she came to the shelter too late, when the dog’s condition had deteriorated badly enough to warrant police intervention. If only she had come sooner, they will say, all of these consequences could have been avoided. But for those living in marginalized communities, there is a sad futility in the suggestion that more frequent or earlier interactions with animal protection groups would ameliorate the problems resulting from circumstances such as this one. As Maria’s lawyer observed, the groups involved seem to prefer throwing her in jail instead of exploring alternatives in circumstances where a person may not be able to afford resources for their pet.Footnote 55
Equally important, Maria’s case will never end up in a database compiling the overuse or abuse of the criminal justice system in animal cases because her case was ultimately dismissed. In the eyes of many animal protection advocates who might want to track data about the system, this case will be invisible. It is a nonevent. Cases that do not result in a conviction, much less a sentence of incarceration are well beyond the universe of data that anyone is talking about when conversations about the utility of a carceral response to animal suffering are being undertaken. A suffering animal whose case brings a small punishment or no conviction is the very sort of slap on the wrist that seems to justify the need for more felonies and policing. But the reality, as Maria’s case illustrates, is considerably more complicated.
Many cases that never result in incarceration or a conviction (or as in Maria’s case a formal charge from, for example, a grand jury) still have devastating impacts on the accused’s life, as well as on the way that communities perceive animal protection efforts. Cases like Maria’s show that the harms of the propolicing agenda extend well beyond the easily counted cases and quantitative data that will emerge from FBI databases. The impacts on the safety of animals in a community from a carceral animal law posture is probably best understood by looking to qualitative accounts like those in Maria’s case. Would anyone really fault Maria if she fails to report to animal protection groups or authorities a dog she thinks is being neglected in her neighborhood after her experience? Maria may not even be in the country to report the abuse, since she still faces deportation because of the chain of events triggered by her efforts to obtain costly medical care for her dog. As a result of policing and fear of prosecution, more animals may actually suffer.
11.2.3 The Quintessential “Slap on the Wrist,” a Sentence of Home Arrest: Florida
The case of Tammy Brown from Florida is illustrative of the sort of prosecution effort that might be written off as de minimus by many in the animal movement because she was ultimately sentenced to house arrest and probation.Footnote 56 But the ultimate sentence only tells part of the story.
Tammy has a disability and lived on about $500 per month from social security, of which she spent about $300 on the mortgage and utilities for her mobile home, leaving her about $200 for food and all personal expenses.Footnote 57 In 2011, an animal control officer seized Tammy’s elderly dog, Harley, and Tammy was charged with animal abuse for failing to treat a variety of medical conditions that the dog was suffering from. Explaining the need for criminal charges, the local prosecutor conceded a lack of malice but noted that “[t]he problem is that she allowed things to get to a point where the dog suffered.” As a means of protecting the animals in our community, the dog was seized, and Tammy was tried and convicted of animal neglect. The dog was promptly euthanized.
No one disputed that the problem was really one occasioned by poverty, because Tammy simply could not afford to take the dog to a veterinarian. Nevertheless, Tammy became a victim of the animal policing system, and now she is also registered felon. Ultimately, she was sentenced to probation, house arrest, and a thousand dollars in fees, which on her income might take years to pay off. And based on general criminology statistics, one might surmise that Tammy will end up incarcerated because she may fall behind on her fine payments. But equally striking, because she could not afford bail, Tammy spent more than a month incarcerated before she was sentenced. A month of incarceration was far less than the one year of imprisonment sought by the prosecutor, but the combination of the loss of her dog, fees, and probationary terms that may well lead to future incarceration, and a felony record that will make future employment or housing opportunities even more limited for persons like Tammy, present challenges that are almost unimaginable to most of us who live comfortably.
The point is not to diminish the suffering of the dog, though it should be noted that it seems unlikely that this type of prosecution will meaningfully prevent persons living in poverty from perpetrating animal neglect in the future, whenever the cost of care goes beyond their financial means. Rather the point is to note that cases like this one pose a risk of increasing animal suffering across the country. What is a person living in poverty to do when she hears of cases like Tammy’s? A rugged neoliberal approach might suggest that future persons should seek out better employment or not have pets when they are poor. But the reality is that persons who learn about this case might be advised by peers to abandon their pets when they realize the prohibitive cost of medical care, lest they risk prosecution either after bringing the animal to the shelter (as in Maria’s case above) or a police seizure of the animal.
Maria, Tammy, and others similarly situated could not be blamed for feeling as though they were being targeted because they were poor. Indeed, incidents of conduct labeled as animal neglect and cruelty are often higher in communities suffering from poverty.Footnote 58 But relying on the punitive criminal justice system to address this kind of harm results in more harm for the humans involved, often further enmeshing already marginalized people in cycles of poverty, incarceration, and societal exclusion. Moreover, such prosecutions make persons involved in animal protection seem elitist by sending a message about the incompatibility of poverty and pet companionship. Animal lawyers have previously taken appeals in criminal cases urging courts to refuse a poverty-type defense to animal neglect.Footnote 59 As the sentencing judge told Tammy, to the delight of many animal advocates, in adding a condition to her sentence, “I don’t want you to own any animals. Not even a goldfish.” Harley was “rescued” from Tammy and treated to a prompt death, and now an impoverished woman whose only friend may have been that dog is a registered felon saddled with fines. And before we dismiss such cases as aberrational, it is necessary to reflect on the fact that most animal crime cases are for neglect rather than affirmative abuse.
11.2.4 Citations, Fines, and Fees, All across the United States
For many persons who support better protection for animals in the law, a police response to animal suffering is commonsense. The focus is on high-profile cases of horrific abuse, and these cases seem to necessitate a larger and more aggressive police force dedicated to animal protection. But as in other areas of law, the incidence of increased policing is felt most acutely in low-income neighborhoods and among marginalized communities.Footnote 60 Animal well-being is ultimately not well served by an aggressive system of policing with fines and fees, even when no criminal conviction is obtained.
Although based on good intentions, the push to police animal crimes more aggressively fosters what a Human Rights Watch report describes as a “devastating cycle of poverty and arrest.”Footnote 61 In some jurisdictions 40 percent or more of police arrests are based on warrants, a large percentage of which are issued based on an unpaid fine. Thus, the proverbial slap on the wrist – a fine or fee, perhaps for tethering one’s dog in violation of an ordinance – will often be a precursor to a warrant and arrest for a low-income family. Policing actions that result in fines for vaccine violations, tethering violations, or other animal welfare violations may seem so trivial to privileged animal lawyers as to not even register as carceral interventions.Footnote 62 And yet these fines can have life-altering impacts for the impacted family, including the animal. As the American Bar Association reported in 2019, it is not uncommon for the parents of dogs or children to be unable to purchase their release from jail, leaving the animal or the family to suffer; every day across the country people “cycle in and out of jail because they can’t afford to pay old fines as their debt grows from new ones.”Footnote 63 This often-unseen part of animal law is the reality caused by fines and fees relating to animal crimes.
There are countless stories exemplifying an approach to everyday animal policing that produces a lose-lose situation for the humans and the animals. As one investigation revealed, animal control officers across the country are aggressively enforcing animal offenses such as registration laws, anti-tethering laws, and vaccine laws against poor and marginalized communities.Footnote 64 The resulting fines and fees often mean that a family is separated from a companion animal, and sometimes the animal is killed. For example, in 2013, Gerilynn Afleje’s dog was impounded, and when Gerilynn could not come up with the money to pay the fees, her dog was euthanized.Footnote 65 A 2015 investigation of just fifteen cities and counties across the country revealed “thousands of outstanding arrest warrants for small pet-related offenses.”
For those familiar with the critiques of overpolicing, these findings should not be surprising. Criminal law has been criticized for its consistent disparate impacts on poor, disadvantaged, and marginalized communities. As the punishment bureaucracy is expanded and celebrated by the animal protection movement, it is inevitable that cases other than the high-profile examples of sadistic abuse will comprise the bulk of many animal enforcement officer efforts. Thus, even setting aside the question of whether a carceral response is the best course of action in cases of extreme violence to animal victims, framing animal police as central to animal protection efforts has resulted in an expanding enforcement system for animal offenses, and one that functions in ways that are similar to the traditional criminal system. When the policing bureaucracy is expanded, it should not be surprising that the outcomes impact certain communities more than others – in the view of leading scholars like Paul Butler, “the system is working the way it is supposed to.”Footnote 66 In some low-income neighborhoods, there are documented reports of animal police going door to door and providing citations for failing to sterilize, license, vaccinate, or untether an animal.Footnote 67 Fines and fees for misconduct associated with animals, including citations for tethering a dog or failing to vaccinate the animal, are part of the carceral animal law bureaucracy.
11.3 Concluding Thoughts about Animal Enforcement
The point of this chapter is not to suggest that animal suffering should be treated as an illegitimate or trivial concern. On the contrary, the lives of animals in this country are afforded too little value and protection in the law. Animals are deserving of legal protection, and I share the same ultimate goals as the activists pursuing criminal law reform in the name of animals. The only disagreement concerns whether increased policing and prosecution is a realistic vehicle for reducing the suffering of animals. As the discussion above makes clear, in many instances animal policing causes more harm than good. Even when the focus is on animal policing that does not result in convictions, or even incarceration, the outcomes for animals and humans are often more harmful rather than helpful. It cannot be assumed that policing of animal crimes in circumstances such as those described in this chapter is actually improving animal well-being.
In this chapter, I cannot offer anything approaching a blueprint for next steps, but I think the priority should be interventions targeting the protection of animals without an increase in policing, fines, or prosecution. Subsidies and direct services to animals, and perhaps programs aimed at something more like restorative justice for animals, promise to protect animals better than punitive and regressive systems of police intervention. Some private organizations, for example, the Pets for Life Program at the Humane Society of the United States, invest in veterinary care and subsidies for families with pets as opposed to defaulting to a punitive response, and they are already recognizing the benefits for communities and animals from this type of intervention.Footnote 68
Unlike the stories told above, there are countless examples emerging from the program with great outcomes. Dogs that might have been euthanized have been treated and returned to their homes. Persons who might have been incarcerated, or fined and separated from their animal, continue to enjoy the companionship of a beloved animal friend, free from collateral consequences of criminal charges. Cases that very likely would have led to felony charges have been handled as issues of poverty and met with resources, resulting in the animal and the family now living out their lives together happily.
There is no silver-bullet that will end animal suffering. But it is time to think seriously about diverting the resources devoted to policing and prosecution to programs aimed at building up communities and protecting animals. Protecting animals or reducing their suffering might be costly, but in truth so is the enforcement and policing bureaucracy that has developed in support of conventional approaches to combating cruelty and neglect. We should seek opportunities to redeploy resources away from policing, so as to avoid outcomes where a dog is taken from her home and either euthanized or rehomed.
For much of the animal protection movement’s history, there has been an implicit assumption that incarceration was a vehicle for vindicating the rights of animals. I reject the notion that society can ever punish or prosecute its way to animal rights. But in the interest of animal well-being and human well-being, I would go one step further.
That is to say, it is time for the movement to appreciate that increased policing and prosecution should not be celebrated as an unmitigated good simply because incarceration may not always (or even often) be obtained. Law-and-order approaches to social problems tend to ignore systemic abuse and may create more problems than they solve. We applaud those within the movement who are looking to deescalate the tough-on-crime rhetoric by seeking punishments less than incarceration, but we also caution against increased policing and enforcement even when the stated goal is not incarceration. These more subtle forms of carceral thinking warrant closer scrutiny.