250
PALLIATIVE ANIMAL LAW:
THE WAR ON ANIMAL CRUELTY
Justin Marceau
∗
n 2019 President Donald Trump signed into law the Preventing
Animal Cruelty and Torture (PACT) Act.
1
Although every state al-
ready permitted felony animal cruelty liability, animal lawyers hailed
the PACT Act as a “defining moment” for animal law because it allowed
acts of animal cruelty to be charged as federal felonies.
2
In the wake of
the enactment, one of the most influential animal protection organiza-
tions in the world revealed that it had been working to pass the legisla-
tion for decades,
3
and described the new felony law as one of the organ-
ization’s “highest priorities,”
4
and “one of the largest victories for
animals in a long time.”
5
During the signing statement, President Trump
was flanked by leaders of the animal protection movement, one of whom
proclaimed that with “one stroke of the pen, the President has done more
to protect animals and stop animal cruelty in America than anyone in
history.”
6
The President responded that this was “really a very nicely
put statement.”
7
The circumstances surrounding the PACT Act — the efforts to ob-
tain it, the celebration of it, and its effects — represent a microcosm of
animal-law efforts in the realm of carceral animal law more generally.
8
It is a high-profile palliative intervention that provides a sense of ac-
complishment without addressing any of the underlying causes of ani-
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
∗
Professor of Law at the Sturm College of Law, the Brooks Institute Faculty Research Scholar
of Animal Law and Policy, and an affiliated faculty member with the Institute for Human Animal
Connections at the Graduate School of Social Work.
1
Pub. L. No. 116–72, 133 Stat. 1151 (2019) (codified at 18 U.S.C. § 48).
2
Press Release, Humane Soc’y of the U.S., Extreme Animal Cruelty Can Now Be Prosecuted
as a Federal Crime (Nov. 25, 2019), https://www.humanesociety.org/news/extreme-animal-cruelty-
can-now-be-prosecuted-federal-crime [https://perma.cc/9ZP9-E5G3].
3
Id. (“For decades, a national anti-cruelty law was a dream for animal protectionists.”).
4
Kitty Block & Sara Amundson, HSLF and HSUS Deliver Big Wins for Animals in
2019
: Our
Banner Year in the Nation’s Capital, A
H
UMANE
W
ORLD
: K
ITTY
B
LOCK
’
S
B
LOG
(Dec. 13, 2019),
https://blog.humanesociety.org/2019/12/hslf-and-hsus-deliver-big-wins-for-animals-in-2019-our-
banner-year-in-the-nations-capital.html [https://perma.cc/L6N3-UA7Q].
5
Patrick Eckerd, Senate Unanimously Passes PACT Act Against Extreme Animal Cruelty,
J
URIST
(Nov. 7, 2019), https://www.jurist.org/news/2019/11/senate-unanimously-passes-pact-act-
against-extreme-animal-cruelty [https://perma.cc/7ALP-9CVX].
6
Remarks on Signing the Preventing Animal Cruelty and Torture Act, 2019 D
AILY
C
OMP
.
P
RES
. D
OC
. 2 (Nov. 25, 2019), https://www.govinfo.gov/content/pkg/DCPD-201900823/pdf/DCPD-
201900823.pdf [https://perma.cc/M9X3-Y65L].
7
Id.
8
See generally J
USTIN
M
ARCEAU
, B
EYOND
C
AGES
(2019).
I
2021] PALLIATIVE ANIMAL LAW 251
mal suffering. Politicians and advocates celebrate the efforts as land-
mark victories, but in fact, as this Essay argues, the efforts tend to do
more harm than good by reinforcing, and even exaggerating, the invisi-
bility of most animal suffering in law.
9
This Essay situates animal law’s exaltation of vigorous prosecutions
within the emerging body of academic scholarship examining so-called
“progressive carceralism.”
10
Scholars of progressive carceralism have
shown that criminal responses to social problems not only fail to achieve
radical change, but worse, they ultimately impede it. Aya Gruber, for
example, has methodically dismantled the pro-carceral narratives in the
realm of interpersonal violence, and shown that rather than facilitate
incremental social change, as is often assumed, these law reforms set
feminist goals back.
11
The PACT Act and other tough-on-crime measures are celebrated by
many animal lawyers because they provide symbolic proof of the in-
creasingly strong “public concern for animal welfare.”
12
Adopting the
mindset that social problems are solved through criminal law, animal
law commentators assume that the absence of a sufficiently punitive
response signals a lack of social standing for animals. Thus, as one
group celebrated, “PACT makes a statement about American values.”
13
Rather than catalyze change in American values, however, these
war-on-crime approaches create a distracting sideshow that diverts
public scrutiny away from matters of the most urgent concern. Carceral
animal law consumes resources and scarce public attention. It is not a
symbolic or incremental victory for animals — it is legal escapism. Put
differently, this is not a paper advocating that animal lawyers should
prioritize the rights and suffering of humans, as my critics will no doubt
allege. Rather, the point is that the prioritization of felony laws amounts
to a grand mirage. The promise of incremental progress in favor of
general animal protection is a false one, not because incrementalism can
never work, but because this is not an incremental gain for animals.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
9
Some commentators would argue that even a focus on systemic forms of animal oppression
ignores some of the greatest threats to species preservation. See generally Carter Dillard,
Fundamental Illegitimacy, W
ILLAMETTE
L. R
EV
. (forthcoming 2021) (on file with the Harvard
Law School Library) (arguing that patriarchy-driven population growth has caused, and will con-
tinue to fundamentally cause, the majority of human and nonhuman suffering).
10
See, e.g., Aya Gruber, Equal Protection Under the Carceral State, 112 N
W
. U. L. R
EV
. 1337,
1364–83 (2018); Benjamin Levin, Mens Rea Reform and Its Discontents, 109 J.
C
RIM
. L. &
C
RIMINOLOGY
491, 529 (2019).
11
Aya Gruber, The Feminist War on Crime, 92 I
OWA
L. R
EV
. 741, 801–20 (2007) (exploring
feminism’s reliance on carceral logic, specifically in the domestic violence context, and the patriar-
chal patterns such reliance reinforces); see generally A
YA
G
RUBER
, T
HE
F
EMINIST
W
AR
ON
C
RIME
(2020) [hereinafter G
RUBER
, T
HE
F
EMINIST
W
AR
ON
C
RIME
]
.
12
Courtney G. Lee, The PACT Act: A Step in the Right Direction on the Path to Animal Welfare,
J
URIST
(Dec. 1, 2019), https://www.jurist.org/commentary/2019/12/courtney-lee-pact-act
[https://perma.cc/EY8W-UKUC].
13
Press Release, supra note 2.
252 HARVARD LAW REVIEW [Vol. 134:250
Contrary to the conventional narrative, more prosecutions and longer
sentences are not paving a path to animal rights.
The carceral animal lawyers imagine themselves as realists, proceed-
ing incrementally on behalf of animals. This commentary challenges
that framing by shining a spotlight on the text of the PACT Act, and by
considering the on-the-ground work of lawyers and advocacy groups at
the intersection of animal law and criminal law. Specifically, I will use
two states, New York and Iowa, as case studies for showing how the
criminalization impulse does more to hinder than to advance animal
protection efforts in law. This Essay is not a blueprint for next steps,
but a deliberate call for a reallocation of resources away from the car-
ceral, and toward corporate or systemic accountability.
I.
T
HE
P
LAIN
L
ANGUAGE
OF
THE
PACT A
CT
As a quick primer on how criminal law connects with animal law, it
is worth examining the recently enacted and much-celebrated PACT
Act. The centerpiece of the statute is the criminalization of conduct in
which an animal is “purposely crushed, burned, drowned, suffocated,
impaled, or otherwise subjected to serious bodily injury.”
14
But the real
story is the range of conduct that is exempted from the law’s coverage,
and the efficiency with which the law reaffirms social hierarchies
through the use of criminal prosecutions.
15
Prioritizing the suffering of
very few animals, by excluding others, this law creates and strengthens
animal hierarchies; thus, the very reforms championed by animal law-
yers may reinforce the painful irony at the core of animal law — that is,
as a historical matter, the law of animals has been a vehicle for the pro-
tection of institutionalized animal abuse.
16
Rather than serving as a
gateway to greater protection for all species, legally entrenched hierar-
chies degrade the socio-legal status of animals as a group, and allow for
the infliction of horrific animal suffering under the “mantle of complying
with state and federal laws that purport to protect animals.”
17
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
14
Preventing Animal Cruelty and Torture Act, Pub. L. No. 116–72, 133 Stat. 1151, 1552 (2019).
15
See generally D
ONALD
B
LACK
, T
HE
B
EHAVIOR
OF
L
AW
(1976). “If the offense was com-
mitted against someone of sufficiently high status,” Professor Donald Black writes, a team of detec-
tives might “be directed to work around the clock until a suspect is found and charged with the
offense,” but if the victim is “low status,” the investigation will likely be minimal and soon aban-
doned. D
ONALD
B
LACK
, T
HE
M
ANNERS
AND
C
USTOMS
OF
THE
P
OLICE
14–16 (1980).
16
Piers Beirne, For a Nonspeciesist Criminology: Animal Abuse as an Object of Study, 37
C
RIMINOLOGY
117, 129 (1999) (identifying law as a “structural and historical mechanism [pro-
moting] the consolidation of institutionalized animal abuse”); see also Taimie L. Bryant, Denying
Animals Childhood and Its Implications for Animal-Protective Law Reform, 6 L.
C
ULTURE
&
H
U-
MANS
.
56, 62 (2010).
17
Bryant, supra note 16, at 62; see also Ani B. Satz, Animals as Vulnerable Subjects: Beyond
Interest-Convergence, Hierarchy, and Property, 16 A
NIMAL
L. 65, 79 (2009).
2021] PALLIATIVE ANIMAL LAW 253
Among animal lawyers and commentators, the need for harsher sen-
tences for animal cruelty is often justified in terms of an interest in pro-
portionality.
18
Because there is an interest in recognizing animal abuse
as serious, it is argued that the penalties should be proportionately se-
vere.
19
But this tidy mathematical notion of proportionality has always
been a criminal law myth. In the realm of human victims, there is a
large body of research documenting the fact that the most severe pun-
ishments are imposed on persons with low social status who harm a
high-status victim.
20
For example, Black men who are convicted of kill-
ing white victims are considerably more likely to be sentenced to death,
and to be executed.
21
These divergent results among human victims are
the result of human biases that are baked into the system rather than ex-
plicitly mandated by statute. Generally speaking, scholars have ap-
proached disparities in the treatment of human victims as one of the
indicia that the criminal justice system operates arbitrarily and unfairly.
Yet, when it comes to animal victims, the plain text of the PACT Act
mandates a hierarchy that all but guarantees inequitable treatment and
suffering among animals.
22
The law explicitly creates categories of ex-
emptions for animals whose victimhood is often invisible to the law and
therefore beyond criminal opprobrium. Consider the list of conduct that
is lawful even if it involves purposeful crushing, burning, drowning, suf-
focating, impaling, or otherwise subjecting an animal to serious bodily
injury:
(A) a customary and normal veterinary, agricultural husbandry, or other
animal management practice;
(B) the slaughter of animals for food;
(C) hunting, trapping, fishing, a sporting activity not otherwise prohibited
by Federal law, predator control, or pest control;
(D) medical or scientific research;
(E) necessary to protect the life or property of a person.
23
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
18
Mirko Bagaric et al., A Rational Approach to Sentencing Offenders for Animal Cruelty: A
Normative and Scientific Analysis Underpinning Proportionate Penalties for Animal Cruelty
Offenders, 71 S.C.
L. R
EV
. 385, 413–18 (2019).
19
A
NIMAL
L
EGAL
D
EF
. F
UND
, A
NIMAL
L
EGAL
D
EFENSE
F
UND
P
OSITION
S
TATEMENT
:
S
ENTENCING
FOR
A
NIMAL
C
RUELTY
C
RIMES
1–2, https://aldf.org/wp-content/
uploads/2019/09/Position-Statement_Sentencing-2019.pdf [https://perma.cc/HN7U-HQ7J] (con-
cluding that the criminal system “ranks crimes by their perceived severity, ascribing the harshest
sentences” to the most reprehensible crimes).
20
Joshua Kleinfeld, A Theory of Criminal Victimization, 65 S
TAN
. L. R
EV
. 1087, 1151–52 (2013).
21
See generally D
AVI D
C. B
ALDUS
ET
AL
., E
QUAL
J
USTICE
A
ND
T
HE
D
EATH
P
ENALTY
: A
L
EGAL
A
ND
E
MPIRICAL
A
NALYSIS
(1990); Scott Phillips & Justin Marceau, Whom the State Kills,
55 H
ARV
. C.R.-C.L. L. R
EV
. 1, 56–57 (2020).
22
See Preventing Animal Cruelty and Torture Act, Pub. L. No. 116–72, 133 Stat. 1151, 1552
(2019) (codified at 18 U.S.C. § 48(d)).
23
Id.
254 HARVARD LAW REVIEW [Vol. 134:250
The breadth of these exemptions in a law heralded as one of the most
important developments for animal law in decades is striking. Animals
raised for food make up well over 90% of the domestic animals in this
country, and yet the corporations operating slaughterhouses are argua-
bly inoculated from prosecution unless a prosecutor can show beyond a
reasonable doubt that the pain and suffering they might cause is not
“customary and normal.” Likewise, corporate dairies in the United
States that confine up to 36,000 animals per facility for constant cycles
of impregnation and milking are shielded from liability, as long as they
can attest that their animal management or husbandry practices are cus-
tomary among their competitors, and perhaps as long as they can find a
veterinarian that will endorse the practice.
24
Moreover, it is not a vio-
lation of the statute to beat or drown to death a raccoon that is deemed
a pest, or an opossum or stray cat that otherwise threatens one’s flower
garden.
In sum, when it comes to the much-heralded PACT Act, it is difficult
to imagine a clearer way of perpetuating the existing hierarchies among
animal victims. Suffering matters, and animal victimhood is recognized
up until the point when it would become morally or commercially rele-
vant to most Americans.
25
There is no evidence of a trickle-down theory
of animal rights, and the creation of victim hierarchies in other realms
has created lasting barriers to substantive progress.
26
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
24
The American Veterinary Medical Association approves, for example, the use of blunt force
trauma to euthanize an animal. A
M
. V
ETERINARY
M
ED
. A
SS
’
N
,
AV MA G
UIDELINES
FOR
THE
E
UTHANASIA
OF
A
NIMALS
: 2020 E
DITION
100 (2020), https://www.avma.org/sites/
default/files/2020-01/2020-Euthanasia-Final-1-17-20.pdf [https://perma.cc/8KCY-GXUY]. More-
over, drowning birds in foam is among the “preferred methods” for depopulating “confined poultry,”
and electrocution is a preferred method for depopulating pigs. A
M
. V
ETERINARY
M
ED
. A
SS
’
N
,
AV MA G
UIDELINES
FOR
THE
D
EPOPULATION
OF
A
NIMALS
: 2019 E
DITION
53 (2019),
https://www.avma.org/sites/default/files/resources/AVMA-Guidelines-for-the-Depopulation-of-
Animals.pdf [https://perma.cc/9DA8-S2UM] [hereinafter AVMA
G
UIDELINES
FOR
THE
D
EPOPULATION
OF
A
NIMALS
]
.
25
Other federal statutes are similarly tailored to a predominantly Eurocentric approach to pro-
tecting animal suffering. For example, while federal law permits whales, primates, and elephants
to be held in captivity and displayed for entertainment, the law criminalizes animal fighting, which
is often associated with nonwhite cultures. Similarly, while the PACT Act permits cruel treatment
and the killing of animals in the course of hunting or fishing, federal law prohibits the humane
slaughter of dogs and cats for consumption. Dog and Cat Meat Trade Prohibition Act of 2018, H.R.
6720, 115th Cong. (2018); see also M
ARCEAU
, supra note 8, at 175–76.
26
See G
RUBER
, T
HE
F
EMINIST
W
AR
ON
C
RIME
, supra note 11, at 96.
2021] PALLIATIVE ANIMAL LAW 255
II.
E
NFORCEMENT
P
RACTICES
IN
C
RIMINAL
A
NIMAL
L
AW
: A S
TORY
OF
T
WO
S
TATES
Some may read the description of the PACT Act above and wonder,
“Isn’t some animal protection better than no protection?” A dog and
cat felony must be better than no felony. This is the myth of incremen-
talism through criminal law, which turns not on empirical data, but ra-
ther on assumptions about social progress occurring one felony enact-
ment at a time. A focus on felonies and prosecutions is treated as
imperfect progress, but progress nonetheless.
To challenge this narrative as overly sanguine, if not willfully blind,
this section juxtaposes recent events in two different states. Lawyers
make a spectacle out of the few (individual abusers), and in the process
miss the forest (of systemic abuse) for a few rotten trees. Movement
lawyers and organizations often overstate the benefits to animals of a
war-on-crime approach, while simultaneously understating (or obfus-
cating) the role of grassroots activism and civil disobedience. The re-
fusal to acknowledge the law-reform potential in activism, and the dog-
matic faith in the power of felonry,
27
are two sides of the same carceral
coin.
A. New York: Focusing on Individuals as Bad Apples
Even relatively small acts of violence against animals by individuals
can become international media sensations, particularly if the accused
can be portrayed as a low-status offender because of poverty, race, or
prior criminal record. The animal protection movement has mastered
the art of fanning these flames of retribution, even when doing so also
stokes narratives about racialized justice and inequality.
28
Illustrative is the Andre Robinson case from New York.
29
Robinson
was a young Black man who in 2014 lured a stray cat and kicked it into
the air near the housing project where he lived in Brooklyn.
30
The cat
was not seriously injured; indeed, even before the cat was adopted out
to a caring home, lawyers argued over whether there was any proof of
injury at all. Moreover, no one seriously disputes that if Robinson had
kicked a person and caused similar injuries, or even a couple of people,
he probably would not have been charged with a crime.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
27
See generally Alice Ristroph, Farewell to the Felonry, 53 H
ARV
. C.R.-C.L. L. R
EV
. 563 (2018)
(arguing for the eradication of the category of “felon”).
28
Professor Gary Francione warns that the animal protection movement’s obsession with fa-
vorable press coverage puts it at risk of becoming superficial and inattentive to the interests of most
animals. See G
ARY
F
RANCIONE
, R
AIN
W
ITHOUT
T
HUNDER
72, 112 (1996).
29
Stephanie Clifford, He Kicked a Stray Cat, and Activists Growled, N.Y. T
IMES
(Sept. 29,
2014), https://www.nytimes.com/2014/09/30/nyregion/animal-abuse-gains-traction-as-a-serious-
crime-with-jail-more-often-the-result.html [https://perma.cc/T7WY-TF44].
30
Id.
256 HARVARD LAW REVIEW [Vol. 134:250
Because of the involvement of animal lawyers and advocates, how-
ever, the case became an international media sensation. Not only were
charges filed, but all parties agreed that the Robinson case was handled
differently by prosecutors because of the intense and sustained involve-
ment of animal protection groups and the pressure campaign they
mounted.
31
Animal lawyers celebrated the fact that a petition calling
for the maximum punishment gathered more than 60,000 signatures,
32
and the media attention focused on Robinson and the animal lawyers
seems to be exactly the goal. It is a high-profile, sensationalized case of
individualized violence against a beloved animal.
The Robinson case is not an anomaly. On their websites and in lec-
tures, animal lawyers describe prosecutorial pressure campaigns and
amicus briefs in support of longer sentences as ideal forms of grassroots
activism. Animal lawyers fetishize policing and prosecution as unmiti-
gated advancements.
33
But perhaps the most important detail about the
Robinson case is just how differently it was handled as compared to
cases of widespread animal violence. In stark contrast to the proactive
efforts to pursue prosecutions in Robinson-like cases, many of the move-
ment’s lawyers have been surprisingly quiet when it comes to pressing
for the prosecution of corporate animal abuse, even when the abuse
seems to meet the statutory definition of cruelty. When it is not a broken
window such as an attack on a single animal, but a broken system such
as factory farms filled with abuse, the public outreach and prosecutorial
pressure are considerably muted.
Consider, for example, that about one hundred miles north of the
Brooklyn courthouse where Andre Robinson was prosecuted is the
Hudson Valley Foie Gras facility, which unnaturally fattens the livers of
hundreds of thousands of animals per year using a production process
that experts across the world have avowed causes suffering.
34
Unlike
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
31
Id. The New York Times story detailing the case noted that interviews with lawyers revealed
a persistent trend favoring incarceration, and a number of successes in obtaining it. Id.
32
Animal Advocates, Punish Andre Robinson, Man Accused of Kicking Stray Cat in Brooklyn, NY
to Full Extent of the Law, C
ARE
2 P
ETITIONS
, https://www.thepetitionsite.com/554/529/298/punish-
andre-robinson-man-accused-of-kicking-stray-cat-in-brooklyn-ny-to-full-extent-of-the-law/
[https://perma.cc/86PV-92EW].
33
Policing continues to be celebrated even as research shows that companies generally viewed
as anathema to animal protection, like Chevron and Shell, are corporate sponsors and featured
“partner[s]” of local police departments across the country. Gin Armstrong & Derek Seidman, Fossil
Fuel Industry Pollutes Black & Brown Communities While Propping Up Racist Policing, E
YES
ON
THE
T
IES
(July 27, 2020), https://news.littlesis.org/2020/07/27/fossil-fuel-industry-pollutes-
black-brown-communities-while-propping-up-racist-policing/ [https://perma.cc/JKH9-2HKS].
34
See H
UMANE
S
OC
’
Y
OF
THE
U.S., A
N
HSUS R
EPORT
: T
HE
W
ELFARE
OF
A
NIMALS
IN
THE
F
OIE
G
RAS
I
NDUSTRY
1 (2012), http://www.humanesociety.org/assets/pdfs/farm/HSUS-
Report-on-Foie-Gras-Bird-Welfare.pdf [https://perma.cc/7Q8G-NLBD] (“[S]ubstantial scientific ev-
idence suggests that force-feeding . . . is detrimental to [the birds’] welfare.”); see also H
UMANE
S
OC
’
Y
OF
THE
U.S., S
CIENTISTS
AND
E
XPERTS
ON
F
ORCE
-F
EEDING
FOR
F
OIE
G
RAS
P
RODUCTION
AND
D
UCK
AND
G
OOSE
W
ELFARE
1, https://www.humanesociety.org/sites/
2021] PALLIATIVE ANIMAL LAW 257
the Robinson case, which involved an animal victim with high social
status and a human perpetrator who was perceived as low status,
Hudson Valley Foie Gras is a well-established corporation making high-
end food for the wealthy
, its avian victims are not nearly as beloved,
and yet there is no evidence that the movement has leveraged its cele-
brated relationships with prosecutors to force a corporate prosecution of
these factory-farming practices. To put a finer point on the issue, if
criminal prosecution is treated as valuable, and if animal lawyers can
argue that horses have a freestanding right to sue in court for restitu-
tion,
35
or that an Orca has a claim under the Thirteenth Amendment,
36
surely such creativity could identify a colorable argument that the pro-
duction of foie gras is a corporate crime.
37
Corporate prosecutions are vanishingly rare, and the focus of car-
ceral animal law has been on individual actors as opposed to systemic
accountability. One might worry that in the criminal realm, the amount
of focus and fury surrounding a case is inversely linked to the amount
of animal suffering that actually occurred.
B. Iowa: Disavow Civil Disobedience and
Celebrate Expanding Felony Liability
Recent events in Iowa provide a second case study in the way that
carceral animal law operates on the ground. The state of Iowa expanded
the definition of animal cruelty offenses and increased the maximum
penalty for the crime of animal cruelty, accomplishments that were cel-
ebrated by many in the movement as major advances for the status of
animals under Iowa law. Within weeks of these legislative changes,
Iowa also passed its third Ag-Gag law,
38
and it was the site of a ground-
breaking undercover investigation at a factory farm. Juxtaposing the
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
default/files/docs/hsus-expert-synopsis-force-feeding-duck-and-goose-welfare.pdf
[https://perma.cc/XQ6G-B3KH].
35
Karin Brulliard, Seeking Justice for Justice the Horse, W
ASH
.
P
OST
(Aug. 13, 2018),
https://www.washingtonpost.com/news/national/wp/2018/08/13/feature/a-horse-was-neglected-by-
its-owner-now-the-horse-is-suing/ [https://perma.cc/LUC9-G4YQ].
36
Tilikum, Katina, Corky, Kasatka, & Ulises, Five Orcas, ex rel. PETA v. SeaWorld Parks &
Ent., 842 F. Supp. 2d 1259 (S.D. Cal. 2012).
37
N.Y. A
GRIC
. & M
KTS
. L
AW
§ 353 (McKinney 2005) (making it a crime to “cruelly beat[] or
unjustifiably injure[], maim[], mutilate[], or kill[] any animal,” and refusing to provide an explicit
agricultural practices exemption); see People v. Voelker, 658 N.Y.S.2d 180, 183 (N.Y. Crim. Ct. 1997)
(“Whether or not the People can prove that defendant ‘unjustifiably’ committed these acts is a
matter best left to the trier of fact.”). It does not seem radically far-fetched to believe that a jury
might find that according to the “moral standards of the community,” id., the injuries caused by
force-feeding a bird with a funnel multiple times per day could constitute unjustified injuring,
maiming, mutilation, or torture.
38
Ag-Gag laws are “agriculture security legislation . . . that . . . restricts — or ‘gags’ — meth-
ods used to gather and disseminate information about the conditions” of animal agricultural pro-
duction. Shaakirrah R. Sanders, The Corporate Privacy Proxy, 105 C
ORNELL
L. R
EV
. 1171, 1172
258 HARVARD LAW REVIEW [Vol. 134:250
reaction of many animal lawyers to these contemporaneous events in the
same state provides an insight into the way that law-and-order thinking
is impacting efforts to advance animal status in law and policy.
Iowa has been home to some of the most strident efforts to sweep
systemic animal abuse under the rug. The state was among the first to
pass an Ag-Gag law criminalizing whistleblowing investigations in ag-
ricultural facilities, and following a federal injunction of the law, passed
a second such law, which was also enjoined.
39
In June of 2020, Iowa’s
governor signed into law a third attempt to provide unique protection
against investigations to agricultural facilities.
40
Around that time, ac-
tivists engaged in civil disobedience by trespassing and placing hidden
cameras in the largest pig farm in Iowa. The cameras captured footage
of a “ventilation shutdown” to kill all of the pigs. The factory farm’s
management had decided that because of the COVID-19 downturn in
pork sales, feeding their pigs was no longer profitable. To avoid further
lost profits, management decided to kill all of the pigs by, as summarized
by a Pulitzer Prize–winning journalist, “sealing off all airways to their
barns and inserting steam into them, intensifying the heat and humidity
inside and leaving them to die overnight.”
41
According to the American
Veterinary Medical Association Guidelines, which approve this method
of killing, “[i]n realistic terms, death may result from any combination
of excessive temperature, CO2, or toxic gases from slurry or manure
below the barn.”
42
In short, pigs were killed by the thousands in Iowa
by essentially cooking them to death.
Confronted with such abject and incontestable cruelty, the same
community of lawyers that urged charges against Andre Robinson, and
commented favorably to journalists for the New York Times on the case,
was, by comparison, quite restrained in their responses to these events
in Iowa. Unlike cases involving a single, high-status animal victim,
there has been no public statement demanding charges, no mailers urg-
ing constituents to reach out to their elected officials, and no grand-
standing about the injustice of no criminal charges in this case. A mailer
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
(2020) (documenting legislative history showing that the laws were a reaction to animal activists
“running out to a news outlet,” id. at 1175 (citation omitted)).
39
Animal Legal Def. Fund v. Reynolds, 353 F. Supp. 3d 812, 816–17, 827 (S.D. Iowa 2019).
40
S.F. 2413, 88th Gen. Assemb. (Iowa 2020). The newest Ag-Gag law is unquestionably less of
a direct affront to free speech rights insofar as it targets certain trespasses for higher penalties, as
opposed to criminalizing pure speech. But the legislative debate provides strong evidence that the
motive for the law was similar.
41
Glenn Greenwald, Hidden Video and Whistleblower Reveal Gruesome Mass-Extermination
Method for Iowa Pigs Amid Pandemic, I
NTERCEPT
(May 29, 2020, 12:08 PM), https://
theintercept.com/2020/05/29/pigs-factory-farms-ventilation-shutdown-coronavirus/
[https://perma.cc/9WFS-N7VU].
42
AV MA G
UIDELINES
FOR
THE
D
EPOPULATION
OF
A
NIMALS
,
supra note 24, at 45.
2021] PALLIATIVE ANIMAL LAW 259
sent out by one organization in 2019 reminded supporters that it is im-
portant to tell their elected officials that, when it comes to animal cru-
elty, “the punishment . . . [should] fit[] the crime.”
43
Cases like Andre
Robinson’s illustrate what the lawyers mean when they demand that
the punishment fit the crime, and the silence in the face of revelations
like those at the Iowa farm reveal the other side of the carceral animal
law coin.
44
The animal lawyers’ complete silence about the need for a criminal
response to the systemic animal abuse documented in the undercover
investigation in Iowa might justify generalizations about the impacts of
tough-on-crime thinking. One could extrapolate that the law-and-order
culture among animal lawyers has conditioned them to believe that, as
a policy matter, they should not pursue legal actions or public outreach
based on video evidence obtained through civil disobedience or illegal-
ity. The law-and-order lawyers of the movement, it appears, want to
create a clear demarcation between their work and that of activists on
the ground who will risk jail time to expose animal suffering on a mas-
sive scale. Indeed, the animal lawyers rarely even suggest that the crim-
inal defense of such activists, who are literally saving animal lives and
documenting abuse, has a home in the realm of animal law. Prosecu-
tions of individual abusers is treated as somehow directly serving the
interests of animals, but the defense of a person who is engaged in ac-
tivism that does in fact directly save animals is rejected. It is a policy
of disavowing the “radical flank,” and refusing to defend them or even
rely on their work product and video footage, much less celebrate them
as part of the law-reform effort.
45
Animal lawyers might respond that, while deplorable, the actions at
the Iowa pig farm are not deserving of intervention because the cruelty
exposed may not have been criminally prohibited. But even if the abuse
in Iowa did not fit the definition of corporate criminality, again, it is
telling that the movement did not leverage its connections or call upon
its members to demand law reforms that would hold the corporation
responsible for the abuse revealed in Iowa. A rigid belief in the need
for adherence to existing law may be limiting social change, and causing
movement lawyers to fail to imagine possibilities beyond the status quo.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
43
Petition from Animal Legal Def. Fund to Jared Polis, Governor of the State of Colorado
(Summer 2019) (on file with the Harvard Law School Library) (petitioning the governor to support
laws that “guarantee animal abusers are punished harshly”).
44
The willingness of animal lawyers to prioritize incarceration cannot be fairly disputed. As
one prominent group framed the agenda for years to come, “[our Criminal Justice P]rogram . . .
inspired our famous bumper sticker: ‘Abuse an Animal, Go to Jail!’ And we mean it.” Stephen
Wells, Letter from the Executive Director, T
HE
A
NIMALS
’ A
DVOC
., Summer 2006, at 1, 2.
45
See Douglas NeJaime, Constitutional Change, Courts, and Social Movements, 111 M
ICH
. L.
R
EV
. 877, 898 (2013) (book review) (noting that social movement research has shown that the “mod-
erate movement factions benefit from their radical counterparts”).
260 HARVARD LAW REVIEW [Vol. 134:250
When courts decide cases recognizing the sentience of animals as a jus-
tification for a harsher criminal justice response, commentators declare
that the practical value to the movement of such holdings “cannot be
overstated,”
46
and yet, when it comes to systemic suffering uncovered
by “outlaw” activists,
47
the response of many animal lawyers is silence.
The reason for this disconnect is the law-and-order orientation of the
animal protection movement.
Even more stunning than these failures, animal lawyers and advo-
cates were actually working with legislators in Iowa on amendments to
the Iowa cruelty code during this precise legislative session. During the
2020 legislative session, Iowa’s legislature amended its criminal code to
diminish the mens rea required for guilt, expand the scope of criminal
liability, and increase the maximum sentence for certain animal of-
fenses.
48
According to the sponsor of these amendments, the Iowa leg-
islature acted in response to national ranking systems generated by an-
imal lawyers that rank states based on their legal protections for
animals.
49
The sponsor explained that “[w]hat we’re trying to solve here
is Iowa being one of the lowest-ranked states in regards to animal
abuse.”
50
This is proof positive that lawmakers consider the move-
ment’s rankings and input. But it turns out that this only compounds
the problem.
The animal law ranking system rewards things like first-offense fel-
onies and higher sentences, but it does not penalize exemptions for cru-
elty to farm animals or the apparent absence of corporate liability for
video-captured abuse.
51
The ranking system allows a state like Iowa to
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
46
Lora Dunn & David B. Rosengard, Comment, A Dog Is Not a Stereo: The Role of Animal
Sentience in Determining the Scope of Owner Privacy Interests Under Oregon Law, 23 A
NIMAL
L.
451, 456 (2017).
47
See G. Alex Sinha, Virtuous Law-Breaking, W
ASH
. U. J
URIS
. R
EV
. (forthcoming) (manuscript
at 17–24) (on file with the Harvard Law School Library).
48
H.F. 737, 88th Gen. Assemb. (Iowa 2020).
49
E.g., A
NIMAL
L
EGAL
D
EF
. F
UND
, A
NIMAL
P
ROTECTION
: U.S. S
TATE
L
AWS
R
ANKINGS
R
EPORT
(2019), https://aldf.org/wp-content/uploads/2020/02/2019-Animal-Protection-US-State-
Laws-Rankings-Report.pdf [https://perma.cc/M4RC-XPAD] [hereinafter A
NIMAL
L
EGAL
D
EF
.
F
UND
,
R
ANKINGS
R
EPORT
]
.
50
Stephen Gruber-Miller, Iowa Senate Passes Bill Increasing Penalties for Animal Abuse, Ne-
glect, D
ES
M
OINES
R
EG
. (Mar. 4, 2020, 9:08 PM), https://www.desmoinesregister.com/
story/news/politics/2020/03/04/iowa-senate-passes-bill-strengthening-penalties-animal-abuse-ne-
glect-torture/4952238002 [https://perma.cc/9WA2-JWU8]; see also Gov. Reynolds Signs Bill to
Strengthen Iowa’s Animal Cruelty Laws, KCRG (June 30, 2020, 9:06 AM),
https://www.kcrg.com/2020/06/30/gov-reynolds-signs-bill-to-strengthen-iowas-animal-cruelty-laws
[https://perma.cc/8XDD-M24M].
51
A
NIMAL
L
EGAL
D
EF
. F
UND
,
R
ANKINGS
R
EPORT
, supra note 49, at 26, 33. The rankings
report provides only a cursory summary of its methodology, so it is not possible to replicate the
findings or assess how the categories of evaluation are weighted or compared. Notably, however,
none of the recommendations for improving rankings include, for example, abandoning standard
agricultural exemptions. By contrast, the list of suggested improvements suggests a common theme.
2021] PALLIATIVE ANIMAL LAW 261
be celebrated in 2020 as incrementally improving its protections for an-
imals, when in fact nothing could be further from reality. Notably,
within weeks of the investigation in Iowa revealing pigs being over-
heated to death by the thousands and the state enacting a new Ag-Gag
law, animal protection groups across the country took to the press to
applaud Iowa for its “necessary” upgrades to the cruelty code.
52
At the
very moment when the Iowa Select Farms abuse was making headlines,
instead of bemoaning the absence of corporate accountability in the
criminal law, the movement lawyers shifted the narrative to Iowa’s suc-
cesses by noting that their ranking system was relied on by the “legisla-
tive drafters, as well as advocates” in order to “ensure the bill addressed
the state’s biggest shortcomings” and was “as impactful as possible.”
53
The animal movement deploys its pro-carceral agenda in ways that af-
firmatively distract attention away from systemic abuse.
To celebrate Iowa’s animal protection efforts in the spring of 2020
was nothing short of public obfuscation. This was not a time of “im-
pactful” change for the animals in Iowa — it was a year of horrific pol-
icymaking and absenteeism when it came to corporate accountability.
Understanding how the lawyer-created rankings work, recognizing the
community’s triumphant celebration of the expanding criminal provi-
sions for individuals, and examining the nonresponse of some lawyers
to factory-farm abuse exposed by activists all underscore the extent to
which the carceral focus distracts from and undermines the interests of
animals. It is not a neutral or incrementally beneficial set of policy pref-
erences; it is affirmatively harmful.
* * *
A tough-on-crime logic operates across large segments of the animal
law world. Animal law commentators and practitioners overwhelm-
ingly embrace criminal law as a salient example of the rising tide of
animal law. The focus may be unduly limited now, they argue, but the
benefits of the criminal law’s narrow focus will trickle down and benefit
all animals over time. By this logic, an expanded criminal code or a
new mandatory minimum today is a foothold toward animal rights (per-
haps on factory farms) tomorrow. But the logic of increased attention
to crimes and penalties for individual animal abusers actually reinforces
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
The surest path to a higher ranking, as Iowa recognized, is more felonies and higher criminal
penalties.
52
Several animal law groups released statements celebrating the amendments to Iowa’s code,
and praising the increased penalty provisions. See, e.g., Updating Iowa’s Animal Protection Laws
(Iowa), A
NIMAL
L
EGAL
D
EF
. F
UND
, https://aldf.org/project/updating-iowas-animal-protection-
laws-iowa/ [https://perma.cc/5FVF-6DDY].
53
Id.
262 HARVARD LAW REVIEW [Vol. 134:250
hierarchies and perpetuates larger-scale animal abuse and exploitation
caused by corporations.
54
One need not focus on the damage to human
communities from increased policing and prosecution to realize that
criminal animal law is not a harmless sideshow.
More prosecution will never lead to greater animal rights. Longer
sentences have not incrementally advanced the standing of animals in
society. Like other palliative treatments, the carceral agenda provides
pain relief for the humans disturbed by animal violence, but it masks
rather than cures the structural violence involved in the ordinary com-
mercial exploitation of animals. As societal concern for animal protec-
tion increases,
55
one should expect that the public will be hungry for this
sort of palliative treatment; instead, I hope that animal lawyers will be
up to the task of providing interventions aimed at a cure.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
54
See Alec Karakatsanis, Why “Crime” Isn’t the Question and Police Aren’t the Answer,
C
URRENT
A
FFS
. (Aug. 10, 2020), https://www.currentaffairs.org/2020/08/why-crime-isnt-the-
question-and-police-arent-the-answer [https://perma.cc/L8XW-T228] (explaining how a focus on
individualized incidents of “crime” distracts from more systemic problems and reinforces social
power structures already in place); see also M
ARCEAU
, supra note 8, at 6 (“Cruelty prosecutions
allow for a collective transference or displacement of guilt from mainstream society onto the ‘other,’
the socially deviant animal abuser.”).
55
See Rebecca Riffkin, In U.S., More Say Animals Should Have Same Rights as People,
G
ALLUP
(May 18, 2015), https://news.gallup.com/poll/183275/say-animals-rights-people.aspx
[https://perma.cc/2STM-WGCP].
