1.1 Introduction

On my office wall hangs an American engraving of Saved! a British painting by Sir Edwin Landseer that was an especially favored and easily recognized educational tool among the first generation of animal anticruelty reformers in the United States. In this highly sentimental seaside rescue scene, the dark hair of a nearly drowned white girl spills out of her straw hat while her saturated dress pools over the outstretched paws of her rescuer, a Newfoundland dog, a breed renowned for legendary marine rescues. The averted, skyward gaze of the panting Newfoundland, portrayed by Landseer in the first exhausting moments ashore, appears to offer proof of his nobility to the heavens that lie beyond the seagulls who alone witness this supreme act of courage, countenance, and intelligence. Saved! is paradigmatic of the early iconography of the animal protection movement, as it affirms core humane themes: human indebtedness to the loyalty and service of nonhuman animals; the individuality and sentience of animal subjects; and the shared subjectivity, affective communication, and social attachments across the human-nonhuman binary.Footnote ¹ And yet, from my perspective as a historian, the print lays bare other insights. Read as a scene of imperiled white innocence, Saved! speaks to a broader cultural thread running throughout the early American animal protection movement: many strands of humane sentiment often produced racial knowledge, which in turn played a key role in mediating white sympathy for animal suffering and justifying carceral logics. White innocence undergirds the rescued child’s worthiness to be saved and the inherent value of her life. White subjectivity structures the viewer’s sympathetic identification with her canine lifesaver. In the nineteenth century, whiteness pervaded humane reasoning in ways that are rendered invisible in animal law (See Figure 1.1).

Figure 1.1 Samuel Cousins, print of Sir Edwin Landseer’s Saved! published by Henry Graves, 1859

© The Trustees of the British Museum. (permissions granted)

These sentimental and didactic strains of imperiled white innocence in Saved! were all the more potent in post–Civil War America, given the prevailing understandings and expectations of black criminality. Indeed, the pairing of white innocence with nonwhite criminality was mutually reinforcing. Bearing this in mind, the painting conveys not only a white child saved by animals, but also the idea that animals needed to be saved from criminalized communities of color. Such redemptive humane logics, as I will explore, undergirded carceral logics.

Animal studies scholars have amply demonstrated the extent to which race is forged in the crucible of ideas about animality and nature. In other words, race is a permanent part of the animal question. “Impassionate disputes over the animal practices of racialized others,” as political scientist Claire Jean Kim discusses, “open a window onto the synergistic workings of the taxonomies of race and species” – twinned logics that are historically conjoined and mutually constitutive.Footnote ² White reformers who established and retained control of the national leadership of animal anticruelty societies often engaged with cultural debates over the borders of humanity – the human/animal boundary as well as the humanity of nonwhite communities – in ways that ultimately shored up white male legal authority and sustained white supremacy.

As a window onto the historical roots of American humane sentiment, Saved! nevertheless exemplifies pervasive legal and cultural changes by the mid-nineteenth century that strengthened the association between both childhood and innocence and children and animals as emotional investments and worthy objects of protection based on their shared helplessness.Footnote ³ When early animal welfare reformers invited the public to take imaginative, cross-species leaps that could generate sympathetic identification with animal subjectivity, this imagery overwhelmingly showcased scenes of white humanity.Footnote ⁴ In the early visual culture of animal welfare, white innocence was commonly depicted in moments of peaceful repose in pastoral landscapes with nature’s animal ambassadors.Footnote ⁵ As historian Robin Berenstein explains, the sentimental white child in the nineteenth century operated “in a busy cultural system linking innocence to whiteness through the body of the child” against which understandings of racial difference were constructed.Footnote ⁶ Sentimentalism in historical context refers to the moral philosophy of a community that is united by a shared recognition of and sympathy with the humanity of others and sustained through social bonds of mutual obligation. As historian Susan Pearson explains, sentimentalism in the nineteenth-century United States was a conduit for channeling affect modeled on the child-centered family that reproduced “hierarchical, vertical relations of benevolence” and reinforced the difference as well as the dependence of the suffering. It was also “more than simply a predecessor or an alternative to legal, institutional, or coercive methods of creating social change.” Anticruelty reformers transformed not only sentimentalism but also the reach of the modern state by yoking the language of sympathy to state power.Footnote ⁷ Consequently, the carceral turn in animal law imbued moralistic judgments of individual behavior with racist and civilizing underpinnings that diverted scrutiny away from structural inequities such as those undergirding human poverty and the related use and treatment of animals, especially by nonwhite individuals.

Such recourse to the legal system to create a more peaceable, kinder society built upon existing frameworks and logics about the perceived rise in crime and newly criminalized human-animal relations after emancipation. In this chapter, I place scholarship on the ideological underpinnings of the animal anticruelty movement into conversation with histories of the construction of race in the United States. In doing so, I recontextualize how white reformers understood and defined the problem of animal cruelty and endeavored to solve it. I also suggest ways in which assumptions of white innocence lay at the core of carceral logics. I begin by charting a new origin story for humane sentiment in the United States rooted in proslavery as well as antislavery sentiment. Here, I provide an inclusive overview of the movement that situates the efforts of African American animal advocates at the turn of the twentieth century within broader debates in the white imagination over black humanity. I then explore how the rise of humane carceral logics, or the rationale that surveillance, policing, prosecution, and incarceration to protect animals through the legal system justified as well as pacified the means, ultimately produced coercive and discriminatory tools that naturalized white reformers’ scrutiny of communities of color.

1.2 The Proslavery and Antislavery Roots of Humane Sentiment

In 1924, Sydney Coleman, who had served on the executive committee of the New York–based American Society for the Prevention of Cruelty to Animals (ASPCA) and as managing editor of the Ohio-based American Humane Association’s (AHA) publication, The National Humane Review, penned one of the first histories of the animal protection movement. “It is more than a mere coincidence,” Coleman pronounced, “that the humane movement in England and America followed so closely upon the abolition of human slavery.” As a result of emancipation, he posited, “the rights of the defenseless were established. The conscience of a nation was stirred to its depths, and resulted in the development of an era of humanitarian progress heretofore unknown. …Ten years earlier such a movement could not have flourished.” Prior to the Civil War, he argued, it was “not difficult to understand the general disregard of animal rights, however, in view of the very general lack of sympathy for the unfortunate members of society.” Coleman’s overarching narrative placed humane ethics in lockstep with the march of American progress and described a nation irrevocably changed by four years of “fratricidal struggle.” Yet in collapsing nearly three-hundred years of slavery’s influence on the structure and development of American institutions and society and positioning the Civil War as the turning point of the movement, his origin story emphasizes instead white national unity through humanitarian sensibilities that stemmed from a collective awakening to “the spirit of mercy” and a recognition of the rights and humanity of the enslaved.Footnote ⁸ Coleman clearly presumes a white northern citizenry who successfully and relatively effortlessly challenged slavery and inequality by embracing abolitionist tenets.

This triumphalist, celebratory, northern- and abolitionist-centered narrative continues to hold sway in public consciousness and dominates scholarly attention given to the movement. Yet early animal advocacy was never a solidly northern and abolitionist movement. Between the 1880s and the 1910s, as the so-called New South systematically dismantled black suffrage and enforced the spatial segregation and violent social control that cemented white supremacy, another movement extended legal protections to the animals laboring in the region. In 1880, elite slaveholding families organized the first southern SPCA in Charleston, the cradle of the Confederacy. The Louisiana State SPCA in New Orleans successfully reorganized in 1885 after prior attempts to form a society in the midst of Reconstruction. By 1889, other states in the former Confederacy with SPCAs included Alabama, Arkansas, Georgia, Mississippi, Virginia, and Tennessee. By 1901, SPCAs expanded within these states, and new anticruelty societies were founded in Florida, North Carolina, and South Carolina.Footnote ⁹ By 1900, all forty-seven states had legislation that delineated and prohibited positive acts of cruelty to animals.Footnote ¹⁰ American animal advocacy was a cross-racial, cross-regional movement that continued sectional debates over the humaneness of slavery and the humanity of enslaved people. The liberal vision of rights embedded in abolitionist discourses of animal protection could not, and did not, unite all Americans in the cause of humanity.

The post–Civil War marriage between liberalism and sentimentalism nevertheless created essential intellectual common ground for the US movement. A newly forged ideology of sentimental liberalism reconciled dependence with rights and turned cruelty into a social problem to be solved in part by state power.Footnote ¹¹ White animal protectionists on both sides of the Mason-Dixon line were not united by broad commitments to racial justice. Instead, the emergent culture of animal protection among white animal anticruelty reformers – comprising Union and Confederate veterans and their families, radical and moderate Republicans and southern Democrats, former enslavers and enslaved people as well as former abolitionists – shared common ground in a paternalistic strain of rights that sought to protect as well as preserve animal and human dependencies. They also shared Christian theological views such as humanity’s duties toward our “fellow creatures,” biblical justifications for dominion that emphasized animals as a species of property and humanity’s obligation to serve as good animal stewards, and the belief that acts of animal kindness allowed devout reformers to emulate the supposed boundlessness of God’s mercy.Footnote ¹²

While sentimentalism, liberalism, paternalism, and Christian theology truly matter to the origin story of anticruelty sentiment, ignoring the relationship between white supremacy and the rise of the animal protection movement obscures white supremacy’s contributions to the formation of humane carceral logics. Coleman’s origin story not only distorts the geographical scope of the movement by profiling only institutions and reformers above the Mason-Dixon line but also contradicts historians’ consensus on white America’s gradual withdrawal from commitments to equality as the hopeful glow of Reconstruction waned.Footnote ¹³

The advent of institutionalized animal welfare can be understood as simply the latest in an ongoing sentimental project since the Age of Revolutions to strengthen the moral bonds necessary to sustain a fledgling, egalitarian democracy. Many believed that a commitment to a culture of sensibility, or human sensitivity of perception, especially responsiveness to the pain of others, would help maintain social cohesion and purify society through the encouragement of humanitarian feeling.Footnote ¹⁴ The Second Great Awakening, an era of Protestant revivalism during the early-nineteenth century, helped crystallize a proactive framework of Christian duty and human perfectibility based on kindness “toward the least among us.” It unleashed a surge of humanitarian reform, including abolitionism, child welfare, prison reform, women’s rights, temperance, and the fight to end domestic abuse, judicial torture, and corporal as well as capital punishment.Footnote ¹⁵ Awakening theologians, popular religious literature of the day, novelists, abolitionists, and temperance advocates incorporated themes of humanity’s moral duty of stewardship over “fellow creatures,” linking kindness to animals to their broader advocacy for self-control and denunciations of human impulsivity and proclivity to brutality. American animal advocates who were deeply influenced by antebellum reform movements worked to define a new “gospel of kindness,” which, as historian Janet Davis explains, could lay “the foundation of a humane new world rising from the ashes of the Civil War.” At once spiritual and secular, this “gospel” soon assumed the trappings of American exceptionalism and evolved into a benchmark for national belonging, assimilation, and readiness for citizenship.Footnote ¹⁶

The recent memory of slavery gave postbellum white Americans a cultural context for establishing sympathy with the animal world. The central outcomes of the Civil War – emancipation and Confederate defeat – carved new channels for white sympathetic identification with animals after the war, albeit in unexpected ways. The Second Great Awakening also spread southward and helped shape the ideology of slaveholding paternalism. As a cogent southern defense of slavery coalesced by the 1830s, paternalism drew upon an increasing focus on humanitarianism in sentimental culture in efforts to justify the moral righteousness of slaveholding. According to southern apologists for slavery, the mutual obligations inherent in chattel slavery ennobled both white enslavers and the enslaved people under their care.Footnote ¹⁷ Whereas northern animal protectionists imported the rhetoric and cultural symbols in abolitionist discourse into their work, as featured in the dominant metaphor of the suffering animal-as-slave, postbellum southern protectionists who engaged in the mythologizing of slavery as benign and benevolent centered humane literature on evidence of animals’ gratitude and loyalty and often showcased stories of animals on tranquil plantation landscapes and of humane Confederate leaders. After the war, the highly sentimentalized and nationally resonant Lost Cause mythology celebrating the faithful slave not only helped white southerners manage the devastation of sectional defeat but also left its mark in southern humane literature that gained popularity with white audiences across the nation.Footnote ¹⁸ In Tennessee, Caroline Meriwether Goodlett, the daughter of a Kentucky slaveowner and cofounder of the United Daughters of the Confederacy, the organization responsible for cementing the Lost Cause on the southern memorial landscape to vindicate the South and its heroes, was fervently remembered as a “most humane lady” in her role as vice-president of the Humane Society of Nashville.Footnote ¹⁹ As we will see, southern animal protectionists did not appear to be conflicted about embracing both humane sensibilities and white supremacy.

In addition to obscuring the proslavery as well as antislavery origins of American humane sentiment, the narrow history offered by Coleman also falls short of capturing the ways in which African American animal advocates after the Civil War, many of whom had been born into slavery, used the treatment of animals to extend their commitments to racial justice. The roots of humane sentiment in America rightly stretch back to the 1619 arrival of the first enslaved Africans in Point Comfort, Virginia. As historian Thomas Andrews convincingly argues, the roots of contemporary animal-rights philosophies originated not with white abolitionists but with their enslaved counterparts, whose testimonies in slave narratives provided evidence of the role of animalization in creating and maintaining the institution of slavery.Footnote ²⁰ Some enslaved individuals asserted their personhood in such narratives by staking their claims to humanity on the relationships they nurtured with animals.Footnote ²¹

African American community leaders who were also animal advocates framed blackness against racist constructions of black animality and critiqued white hypocrisy and apathy toward black suffering that resulted from white supremacist racial violence.Footnote ²² Such reformers retooled the discourse of humane sentiment in response to debates among northern white philanthropists and segregationists concerning Black readiness for freedom, progress, and full citizenship – debates encapsulated in the oft-invoked phrases “the Negro problem” and “the Negro question.”Footnote ²³ Coleman’s narrative, therefore, not only overstates white America’s commitments to liberalism but also invites further scrutiny of the limits of white humane sentiment.

The presence of respectability politics in late-nineteenth century animal welfare discourse suggests further how white humanity served as the benchmark against which black humanity was measured. The politics of respectability emerged as an identifiable strategy within African American communities for claiming rights and demonstrating black worthiness of respect and national belonging. Humane ethics offered yet another avenue to provide countervailing evidence that African Americans were moral, law-abiding, and self-controlled citizens. Respectability politics provided the tools with which to push back against a constant narrative of deficiency by advocating for the reform of individual attitudes and behavior – here, indifference to animal suffering.Footnote ²⁴ Black reformers such as Booker T. Washington who embraced animal welfare and established Bands of Mercy at the Hampton and Tuskegee Institutes saw kindness to animals as a part of larger social justice projects of self-help and self-improvement through racial uplift.Footnote ²⁵

Many elite white southern animal advocates in the Jim Crow South continued to defend slavery by emphasizing that chattel slavery, if paternalistic and hierarchical, was at least benevolent. Kindness to animals was, according to this logic, a natural and moral outgrowth of slaveholding culture. Black animal protectionists, however, fervently believed that the ethic of kindness was essentially antiracist and that animal advocacy and civil rights activism were inseparable. By contrast, many white reformers across the nation continued to view humane ethics and behaviors as a proving ground for individual and community morality and a litmus test for full belonging and inclusion in America.Footnote ²⁶

1.3 The Rise of Humane Carceral Logics

The potential of the animal cause to transcend sectionalist sentiments that precipitated the secession crisis energized at least some animal protectionists. Southern reformers in particular hoped their animal welfare organizing would provide countervailing evidence to pervasive northern criticism of a “backwards” and “benighted” region. They promoted southern reintegration by endeavoring to make humane ethics a recognizable signifier of American character.Footnote ²⁷ In terms of preventative approaches to the problem of animal cruelty, reformers fervently believed that humane education curricula that invited children to be kind to animals was the most efficacious path forward. As movement scholar Diane Beers notes, “the solution seemed deceptively simple and enticing: teach the children and the children would rise to heal the world.”Footnote ²⁸ Yet the legal concept of cruelty that defined the “problem” to be solved crystallized through legislation designed to end ongoing abuses perpetrated by allegedly hardened adults who reformers believed lacked the moral values that would ensure a lifelong embrace of humane ethics.

The pursuit of carceral solutions was made possible through new post–Civil War demands on the expanding scope and bureaucratical complexity of state power and local policing through the successful lobbying of private humane associations to pass protective legislation.Footnote ²⁹ Humane carceral logics hinged on an ascendant belief among white reformers that cruelty could only be stopped by united effort and the coercive force of the law to help ensure the advancement of public sentiment for the animal cause. Evidence of the pain and suffering of individual animals in the annual reports compiled by a Society’s “humane agents” – men, usually not trained police officers, who were privately employed, commonly donned policelike uniforms, and endowed with the power to respond to cruelty complaints, make arrests, confiscate weakened, emaciated, injured, or publicly beaten and abused animals, and patrol municipal thoroughfares for violations of anticruelty laws – provided potent legitimizing proof that aggressive measures were necessary to combat the prevalence of cruelty. When humane agents, often in consultation with veterinarians, determined that an animal was weakened or injured beyond the possibility of recovery, societies tallied and disseminated the numbers of animals “humanely destroyed” or euthanized by a humane agent (See Table 1.1). A humane discourse of policing ensued, in which evidence of animal suffering justified recourse to the law. Anticruelty societies conceived of police power as humane power. By affixing sympathy to the state and installing public powers to their private organizations, SPCAs and humane societies helped shape the landscape of nineteenth-century policing.Footnote ³⁰ In turning to the law to achieve social change and committing to a legal strategy to combat animal cruelty, animal protectionists contributed to broader shifts in the nature of citizenship and typified national reform strategies after the Civil War that wedded state and private power. A commonly articulated driving mission of humane organizations, here defined by the Connecticut Humane Society in 1895, for example, as “the suppression of cruelty in all its forms; the cultivation of kindness and fellow-feeling in a spirit of common brotherhood; a tender regard for the rights of all God’s creatures, human and otherwise,” ushered in religious and moral reasonings that justified surveillance, arrests, prosecutions, and fines.Footnote ³¹

Rationales for recourse to the law also had significant gendered components. White male reformers espoused a type of Christian manhood motivated by a sense of injustice rather than mere sentimental love for animals. These men stressed that they were balanced in their sensibilities by blending their commitments to moral suasion and direct relief with justice and action.Footnote ³² Animal protectionists shared the concerns of Progressive Era moral reformers who responded to a perception of declining standards of personal behavior and character. Such reformers linked the violence and neglect of animals to specific vices such as intemperance and greed that stemmed from an overarching lack of self-control which led to submission to desire, passionate overindulgence, the free reign of appetite, and human depravity.Footnote ³³ Within this chorus, animal protectionists stressed individual moral reform rather than systemic solutions to solve the problem of cruelty. Anticruelty advocates bore witness to major social relocations resulting from rapid immigration, migration, urbanization, and industrialization that produced a high-water mark of human dependency upon commodified animals, especially laboring horses and mules. The populations of these indispensable “living machines” urbanized more rapidly than people in the third quarter of the nineteenth century.Footnote ³⁴ By the late-nineteenth century, emancipation’s version of citizenship based on independent, freely contracting individuals remained idealized, even as this ideal no longer reflected the realities of an increasingly complex and interdependent multispecies society.Footnote ³⁵

The merging of sympathy with state power coincided with the dissemination of crime statistics that explained criminal behavior based on racial difference. As historian Khalil Muhammad has shown, a growing link between race and crime calcified following the 1890 census, which was the first to gather statistical data on African Americans born after emancipation. Leading white social scientists, social reformers, journalists, law enforcement officials, and politicians of the day used crime data that bore the marks of police bias and discrimination to conclude that Black citizens posed a particular threat to America. As Muhammad explains, “the collection and dissemination of racial crime data…simplified reality, justified racism, and redistributed political and economic power from black to white.”Footnote ³⁶ White animal protectionists across the country often elevated the ethical status of animals above that of communities of color by drawing on prevalent understandings of black criminality and scrutinizing immigrants and colonized peoples’ fitness for citizenship.

In the nation’s capital, the Washington Humane Society’s (WHS) uniformed humane agents patrolled city streets on horseback and bicycle alongside the District’s police force, confiscated whips, pipes, and other crudely constructed horse bits and clubs involved in “aggravated,” “unmerciful,” or “brutal” violence, and warned, threatened, and made arrests without warrant. They unharnessed and seized beasts of burden and compelled owners to pay for their temporary lodging, grain, hay, and veterinary attention while detained or ordered to rest. Between the high-water mark years of 1900 and 1917, anywhere from one to ten humane agents employed in a given year shot between 165 and 360 working animals a year, with a median of 230 animals.Footnote ³⁷ A recurring theme among US reformers, the Society often accused the city’s roughly 600 police officers of being uncooperative, indifferent to animal cruelty, and reluctant to enforce anticruelty statutes. In 1905, the WHS president, Virginia patent lawyer Chester Snow, personally prosecuted a case against policeman Amos A. Roper for “lashing his horse until blood flowed from its sides and stained the snow.”Footnote ³⁸ Available records on arrests for animal cruelty indeed reflect a disparity: In 1910, for example, there were 2,017 arrests by humane officers versus 274 (or 13 percent of total arrests) by the police, and in 1916 humane officer arrests outnumbered police arrests 655 to 73 (or 11 percent of total arrests).Footnote ³⁹ Over the years, humane agents were required to remain on duty until six-o’clock to look after drivers of teams returning from work at that hour.Footnote ⁴⁰ At the beginning of 1906, the Society divided some seventy square miles of District territory into eight divisions similar to police precincts and each agent was given a division that he was responsible for patrolling constantly. During that year, agents averaged 7 arrests each day for a total of almost 2,000 arrests, and approximately 1,800 complaints of cruelty came directly to the secretary. Agents were required to report in person at the office every morning and by phone at least four times during the day. “By this means,” the Society explained, “the Secretary knows approximately the whereabouts of the agents at all times, and can communicate with any agent within a short time.”Footnote ⁴¹ By 1907, each agent was also required to visit all parts of his assigned territory, including slaughterhouses, cattle pens, the markets and commission houses where live poultry and calves were handled, brickyards, sand yards, and construction sites, as well as their regular beat in each division.Footnote ⁴² By 1911, humane agents were on duty during all hours of daylight and oftentimes at night patrolling the entire territory of the District.Footnote ⁴³

In the process of forging new pathways for animal welfare by helping shape a sympathetic and responsive state, reformers’ efforts to reduce acts of individual violence were a part of larger conversations about how to solve the nation’s problems in the closing decades of the nineteenth century.Footnote ⁴⁴ At that time, most white Americans saw everyday inequalities as a manifestation of a natural social hierarchy among different groups of people in the community.Footnote ⁴⁵ Yet pervasive turn-of-the-century evolutionary theory that linked cruelty with savagery and barbarism and humane behavior to civilization stabilized reformers’ assumptions not only that pain and civilization were antithetical to each other but also that sympathy with animal suffering was a marker of racial difference.Footnote ⁴⁶ As scholar Michael Lundblad explains, “Humane reform actually became a new and flexible discourse for claiming superiority over various human ‘races,’ reinforcing the logic that only the more ‘civilized’ group had evolved enough to treat other groups ‘humanely.’” This discourse, he explains, was born “at the same moment that constructions of Black men were also shifting, and, more specifically, while an explosion of lynchings was being justified by the myth of the Back male rapist.”Footnote ⁴⁷

The WHS waned in its sympathy with the growing African American community in the District. In the process of transferring their paternalistic energies onto animals, anticruelty advocates grew increasingly intolerant of impoverished African American day laborers who depended upon animal muscle to achieve a modicum of economic independence. As historian Kate Masur explains, municipal officials in the District “saw freedpeople as an urban problem to be solved” and drew on “long-standing doubts about freedpeople’s moral and political capacities to justify racially discriminatory policies” while avoiding blatantly racist language.Footnote ⁴⁸ In the end, reformers chose not to define the problem of animal cruelty as symptomatic of the limited achievements of Reconstruction to help African Americans assume a similar economic standing to white people. Instead, the racialized politics of emancipation informed how reformers demarcated the boundaries of cruel treatment. When it came to prosecuting African Americans who were scraping by below the bottom rung of the economic ladder for violent crimes against equine “wageless workers,” the Society’s sympathies fell decidedly on the side of animals.

While there is no evidence that African Americans perpetrated the majority of violence against animals according to the aggregate statistical records kept by the Society, the annual reports increasingly highlighted violence by African American men. In 1900, the Society began to identify the race of offenders. Over time, the WHS discussed the crimes committed by Black men as a particular “problem,” believing that African Americans’ alleged proclivity to commit acts of violence made them prime suspects. Thus, urban animal anticruelty reformers participated in larger trends in the white condemnation of blackness through their evaluations of black inhumanity to animals and black failure to internalize kindness and self-control, which forged a link between race and crime. The abolitionist-centered rhetoric of the Society turned the master-slave relationship on its head, condemning freedmen and other African Americans as whip-wielding “slave drivers,” with unchecked power over the bodies of “enslaved” horses.Footnote ⁴⁹

During the height of American imperialist interventions, conversations about “the white man’s burden” hastened discussions among white northern reformers of the imperative to “awaken” Filipinos, Puerto Ricans, and Cubans to the cause of animal protection. This “burden” refers to a civilizing imperative tied to American exceptionalism based on the notion that it was the moral duty of white society to rehabilitate and reform “backward” colonial subjects. As moral empire builders, American-sponsored animal protectionists unilaterally banned blood sports such as cockfighting and bullfighting in US-occupied territories and enacted stiff penalties of up to $500 and a prison term of up to six months. As a form of “animal nationalism,” as Janet Davis argues, “supporters and opponents alike mapped gendered, raced, and classed ideologies of nation and sovereignty onto the bodies of fighting cocks to stake their divergent political and cultural claims about the rights and responsibilities of citizenship and national belonging.” While opponents in the colonies defended their right to preserve their cultural heritage and right to self-determination, white colonial officials who supported cultural assimilation through human-animal relationships “bolstered exceptionalist values of benevolent stewardship.”Footnote ⁵⁰ Similarly, in Maneesha Decka’s comparative study of animal anticruelty legislation in settler societies within the US and British empires, she finds that such laws reinforced “civilizing missions.” The civilizational rationales embedded in anticruelty statutes, Decka argues, contributed to the social construction of various forms of human difference according to attendant hierarchical logics of gender, race, religion, and class, which targeted minoritized practices as “cruel” and normalized colonial practices.Footnote ⁵¹ Building empires of kindness at home and abroad created new forms of racial knowledge that privileged masculine, white, Protestant, and middle-class perspectives, approaches, and practices. Rationales for instituting carceral animal law policies at home revealed similar race-making processes.

The unregulated sale of horses in American cities often recycled sickly and spavined specimens to an impoverished, underemployed working-class population comprising millions of formerly enslaved men and new immigrants from Southern and Eastern Europe, Mexico, and Asia, who were frequent targets of animal cruelty prosecution on both coasts. In Los Angeles and New York, as Davis explains, “reportage in animal cruelty cases had the power to transform a defendant, already marginalized on the basis of race, class, or immigrant status, into an unassimilable alien.” “Newspapers routinely described the accused in racial, ethnic, classed, and gendered language,” Davis finds, and “laboring conditions further marginalized people who were dependent on animal muscle.”Footnote ⁵² Despite the presence of genuine antiracist sentiment among a segment of the humane movement’s executive leadership, day-to-day policing often reinforced existing forms of racial, ethnic, and economic inequality.Footnote ⁵³

American reformers who defined cruelty as an aggressive social problem participated in broader conversations about a perceived uptick in crime after emancipation. In 1870, Our Dumb Animals, the monthly organ of the Massachusetts SPCA, one of the most dynamic and influential leading animal anticruelty organizations in the United States, declared that the demise of slavery ushered in an “age of humanity.” Editor George Angell, the MSPCA’s indefatigable founding president and lawyer, believed that the animal cause would attract “the noble-hearted, whole-souled men of the day…of whatever creed in religion, politics, or other agitated questions” who could “swear fealty to the cause of humanity.”³⁷ Speaking in 1876 before researchers and reformers at the annual meeting of the American Social Science Association, Angell affirmed that cruelty and criminal behavior were connected logically as well as empirically. Angell reported that out of 2,000 prisoners recently studied in the United States, only 12 had grown up with pets.Footnote ⁵⁴ Affective ties to animals, Angell suggested, transformed children into compassionate citizens. The criminal population, he implied, provided evidence of society’s need for the widespread dissemination of humane values that could combat crime rates. In 1889, more than a decade after the end of Reconstruction, Angell felt the waters rising: “There is going on in the United States a steady increase in the number of criminals much greater in proportion than the increase in population. There were 70,000 persons in prison for crime in 1880, and there will be more than 100,000 in prison for great and serious crimes in 1890.”Footnote ⁵⁵

In the South, humane education pioneer Mary Schaffter who edited the weekly humane column in the New Orleans Daily Picayune, “Nature’s Dumb Nobility,” shared Angell’s concern with crime prevention. When the Louisiana State SPCA was unable to afford employing a humane agent, she personally performed this work in the streets “rescuing cruelly-treated horses, and saving dogs from the abuses of thoughtless people.” In an 1890 speech before delegates to the annual meeting of the American Humane Association (AHA) in Nashville, Tennessee, also the first annual meeting of the AHA held below the Mason-Dixon line, she discussed how humane sentiment could help solve the nation’s crime epidemic. “Crime is on the increase,” she declared. “How to prevent crime and what to do with our criminals are among the vital questions of the day.” Schaffter expressed concern that in “an age of advancement and education,” “prison statistics show that by far the greatest number of criminals both read and write.” Prevention-focused humane education provided the best answer, she maintained, because “there must be something radically wrong, then, with the system of education that does not result in self-control.”Footnote ⁵⁶

As a means for constructing humanity through racial difference, southern discussions of cruelty were also a part of the hardening of racial boundaries and maintenance of white supremacy that racial violence served to accomplish.Footnote ⁵⁷ As a regional counterpart to the reforming ideology of sentimental liberalism, a southern logic of humane paternalism built upon proslavery ideology and justified the righteousness of transferring benevolent social obligations from loyal enslaved people onto loyal animals. Commitments to animal welfare ultimately helped white southern animal advocates justify white supremacy and affirm the benevolence of “the white man’s burden” in the New South.Footnote ⁵⁸ Southern humane discourse was inextricably linked to powerful conceptions of crime and violence in southern society. As the abolition of slavery fundamentally reordered the South’s control of black labor, new legal strategies for the purpose of labor control and racial subordination emerged in the form of labor bondage through contract and criminal justice reforms. White fear of black crime and the anger it generated among white people provided the basis for rebuilding white solidarity by reenslaving Black Americans through convict leasing and chain gangs.Footnote ⁵⁹ In response to criticism that convict labor was unmerciful, cruel, and inhuman, white officials legitimized the outdoor labor on state-controlled plantation-penitentiaries and chain gangs as humane, rehabilitative, and healthful alternatives to incarceration.Footnote ⁶⁰ At the same time, southern reformers steered the passage of animal anticruelty laws through state legislatures.Footnote ⁶¹ This suggests in part how the discourse of humane reform served as a framework for distinguishing between blackness and whiteness.Footnote ⁶²

Leading southern reformers professed that the problem of cruelty facing the South in the age of emancipation was essentially a race problem that could be solved through white paternalism and Jim Crow politics. One prominent southern voice in the chorus was lawyer and Mississippi senator Richard Forman Reed, who was an active leader of the Mississippi Society for the Prevention of Cruelty to Animals and served in the executive committee of the American Humane Association. Reed was also the son of a former slaveholding family who had owned Lachnagan plantation near the river port city of Natchez, which was reportedly home to the greatest number of antebellum millionaires in the South. The Reed family was also related to the wife of Jefferson Davis through his maternal grandmother.Footnote ⁶³ Like Schaffter, Reed addressed his fellow delegates at the AHA in Nashville. In his remarks, he suggested that the problem of southern animal cruelty stemmed from white ingratitude toward the services of servants and slaves as well as from emancipation. “It is shocking to realize that in the nineteenth century people for the sake of a simple whim,” explained Reed, “should deliberately torment not only a harmless, living creature, but a servant.” Referring to the fashionable use of the check-rein, a type of rein that held horses’ heads unnaturally high, prevented horses’ neck muscles from sharing the burden of weight, and often caused serious injuries, Reed likened horses to slaves: “For appearances they torture their defenseless and obedient slaves – How cowardly! How wicked! Such people are without love, without gratitude, without refinement.”Footnote ⁶⁴ Here, Reed aligned himself with those in southern society whose experience with enslaved people allegedly taught them gratitude and a sense of moral duty to defend, protect, and cherish those under their immediate care. Given his views on race, he might have also implied that freedmen never had the opportunity or capacity to develop similar values, or perhaps that emancipated people seemed ungrateful for the ministrations of their white masters. Reed might have invoked the horse-as-slave metaphor because he was addressing an audience of primarily northern reformers, but he did so in a way that reflected well on the humaneness in southern culture in connection with the institution of slavery.

Reed discussed the importance of humane education outreach to Black communities for targeting “those who hate law and order” and carrying a “Solid South” for humane work. The late 1880s and early 1890s marked an upsurge in crime and homicide in the South, and many white observers like Reed believed that Black people committed most of the violence.Footnote ⁶⁵ White perceptions of black proclivity to crime and cruelty offered a psychologically compelling model for interpreting and shaping postwar race relations and anticruelty work.Footnote ⁶⁶ “The majority of the criminals in the Southern States, as it is well known, comes from the colored race,” he explained. “And there is no exception to this rule when we consider the violators of the laws for the prevention of cruelty. It seems very difficult to educate the negroes to be gentle and kind in their treatment of animals.” He enumerated on the causes:

He assured his audience that “there are many negroes who are merciful and kind,” believing that the majority of Black Americans acted from “uncontrolled passion or thoughtless neglect and seldom from deliberate intent.” Yet he maintained that by educating them to be merciful, humane sentiment could “protect both human beings and the lower animals.” The majority of southern Black people who lacked self-control, Reed believed, “have to be restrained by active enforcement of the law. They will be merciful because they fear the law; not from any moral motive or principle.” He concluded his address with an appeal to noblesse oblige: “We must do our duty toward him, and leave his final destiny to our Divine Father, who cares for even the humblest.”Footnote ⁶⁷ While paternalistic notions of “the white man’s burden” could be found in northern as well as southern humane sentiment, Reed and others linked freedmen’s apparent lack of self-control in human and animal relationships to prevalent understandings of black criminality.Footnote ⁶⁸

The postbellum civil theology of Redemption shows the extent to which violence became central to white Americans’ hopes and concerns about the nation. Many came to believe that black suffering was a “natural” condition of freedom; redemption from slavery required redemption through violence to strip Black bodies of dependency, criminality, and promiscuity.Footnote ⁶⁹ White communities tolerated and even celebrated violence that served to protect white supremacy in defiance of existing laws and procedures.Footnote ⁷⁰ If anything, the introduction of southern animal anticruelty laws from 1880 onward shows that animals enjoyed more legal protections in the South than the Black community in the midst of an epidemic of extralegal violence. While southern reformers remained silent on how they reconciled violence to animals with racial violence, animal advocacy appeared to offer humane insight on black humanity.

As late as 1924, the president of the Birmingham Humane Society defended her motives and integrity as a humane woman at a meeting of the Society “where women of the Ku-Klux were attempting to reinstate one of their members who had been discharged from the job as ‘Humane Officer.’”Footnote ⁷¹ While the president’s speech provided neither reference to nor explanation of the firing of the officer, the controversy provides a rare glimpse at a southern sensibility, however limited or isolated, that racial violence and the prevention of animal cruelty were not incompatible. In their uproar, the female members of the Ku Klux Klan seemed to share an apparent belief that the same hands that could commit acts of violence upon Black bodies could also block the commission of violence upon the bodies of animals. By day, this humane officer might well have kept Black men in check with the power of the law, but under the cover of night, he condoned or even participated in extralegal checks on Black people within the community, including torture and lynching.Footnote ⁷² While the president did not denounce the activities of the Klan, the controversy over the firing ultimately led to the replacement of the presumably local man with a northerner, a highly recommended Ohioan with fourteen years of experience as a humane officer with the Youngstown SPCA who arrived with letters of introduction certifying his integrity and “humane instinct.” This striking episode from the extant records of the Society suggests that humane discourse in the New South could be capacious enough to harbor a love of animals alongside racist attitudes toward the African American community. The liberal, abolitionist narrative of animal welfare is simply not sufficiently capacious or historically accurate to capture how white supremacy contributed to the formation of humane carceral logics and molded the conversations of anticruelty reformers across the nation.

1.4 Conclusions

As animal studies scholar and critical race theorist Aph Ko convincingly argues, white supremacy is “zoological in nature and relies upon notions of the human and the animal to maintain its power and order.” Racism, Ko explains, “is maintained by the human/animal boundary. Within this setup, white supremacy is both anti-black and anti-animal.”Footnote ⁷³ In an era before the advent of scientific work on animal cognition and behavior, white animal protectionists conceived of humane sentiment and interpreted animal subjectivity within a complex web of racial beliefs. The recent experience and memory of slavery was the main frame through which many postbellum Americans looked into the eyes of animals and saw reflected what they believed was right and wrong about the world in which they lived. The rhetoric of white southern reformers suggests that the animal welfare movement allowed some animal advocates to retool regional identity after the end of slavery and, at times, confirm their illiberal and antidemocratic racial attitudes toward African Americans. Many white animal advocates in the South argued about the extent to which Black people were equipped to embrace a life of freedom; they believed African Americans required white control and political domination, the heavy hand of the law – both in terms of extralegal or “rough” justice and legal prosecution – and, for the young who could still be saved, reeducation through lessons of mercy to curb violent instincts. While humane sentiment holds the potential to generate broad concern for multispecies injustice, even and especially today these connections often need to be made explicit to be recognized.

In the early movement, humane sentiment often produced racial knowledge that in turn reinforced carceral logics. As we have seen, the logic of saving animals from cruelty through the enforcement of anticruelty statues most often invited racialized scrutiny of nonwhite relationships with animals. Undoing carceral logics and carceral animal law policies necessitates a recognition of discriminatory cultural and legal inheritances from progressive nineteenth-century social reform campaigns led by white reformers.Footnote ⁷⁴ Even as animal anticruelty reformers worked toward systemic solutions through preventative humane education, humane optics centered on affirmations of the humanity of whiteness – both in terms of full social and political belonging and the inherent possession of humane ethics – against presumptive black inhumanity.

Efforts to improve the lives of animals through carceral policies drove inequitable and racist practices. Historical scrutiny of how humane carceral logics bear the racialized markings of American exceptionalism is necessary regardless of whether it leads to full divestment from carceral policies. Efforts to critically interrogate and undo carceral logics can greatly benefit from understanding how white perceptions of the causes of violence to animals forged insidious markers of belonging and exclusion. This history need not detract from the measurable successes of the animal protection movement in the post–Civil War era to lessen animal suffering; rather, it contributes to ongoing antiracist and decolonization projects by scrutinizing the extent to which humane sentiment and carceral logics in the United States developed according to a white supremacist frame.

2.1 Introduction

Arguing that all oppressions are related, and that to end oppression of humans we must also support ending oppression of animals, is in vogue among many who wish to abolish the property status of nonhuman animals.Footnote ¹ Professor Justin Marceau’s 2019 book, Beyond Cages, begins with a quote extolling this argument: “All movements seem to start out with a relatively narrow focus, which then widens in response to the recognition of the interconnectedness of oppression.”Footnote ²

Some animal rights activists employ the term “intersectionality” in relation to this argument. For example, while interviewing me in a discussion hosted by the Cambridge Centre for Animal Rights Law in 2020, Professor Raphael Fassel noted:

Marceau also refers to “the intersectionalist perspective on animal protection” in Beyond Cages.Footnote ⁴

The term “intersectionality” is often attributed to Professor Kimberle Crenshaw, who introduced it in highlighting the intersection of race and gender, noting that when one is concerned about the oppression of African Americans, Black women’s particular concerns are often overlooked. When one is concerned about the oppression of women, Black women’s particular concerns are also overlooked. Black women experience specific forms of oppression at the axis of race and gender, rather than experiencing racial oppression and gender oppression as completely separate and unrelated wrongs.Footnote ⁵

Appropriately or otherwise, the term has evolved in the usage of many beyond its original meaning. In 2019 a trio of scholars wrote of intersectionality that “[r]arely has one term been asked to do so much. It has been described as a lived experience, an aspiration, a strategy, a way to analyze inequality, and even a movement.”Footnote ⁶ Applying intersectionality to mistreatment of animals may represent one of the most ambitious evolutions away from the term’s original meaning related to civil rights. Using intersectionality language in relation to animals frequently seems intended to reference simply a broad interconnectedness between different manifestations of oppression, including mistreatment of animals. The original meaning of oppression intersectionality – oppression at the intersection of multiple bases of discrimination – seems inapplicable to many discussions about the mistreatment of nonhuman animals. Thus, to limit any contribution I might otherwise make to overextending intersectionality’s meaning, I will henceforth refer to “interconnectedness/intersectionality” regarding oppression and compassion as they relate to how treatment of humans influences treatment of animals, and visa-versa.

Observing that various oppressions are in some manner interconnected has some merit. However, this point is significantly overplayed by many seeking to stretch it into an argument for a “strong” animal rights paradigm, such as applying legal personhood to animals.Footnote ⁷ In this chapter, I will first focus on some of the agreements, and then disagreements, I have with arguments made by those, such as Justin Marceau, who are critical of pressing for increases in criminal prosecutions and sentencing of humans guilty of animal abuse or neglect. Next, I will address the manner in which attitudes toward humans’ moral distinctiveness or the absence of human moral distinctiveness may influence reactions to these sorts of anticarceral arguments. Finally, I will explore challenges for basing animal legal personhood arguments on intelligent animals’ cognitive capacities.

2.2 Seeking an Uneasy Middle Ground regarding Criminal Justice Reform Related to Animal Abusers

Although multiple scholars have criticized perceived overemphasis by the animal protection movement on criminal punishment to address animal abuse, I will pay special attention to Marceau’s groundbreaking Beyond Cages book as a recent and prominent illustration. I am intentionally emphasizing the “animal protection” movement as a broader description than the “animal rights” movement; the animal protection movement includes those who advocate for animals from a welfare/human responsibility perspective, rather than from a “strong” animal rights perspective. I advocate for increasing animal welfare protections, while rejecting animal legal personhood as an unjustified and harmful step too far.Footnote ⁸ Thus, I am an example of someone who supports the broader animal protection movement but not the “strong” animal rights movement.

As an animal welfare advocate, I have supported some aspects of enhanced criminalization of animal abusers – for example, I have applauded, and will continue to applaud, the rapid evolution among states to raise animal abuse to a felony-eligible crime in egregious circumstances. Marceau and other critics have not dissuaded me from my view of enhanced sentencing options as a positive development, but they have compelled me to be more thoughtful and concerned about aspects of our criminal justice system’s approach to animal abuse and neglect.

In other words, Beyond Cages lands some legitimate and heavy blows in its attack on the animal protection movement’s obsession with enhanced criminalization of animal abuse and neglect. For example, although it is no great revelation that racial injustice plagues our criminal justice system in general, Marceau convincingly argues that animal protection “is seen as a white thing,” and that racial justice is directly in play in our current approach to animal harm prosecutions.Footnote ⁹ I endorse Marceau’s condemnation of trying children, whose brains are not fully developed, as adults, either in animal abuse cases or in any other cases.Footnote ¹⁰ Further, the United States’ exceptionally high rate of imprisonment overall is deeply troubling.Footnote ¹¹

But Marceau is vague regarding some specifics, and, at least in tone, the breadth of his condemnation can be read as extreme. He acknowledges that his position is radical, and perhaps that is comforting, in that he may be seeking to jolt our awareness rather than jettison incarceration for animal abuse altogether. This may explain his assertion that incarceration is a form of oppression.Footnote ¹² Incarceration is doubtless a form of unjust oppression in some circumstances, but certainly in many circumstances it is appropriate rather than unjustly oppressive. Imagine, for example, a sadistic criminal with a long record of torturing animals. An argument that any incarceration of such a person constitutes unjust oppression would be difficult to stomach. Even Sweden, which is often looked to by progressives as a source of enlightened social policies, provides for prison sentences of up to two years for criminal animal abuse.Footnote ¹³

Similarly, eliminating all felonies for animal abuse, which would make even the most egregious cases of animal abuse misdemeanors, would be misguided. Beyond Cages references a “timely” proposal by a criminal law scholar to eliminate all felonies, and Marceau seems to consider the proposal favorably, at least with regard to animal abuse crimes.Footnote ¹⁴ As a scholarly work intended to raise provocative questions, Beyond Cages is effective. But literally moving “beyond cages” – disallowing any incarceration or felony possibilities for animal abusers, regardless of the egregiousness of the abuse – would be deeply problematic.

Focusing on human moral responsibility for mistreatment of animals does not mean we may be unconcerned about substantial flaws in our justice system. These are flaws that must be addressed, rather than necessarily constituting a refutation of any form of criminal justice that entails enhanced prosecution or punishment for certain crimes. Favoring criminal punishment for animal abuse – even favoring the trend toward increasing punishment for severe animal abuse, as I do – is not the same thing as saying throw the book at every criminal and give them the longest sentence possible.

There is no comfortable middle ground regarding our criminal system, only difficult decisions.Footnote ¹⁵ Ending all imprisonment and the possibility of felony status for animal abuse is a bad idea. Repeat offender sadistic animal torturers, for example, are amply deserving of felony convictions. But Marceau is persuasive in arguing that unmitigated enthusiasm for maximum prosecutions and punishment is also a bad idea.

2.3 How Attitudes regarding Humans’ Moral Distinctiveness or the Absence of Human Moral Distinctiveness May Influence Reactions to Anticarceral Animal Protection Efforts

An acquaintance who is an ardent animal rights supporter once shared with me that she feels much more compassion for animals than for humans, including human children. Her reasoning: most humans are evil, and all animals are morally innocent. Even if human children are morally innocent, they are likely to become evil as adults. This kind of thinking may not be exceptionally rare among people who are intensely focused on animal rights – I imagine that most readers know multiple people with similar perspectives. In 2020, a celebrity who had just broken up with her fiancé apparently sent a message by wearing a T-shirt bearing the words “Dogs over People.”Footnote ¹⁶ The celebrity may well have been employing hyperbole, but likely few people would fail to recognize the sentiment as something they have observed or experienced. Indeed, a Google search of “Dogs over People” reveals a plethora of shirts, coffee mugs, plaques, buttons, bumper stickers, baby clothes, wineglasses and other merchandise with variants of this animals-first message.Footnote ¹⁷

Further, much more extreme illustrations, not representative of typical animal rights activists, are also available to emphasize the point that compassion for animals does not necessarily coincide with fondness for humans. Professor Martha Nussbaum reminds us that “[t]he Nazis, we know, were great naturalists and animal lovers. What they appear to have lacked was a sense of the sanctity of human life.”Footnote ¹⁸

As a criminal justice scholar and an animal law scholar, Marceau is distinctively positioned to recognize the benefits of highlighting interconnectedness/intersectionality in seeking to expand both animal rights and human criminal law reform. However, he is also distinctively positioned to recognize challenges posed by the attitudes of many animal rights activists toward humans – at least toward human criminals who have abused or neglected animals – and perhaps toward other humans as well. Beyond Cages exposes and questions the failure of many animal rights activists to care much about lessening perceived oppression of criminals who cause harm to animals. Far from not having much active concern for compassionate treatment of humans who harm animals, many passionate about animal rights doubtless feel – understandably – searing hatred toward such humans. Marceau asserts that animal rights activists need to evolve beyond such hatred, complaining that “it is rather remarkable that a movement predicated on notions of empathy holds the prospect of caging humans in such high regard.”Footnote ¹⁹

Encouraging an embrace of interconnectedness/intersectionality as applied to animal protection may be viewed as having a “giving” aspect and a “receiving” aspect. The giving aspect is expanding the concern of animal activists such that they provide support for protecting the rights of oppressed humans. The receiving aspect is gaining support from activists who focus primarily on advocating for oppressed humans. In theory, embracing interconnectedness/intersectionality may enhance resources and energy in struggles against all forms of oppression by joining advocates for all oppressed groups together.

The fly in the ointment with this theory is that, as Marceau acknowledges, “[t]here is a stereotype of people concerned with protection of animals as misanthropes.”Footnote ²⁰ Marceau seems concerned that the movement’s general enthusiasm for harsh criminal punishment of humans who are often themselves oppressed encourages this stereotyping as misanthropic. If animal rights activists are perceived as not playing well with others, they are unlikely to generate enthusiastic responses to their pleas for support from other types of rights activists, such as activists pressing for criminal justice reform. Following Claire Jean Kim, Marceau insists that only “mutual avowal” can bring about change, “as opposed to subordination of humans in the service of animals.”Footnote ²¹

Particularly in the context of animal abuse, this is asking a lot of animal rights activists. Perhaps ironically, it seems likely that so many animal rights activists support “throwing the book” at humans who commit crimes harming animals precisely because the activists recognize that humans are dramatically different from other animals. When in 2012 an adult chimpanzee smashed the head of another chimpanzee’s baby at the Los Angeles Zoo, killing it, media reports about the incident of course did not include information about the “murderer” chimpanzee being charged with a crime.Footnote ²² Most activists would not lose their compassion for the well-being of the murderer chimpanzee, because they would appropriately view the chimpanzee as outside the realm of human moral judgments. Chimpanzees may have a degree of moral agency, but virtually no one would argue today that they have sufficient moral agency to be held justly accountable under our human legal system.

As many animal rights activists implicitly recognize, humans are unique. Our human criminal justice system assumes a norm among human adults and older minors of sufficient moral agency to be held justly accountable for crimes. When we are enraged at humans who abuse animals, we are affirming that they presumably possess sufficient moral accountability to merit our outrage.

The concept of free will – free will in the sense of one bearing ultimate personal moral accountability for an individual human’s actions – is important to this analysis.Footnote ²³ Specifically, the question of how committed we are (or are not) to humans generally possessing a strong degree of moral accountability may have a powerful impact on our views regarding criminal punishment of animal abusers.

Marceau implies a view that “free will” is at least nuanced by experiences and other factors.Footnote ²⁴ He complains that “[t]he movement balks . . . at the idea that animal abuse might be mitigated or treated as less than an act of utter free will, the defendant’s upbringing or culture or other mitigating factors that might militate in favor of a reduced sentence are treated as irrelevant.”Footnote ²⁵ He also complains that the animal rights movement would have sympathy for an abused dog who is conditioned to violence and who thus engages in violence, but many in the movement would not have empathy for a human conditioned to violence who abuses an animal.Footnote ²⁶

Scientists and philosophers have gone much further in challenging our traditional assumption that humans act with free will.Footnote ²⁷ Many neuroscientists are firm determinists who “express deep skepticism about free will.”Footnote ²⁸ For example, Professor Robert Sapolsky, a primatologist and neuroscientist at Stanford University, opined in 2004 that neuroscience should dramatically transform criminal law by discounting the notion that humans possess free will.Footnote ²⁹ He argued that the function of a human brain’s prefrontal cortex, which may be damaged or underdeveloped in the brains of many criminals, is a more likely explanation of much criminal behavior than the assumption that such criminals are capable of controlling their behavior.Footnote ³⁰ A criminal’s brain may be comparable to “a broken car.”Footnote ³¹

If human moral responsibility for criminal behavior is illusory or weak, such that what society has traditionally viewed as “evil” is in actuality closer to a machine malfunction, perhaps one might think that our compassion for a criminal should be as great as our compassion for the being that suffered because of the crime – except that we would have no true choice in any actions we might take in relation to compassion. Stated in a less extreme manner, the less one believes that moral accountability for criminal behavior is generally strong, the more attractive arguments against strong criminal prosecution and punishment for animal abuse may appear.Footnote ³² If our decisions are viewed as fully or in large part unavoidable due to some mix of our genetics and environment, enthusiasm for blaming criminals who abuse or neglect animals is likely to lessen. And if humans are not really to blame, punishment is out of the equation as a goal of criminal law, and we need only to look to deterrence, which is more readily challenged with regard to the effectiveness of incarceration.

However, the hard determinism asserted by many neuroscientists is challenged by many or most legal philosophers. Many philosophers are “soft determinists, also called compatibilists (no free will, but responsibility).”Footnote ³³ Also, many legal philosophers “reject the proposition that neuroscience will one day prove, or otherwise justify, hard determinism.”Footnote ³⁴

Despite scientific advances, the human brain may be too complex to ever fully understand like a machine.Footnote ³⁵ In any event, even if ultimate moral accountability does not exist, many believe that it may be necessary for us to act as if it does. Professor Sapolsky acknowledges that “[w]hereas it is true that, at a logical extreme, a neurobiological framework may indeed eliminate blame, it does not eliminate the need for forceful intervention in the face of violence or antisocial behaviour.”Footnote ³⁶ Completely abandoning human responsibility would wreak havoc on social order. Research indicates that undermining belief in free will leads to increased cheating and aggression, reduced helping behaviors, and less gratitude.Footnote ³⁷

Of course, one need not completely reject the assumption of free will to accept the significance of mitigating factors, such as environmental conditioning or neurological limitations. However, relevant to the issue of enhancing compassion, it may be telling that one consequence of lessening emphasis on free will may be a reduction in helping behaviors.

Although I disagree with my acquaintance discussed above who feels more compassion for animals than for humans (even children), she is correct in pointing out the humanity of what we perceive as evil behavior. Regardless of neuroscientists’ and academic philosophers’ theories, on the ground our society, including the animal protection movement that supports criminal prosecution of abuse, is deeply committed to the belief that humans are responsible for evil actions. In the Abrahamic faiths, Adam and Eve’s encounter with the tree of knowledge of good and evil is included in the story of creation,Footnote ³⁸ and illuminates the foundational nature of Western society’s conviction that humans are distinctive moral beings. Thus, the view that society needs to deter evil human behavior, and that it needs to punish evil human behavior, cannot be understated; it has the deepest of roots in our history.

Believing in human evil reflects a view that not all incarceration of humans is unjustly oppressive. Given our societal underpinnings, even-handedly imposed societal punishment, including incarceration in particularly serious cases, of people who engage in what is perceived as evil misconduct is likely to be viewed by most as justice rather than as inappropriate oppression. The ubiquitous employment of incarceration systems throughout the world’s societies demonstrates how powerfully we believe that incarceration is just in some circumstances. Thus, one may assert that all animals should be freed from their cages – or disagree with that assertion – and still support some form of jail time, and in some cases even felony prosecution, for criminals who engage in sufficiently egregious harm of animals.

2.4 Interconnectedness/Intersectionality and Animal Rights Arguments Based on Cognitive Capacities

Critics of the animal protection movement’s emphasis on criminal punishment call on the movement to care more about humans, with an apparent hope or assumption that more thoughtfulness and discussion can bring about this change. But arguments such as those presented in Beyond Cages seem unlikely to upend the animal protection movement’s deep commitment to strong criminal prosecution and imprisonment of criminal animal abusers. It seems reasonable to hope that Beyond Cages and other critiques will encourage the animal movement to be more thoughtful and nuanced in its advocacy for enhanced criminalization, but an about-face on encouraging criminal prosecutions is probably not, nor should it be, in the cards.

But there is something else in Beyond Cages. The book has the effect – perhaps unintentionally – of illustrating in some depth uncomfortable problems with the caring-for-animal-rights-furthers-caring-about-human-rights argument, at least with regard to arguments that this compassion should lead to legal personhood for animals. In other words, although the book is helpful in calling for change regarding criminal justice, it also shows that passion for animal rights is not always connected to strong compassion for humans. This has significant implications for current animal rights issues. Although many animal rights activists believe that all sentient animals should be legal persons, some activists are focused, at least in the short term, on arguing for legal personhood for particularly intelligent animals based on their cognitive capacities. Under this cognitive capacities approach, a chimpanzee or an elephant might be assigned legal personhood, but less intelligent animals, such as cows and chickens, might remain sentient property. Advocates for the cognitive capacities approach may hope that eventually all sentient animals will become legal persons, and may view an initial focus on cognitive capacities as the best way to steer courts in the direction of breaking down legal barriers between humans and animals.

But disability rights advocates and others have voiced concern that considering a being’s cognitive abilities as a measuring tool for determining personhood would be dangerous for the most vulnerable humans.Footnote ³⁹ Reliance on the argument from marginal cases to attain personhood for intelligent animals could weaken enthusiasm for strong rights protection of humans who lack strong cognitive abilities. Focusing instead on humans’ norm of sufficient capacity to be justly accountable under our legal system protects vulnerable members of the human community – regardless of whether they as individuals meet the norm – because their personhood is anchored in meaningful belonging as part of the human community rather than in individual cognitive abilities).Footnote ⁴⁰

Promoting interconnectedness/intersectionality regarding animal and human rights does not negate concerns about dangers to vulnerable humans created by inventing animal personhood based on cognitive capacities. In 2010, Professor Massimo Filippi, a supporter of “fundamental rights” for animals,Footnote ⁴¹ and his coauthors performed a functional MRI study of 20 omnivore subjects, 19 vegetarian subjects, and 19 vegan subjects.Footnote ⁴² The subjects’ brain activation was measured as the subjects were shown pictures of human beings and animals suffering (“mutilations, murdered people, human/animal threat, tortures, wounds, etc.”).Footnote ⁴³ According to Filippi’s study, the brains of the vegetarians and the vegans reflected greater empathy than the brains of the omnivores.Footnote ⁴⁴ Curiously, although perhaps a bit to the side, a strong preponderance of other studies suggest that vegans and vegetarians are more likely to experience mental health challenges than are omnivores.Footnote ⁴⁵

These sorts of studies are interesting, but, particularly in light of other evidence and experiences, they are not persuasive regarding capacities-based animal legal personhood. Peter Singer supports animal legal personhood based on cognitive capacities.Footnote ⁴⁶ But rather than being applauded as an interconnected/intersectional ally, he is an ongoing target of protests by disability rights advocates. The advocates are angry that Singer has asserted that parents of babies with significant disabilities should be permitted to euthanize them.Footnote ⁴⁷ This position doubtless does not strike these disability rights advocates as empathetic to vulnerable humans.

The parade of antihuman or insensitive-to-human actions and sentiments by animal rights activists highlighted in Beyond Cages should provide a wake-up call for any who believe that more compassion for some always leads to more compassion for all. As noted above, Marceau states that animal activists have been stereotyped as misanthropes – not as broadly compassionate people-lovers. He references the Non-Humans First Declaration, a document that seeks to govern the behavior and priorities of animal activists.Footnote ⁴⁸ The document captures “the notion that the oppression of humans must be ignored, and everywhere treated as irrelevant.”Footnote ⁴⁹ Further, Marceau shares that “it is not hard to find racist comments on the blogs and Facebook pages of leading animal protection groups,”Footnote ⁵⁰ and he provides illustrations of hateful or insensitive racist behavior by animal activists.Footnote ⁵¹ Marceau appropriately acknowledges that these particularly disturbing views are not representative of most animal activists, but his emphasis on these illustrations demonstrates his broader concern for inadequate human compassion in the movement.

Less extreme manifestations of discounting humans are perhaps representative of a broader cross-section of animal activists. Marceau relates that in 2015, when a wealthy American hunter killed a lion named Cecil in Zimbabwe, widespread outrage led to protests that grabbed headlines across the nation.Footnote ⁵² This led to a backlash in minority communities, as many sensed society expressing much more anger at the killing of a lion than it expresses over the unjustified killing of oppressed humans. Marceau discusses a New York Times op-ed written by a Black feminist, in which the author joked [her description] that “I’m personally going to start wearing a lion costume when I leave my house so if I get shot, people will care.”Footnote ⁵³

Those who were outraged over Cecil the Lion’s killing but who do not fret much over the wrongful deaths of humans are probably, for the most part, not sufficiently sensitive to human suffering rather than misanthropic. Even if animal activists’ reputation for misanthropy is mostly undeserved, which I believe is so, comparing intelligent animals with the least cognitively capable humans is fraught with danger.

We have been in a somewhat comparable situation before, with some similarities and some differences, and in that situation our society failed vulnerable people more through insensitivity or apathy regarding their rights than through hatred. In the early-twentieth century, the eugenics movement was viewed by many intellectuals as a cutting-edge concept to better society, supported by enlightened understanding of modern science, rather than simply as a tool to oppress weak humans. Dozens of Nobel Prize winners, as well as world leaders such as Winston Churchill, Theodore Roosevelt, and Woodrow Wilson supported the eugenics movement.Footnote ⁵⁴ The movement included progressive liberals as well as conservatives.Footnote ⁵⁵

The movement was not motivated by misanthropy; its supporters were simply not sufficiently sensitive to the rights of vulnerable humans, particularly humans with significant cognitive limitations. It was no less a figure than Oliver Wendell Holmes who infamously pronounced “three generations of imbeciles is enough” in approving the forced sterilization of seventeen-year-old Carrie Buck due to her and her family’s perceived lack of intelligence in the 1927 case of Buck v. Bell.Footnote ⁵⁶ His appalling reasoning:

It was not until after the dramatically worse violations of human rights in World War II that the most blatant eugenics policies fell out of favor, and we still often fail to care as much as we should about effectively voiceless humans with significant cognitive limitations. The eugenics movement’s popularity among elites who thought of themselves as enlightened, science-based visionaries, but who embraced treating vulnerable humans more like we treat animals, calls for hard reflection. Of note in addressing interconnectedness/intersectionality, eugenics was often promoted in terms of compassion; it was seen as saving the weak from “predetermined lives of misery and immorality.”Footnote ⁵⁸ Particularly given our history of “compassionate” callousness to vulnerable humans, focusing on legal personhood for particularly capable animals, and comparing the capacities of animals and humans with limited capacities in doing so, is a profoundly dangerous undertaking. Although seeking animal legal personhood based on sentience is also problematic, it may present fewer dangers to the most vulnerable humans than does the animal cognitive capacities approach, as it does not ask us to make a judgment about a being’s intelligence as a path to animal personhood.

Finally, zero-sum game theory observations regarding rights can be a bit depressing to contemplate, perhaps because they are so harshly (but ironically) Darwinian. We would all prefer to contemplate only win/win scenarios, with rights in a utopian state of perpetual expansion, so long as we feel love for other beings, which will in turn make us feel even more love for other beings.

But then there is reality. Rights are often in competition, and new rights mean new competition. For example, assuming expansive views of rights were accepted, the rights of humans and animals to the best medical care available would compete with the rights of those animals whose use in experiments enable human medicine and veterinary medicine advances.Footnote ⁵⁹ The proponents of the Nonhumans First Declaration, like my acquaintance discussed above who loves animals for their innocence and has disdain for humans due to our immorality, understand and embrace this competition. Their insistence that animals’ interests be put first, ahead of humans’ interests, recognizes that there is a zero-sum game aspect of rights.

There are also, sadly, zero-sum implications of active compassion. Presumably those like the Nonhumans First Declaration advocates want animals to come first in our hearts, as well as in our laws. As noted above, there is some truth to interconnectedness/intersectionality arguments regarding compassion, but the paradigm has its limits. For example, the more time and money one contributes to causes specifically promoting human rights protection, the less time and money one has available to contribute to causes specifically promoting protection of animals. This does not mean a person cannot feel compassion for and take active steps to further protection of both vulnerable humans and animals – it simply means that the principle of scarcity places some limits on the practical steps a person takes in response to their compassion for multiple beings or groups of beings. This may be so regarding feelings of compassion – we are not likely capable of being intensely focused on every specific manifestation of oppression in the world – and it is clearly so regarding active manifestations of compassion.

2.5 Conclusion

A final issue I will note regarding interconnectedness/intersectionality in the context of animal rights and criminal prosecutions relates to the need for caution regarding assumptions related to oppression, compassion, and animals. Supporters of strong animal rights may assume that most or all human uses of sentient animals that cause the animals pain or restrict their liberty constitute immoral oppression. But animal welfare supporters would likely disagree, embracing instead an ongoing process of balancing human and animal interests. Advocates of an evolving animal welfare paradigm are focused on human responsibility as moral and legal persons for appropriate treatment of animals rather than on animal legal personhood. In practical terms, this may mean that eating meat or allowing biomedical research on animals would be viewed as immoral “oppression” of the animals eaten or experimented upon by many advocates of a strong rights paradigm, whereas animal advocates who support the welfare paradigm would likely utilize the term less broadly while still caring about animal suffering.

Although strong animal rights supporters and animal welfare supporters may have differing views regarding what constitutes unacceptable oppression of animals, both groups embrace cultivating more compassion for animals. This is another answer to those who claim that interconnectedness/intersectionality of compassion should lead to strong animal rights. Interconnectedness regarding compassion may lead people to stronger interest in appropriate animal protections through a welfare paradigm; it need not push them into support of a strong rights paradigm. It may be that seeking to expand the breadth of our compassion is a good fit with a healthy interest in increasing protection of animals as we learn more about their capacities and become more sensitive regarding their suffering. But militant or extreme devotion to an isolated focus of compassion for animals may not be a good recipe for enhanced interconnected/intersectional compassion or rights, and indeed may, as addressed above, in fact create a real (if not short-term) threat to vulnerable humans.

Marceau’s deep concern both for animals and for humans is laudable, but, unfortunately, he is not the animal rights everyman. As an advocate for an evolving animal welfare paradigm, I applaud his call for more thoughtfulness and compassion in criminal adjudication in conjunction with more compassion for mistreated animals, but I also view it as illustrating challenges for, rather than providing a path to support for, animal legal personhood – particularly animal legal personhood based on cognitive capacities. Supporting active evolution of animal welfare protections is an uncomfortable but appropriate middle ground balancing of compassion for animals and concern for humans. Similarly, encouraging appropriate reforms of animal abuse prosecutions without completely rejecting incarceration in particularly serious cases is an uncomfortable but appropriate middle ground for enhancing compassion for humans who commit crimes harming animals, while still insisting that these humans are moral beings and subject to justice.

3.1 Introduction

Who are the victims of animal cruelty? There is the short-haired dog shoved outside in below freezing temperatures with no access to shelter, food, or water, and left for hours. There is the ferret sent through the mail in a box who languished for days before chewing his way out. There is the pigeon that was attacked in the local park and hit over and over with a stick until its life drained away. There is the dog bludgeoned to death with a bat for no apparent reason and then put back in his kennel as if he were just peacefully sleeping in a pool of blood. There is the puppy who has suffered more blunt force trauma in her short life than most humans or animals will ever experience. There is the cat thrown against a tree and killed in a fit of anger. And another cat who is repeatedly beaten, kicked, strangled, and left for dead in the dumpster. There is the dog hung from the tree and decapitated. And the dog repeatedly stabbed out of spite. And the dog (or horse) who is sexually abused. Victims of animal cruelty range from companion animals to livestock to wild animals. Unfortunately, no species is safe from human cruelty. Examples are, regrettably, far too many to list, but those are just a few.

Animals are intelligent and sentient beings and, just like human victims, warrant both the protection of our laws as well as the pursuit of justice. Those who abuse animals should be confronted and held accountable. One way of doing this is through the levying of criminal charges and prosecution.

Prosecutors have a tremendous amount of power, discretion, and responsibility – the intended exercise of which is to advance justice. Fundamentally, justice is defined as the fair and proper administration of laws.Footnote ² Despite a seemingly straightforward definition, the term “justice” has myriad interpretations, and in modern society its applicability has expanded outside the criminal justice system to intertwine with social and economic justice as well. Prosecutors work within the confines of the criminal justice system and the laws that legislators have passed, and a prosecutor’s view of justice is thus appropriately tailored to the criminal justice realm. Prosecutors have the responsibility and challenge of pursuing “justice” in every case – striking a balance between the interests of the state (the citizenry they represent) and the accused, fairly and rationally considering what consequences are appropriate, repairing harm done or at least bringing closure to victims, and promoting future adherence to the social contract and laws that govern a cohesive, orderly, and peaceful society.

These are the reasons I became a prosecutor. I believe in the ideals of law and order, in the value of acknowledging right from wrong and in enforcing penalties when an individual’s actions harm others. I became a prosecutor to stand up for and give a voice to those who may not have the words, strength, or desire to stand up for themselves; or for those who cannot speak because they have lost their lives at the hands of others. I humbly but proudly serve on behalf of society’s most vulnerable members, and that includes animals – intelligent and sentient beings – who cannot speak for themselves. Whoever (or whatever) the victim, I, along with those in my profession, strive for the administration of justice in each and every case. And it is through this work that I try to instill in others that respect for the dignity and life of others – animals included – is necessary for a functioning society and cannot be overlooked.

Animals are everywhere in our lives. It is estimated that at least 67 percent of US households, or about 85 million families, own a pet.Footnote ³ And it’s no wonder why. Animals – both wild and domesticated – enrich us in so many ways. Pets provide not only companionship, but also encourage us to be more physically active and to get outdoors. They increase opportunities for socialization and can be helpful in managing loneliness and depression. They teach responsibility and other practical skills to kids, provide laughter and entertainment for the whole family, give love unconditionally, are loyal, and will never share your secrets or betray your confidence. Research shows animals can reduce stress, high blood pressure, and anxiety and even make you and your family feel safer at home.

It is because of these and other attributes that many people consider pets to be part of the family. They really can be a human’s best friend. Unfortunately, in addition to being perfect companions, animals are also the “perfect” crime victims. The power dynamic between perpetrator and victim is vast, and animals are usually ill-equipped to defend themselves against human aggression. Additionally, animals lack the ability to report the wrongs done to them, no matter how egregious. Thus, there is a very narrow window of opportunity for holding animal abusers accountable. The prosecution of these crimes relies heavily upon observant citizens coming forward to law enforcement when an act of cruelty is committed in public, the cooperation of friends and family when the cruelty happens within the home, and the keen awareness of veterinarians and other professionals when neither members of the public nor friends or family members are in a position to be able to report the abuse. Animals can’t talk – at least not in a language that we speak. Because of this, they are among the most vulnerable and voiceless victims in the criminal justice system.

Holding animal abusers accountable and pursuing justice on behalf of animal victims is a worthwhile and important endeavor. From my perspective, the prosecution of animal cruelty offenders is essential for three primary reasons: (1) the pursuit of criminal charges can be the impetus for the removal of the victim animal from the offender’s custody; (2) the levying of criminal charges sends a strong message to both the offender and society as a whole that the proper and humane treatment of animals matters (whether wild, livestock, or pet); and (3) the imposition of a sentence upon conviction – whether it be punitive, rehabilitative, or a combination thereof – aims to ensure that there is an intervention and the offender’s conduct is not repeated. Additionally, the victimization of animals often coincides with other crimes, such as intrafamily and intimate partner violence, child abuse, elder abuse, sexual abuse, and organized crime, to name but a few. Accordingly, the prosecution of animal cruelty offenders is beneficial to ensuring that our communities continue to value and respect the lives of animals and humans, and to uncovering other crimes and enhancing community safety as a whole. In this chapter, I do not pretend to speak for all prosecutors. The comments, thoughts, and discussion that follow are based upon my experience and observations, and my personal professional journey.

3.2 The Legal Framework: Colorado Animal Cruelty Laws

Prosecutors and members of the law enforcement community who investigate and prosecute acts of animal cruelty have the difficult task of being the voice of these voiceless beings in the courtroom and criminal justice system. Fortunately, Colorado prosecutors have a fairly broad statutory scheme under which we can charge animal cruelty offenses, and thus have many tools at our disposal to try to ensure that animal abusers are held accountable. Conduct constituting cruelty to animals is broadly defined and is not limited to companion animals, but rather extends its protections to “any living dumb creature.”Footnote ⁴ An individual can be charged with cruelty to animals, a class one misdemeanor,Footnote ⁵ or aggravated cruelty to animals, a class six felony.Footnote ⁶ In the event that an individual has sustained a prior conviction for either cruelty to animals or aggravated cruelty to animals, the penalty increases and a second or subsequent conviction becomes a class six felony or a class five felony, respectively.

The broadest provision and that which is most widely used in charging these types of offenses prohibits a person from knowingly, recklessly, or with criminal negligence overdriving, overloading, overworking, or tormenting an animal; depriving an animal of necessary sustenance; unnecessarily or cruelly beating an animal; allowing an animal to be housed in a manner that results in chronic or repeated serious physical harm; carrying or confining an animal in or upon any vehicles in a cruel or reckless manner; engaging in a sexual act with an animal; otherwise mistreating (whether by act or omission) or neglecting an animal; or, abandoning an animal.Footnote ⁷ It is also unlawful to intentionally abandon an animal, or to recklessly or with criminal negligence torture, needlessly mutilate, or needlessly kill an animal.Footnote ⁸ In addition, there are also specific provisions under Colorado law that make it a misdemeanor for an individual to commit cruelty to a service animal or a certified police working dog.Footnote ⁹ Any of the above-described conduct results in a class one misdemeanor (assuming it is a first offense). Aggravated cruelty to animals, which is a class six felony offense, prohibits a person from knowingly torturing, needlessly mutilating, or needlessly killing an animal.Footnote ¹⁰ The difference between misdemeanor and felony acts of cruelty, thus, is the mens rea – or mental state – required for the offense, coupled with the degree of harm done to the animal.

In addition to providing a host of theories under which prosecutors can charge individuals for acts of cruelty to animals, Colorado’s animal cruelty statute also equips prosecutors with other tools to ensure the safety and continued well-being of the animal victim during the pendency of the criminal case and beyond. Under Colorado law, peace officers who have probable cause to believe an animal is a victim of an act of animal cruelty can lawfully take possession of and impound that animal if the officer believes the animal is or will be endangered if left in the household.Footnote ¹¹ In other words, an officer may remove an animal from an abusive situation at the very initial stages of investigation – even before charges are presented to or filed by the district attorney. This provision is paramount to ensuring the animal’s well-being, and inherently recognizes and seeks to avoid the harm that can be caused by a slow investigative and filing process. Animal cruelty investigations can take days, weeks, or even several months to complete. By having this statutory authority to seize and impound animals immediately, prosecutors do not have to worry about making a hasty filing decision to ensure that an animal is removed from a dangerous situation. And, in the event that the animal seized and impounded is severely injured, Colorado law goes one step further and allows a licensed veterinarian to care for or, if needed, humanely euthanize an animal that has been seized and impounded if, in the veterinarian’s opinion, the animal is experiencing extreme pain or suffering or is severely injured, disabled, or diseased past the point of recovery.Footnote ¹²

The Colorado criminal code also has a statutory provision that governs impounded animals and the associated costs of care to continue to hold the animal throughout the pendency of a criminal case.Footnote ¹³ The impounding agency (usually animal protection or a local shelter) has the authority to determine the appropriate disposition of an animal in its care if the owner or custodian of the impounded animal either voluntarily relinquishes the animal or if the court finds probable cause for impoundment but the owner or custodian elects not to pay for the animal’s care while it is in the shelter. While there are fairly nuanced provisions that govern the cost of care and ensure that the owner or custodian has access to a court hearing and due process on the matter, these provisions provide law enforcement and prosecutors with a legal process to either temporarily or permanently remove animals from harmful situations. The levying of criminal charges and request for payment from the defendant to care for the seized animal often forces the defendant to evaluate whether he or she wants to retain ownership or surrender the animal to the care of the shelter. In the instance where a defendant wishes to retain ownership of the animal, the reality is that the animal will remain in the care and custody of the shelter (though sometimes in a foster placement) until resolution of the case and until a court orders the return or relinquishment of the animal. The wheels of justice often churn slowly, and this may result in the animal being at the shelter for a prolonged period of time. However, in the instance where an animal is surrendered, this means that animal can be cared for by a shelter until it is adopted out to a new family who, ideally, will love and care for the animal and not subject it to further abuse. In either scenario, there is some peace of mind that the animal has at least been removed from harm’s way whether temporarily or permanently.

Colorado’s fairly strong and comprehensive animal cruelty statutes have led to Colorado routinely ranking in the top tier of states for animal protection laws.Footnote ¹⁴ However, despite being a fairly animal-friendly state with a host of favorable statutory provisions and laws that allow prosecutors to pursue justice in these types of cases, the investigation and successful prosecution of animal cruelty cases can be challenging due to resource constraints and sometimes, a lack of investigative know-how.

3.3 Resource Constraints

If you ask your typical local prosecutor or friends in law enforcement what constitutes a “serious” crime, the range of responses often includes homicide, sexual assault, aggravated robbery, human trafficking, child abuse, and the like. Most prosecutors are likely concerned, and rightly so, with what we refer to as “victim crimes” and those crimes which are perceived to have the most significant safety risk to the community. These are the cases where human lives are lost or changed forever. And they are some of the most gratifying cases to work on and present to a jury. But where does animal cruelty fall on that spectrum? I submit that, unfortunately, in many law enforcement agencies and prosecutor’s offices, it has historically fallen toward the bottom of the “severity scale.” Fortunately, that is starting to change.

While investigative agencies such as animal protection units, Pet Animal Care Facilities Act (PACFA) inspectors, and specially commissioned agents of the Department of Agriculture exist, many law enforcement agencies don’t have units dedicated to the investigation of animal cruelty offenses. In fact, some law enforcement agencies don’t have a single detective or officer trained to investigate these offenses. While this certainly varies from jurisdiction to jurisdiction, in Denver, for example, an animal cruelty investigation is usually initiated by an officer with Denver Animal Protection (a division of the Colorado Department of Public Health and Environment), but then must be turned over to the police department to pursue charges at the state level. Once in the hands of the police department, the case is usually assigned to a detective in a general assignment, who has likely never investigated an animal cruelty offense.

While I believe this is changing (thankfully!), the general attitude toward animal cruelty offenses has been that the time and effort needed to investigate or prosecute these offenses are difficult to justify. And from a strict return on investment perspective, that may be true. The “bang for your buck” that you often get with other offenses just doesn’t exist with animal cruelty offenses. There will never be a victim who can voice their thanks or appreciation for the work done on their case. No matter how heinous the act, if it is a first offense, the highest chargeable offense is a class six felony, which is a probation-eligible offense and carries a maximum penalty of up to and between twelve months’ and eighteen months’ incarceration. Animal cruelty investigations are unique and can be a challenge to investigate; the more serious cases often require the expenditure of significant resources and energy. It is difficult to justify pulling a criminalist from a homicide or sexual assault scene to assist in the processing of an animal cruelty scene where the stakes (on paper, anyway) are much lower, and frustrating for a case that usually results in a misdemeanor filing, or the lowest level felony, at best.

As with any kind of criminal offense, some cases are easy to solve, and others are quite challenging. Cases that are fairly cut-and-dry take minimal to no resources and thus are easy to get investigative buy-in. For example, in one case, dispatch was made aware that a citizen had observed an individual in a park punching his dog repeatedly in the head and had a cell phone video recording of the incident. In that instance, all that was required was for an officer to respond to the location, interview the witness(es), locate/identify the suspect, and review and collect the cell phone video footage. Similarly, another case involved a security guard at an apartment complex who reviewed security footage in an effort to help locate a tenant’s lost cat. In doing so, he uncovered footage of his coworker (also a security guard) punching, kicking, throwing, and strangling the tenant’s cat while walking the halls late one evening. The footage then showed the security guard toss the cat in the dumpster and leave it for dead. The security guard who uncovered this footage reported it to law enforcement and identified his colleague in the video. In these circumstances, the evidence is strong and speaks for itself, and the additional investigation required to prove that the criminal act happened is minimal. Most responding officers or detectives will not hesitate to wrap up these kinds of cases and submit them to prosecutors for acceptance of charges.

Oftentimes, however, these cases develop over time and require collaborative action between various agencies and consultation with experts external to the investigation. These more nuanced investigations can be time-consuming and costly, and not every jurisdiction has adequate resources or time to invest into such cases. The following example is a case that took roughly six months to fully investigate and bring to a point where charges could be filed.

A young couple, let’s call them Amy and Bob,Footnote ¹⁵ bought a six-week-old pit bull mix in August, and by the end of October of that same year, the previously perfectly healthy puppy was at an emergency veterinary hospital with numerous broken bones and on the verge of death. The veterinarian astutely called Animal Protection due to concerns of suspected animal cruelty,Footnote ¹⁶ and law enforcement opened an investigation. Unlike the previous examples, where we had cooperative witnesses and/or video evidence of the person responsible for the act or acts of cruelty, here we had no readily apparent means to prove at whose hands the animal had suffered.

In this type of case, the first challenge is usually proving ownership and continuity of care for the period of time in which injuries could have been sustained. To do so, we consulted veterinary and shelter records and also looked to see whether Amy or Bob had any prior contact with Animal Protection. Once continuity of care for the months leading up to the veterinary visit had been established, we sought to determine the cause or causes of the puppy’s injuries. To do so, we scrutinized the veterinary records and consulted an outside expert.

Reports indicated that upon presentation to the first veterinarian, the puppy was in great distress, cyanotic (bluish in color due to deoxygenation), dyspneic (breathing with great difficulty), and with noticeable petechia on the external pinna of the ears and ecchymoses (discoloration/bruising) on the ventral abdomen. The second veterinarian to see the puppy reported similar observations and through testing learned of additional injuries to include a pneumothorax, at least two acute rib fractures, several older rib fractures, and a fractured left femoral head.

One of the strongest indicators of nonaccidental trauma (i.e., abuse) in animals is the presence of multiple fractures in different stages of healing, which is what we uncovered here. However, to narrow down a suspect, we needed an approximate timeline as to when the injuries occurred. We consulted a forensic veterinarian,Footnote ¹⁷ who did a comprehensive review of all records associated with the case and confirmed that the puppy had suffered multiple rib, spinal, and leg fractures, all in different stages of healing, which she opined indicated repeated and numerous episodes of blunt force trauma and animal physical abuse. Her findings also revealed that the puppy’s blood work – which showed she was mildly anemic, had a very high white blood cell count, low eosinophils, and elevated liver enzymes – was consistent with acute trauma.

Once we determined we could prove that the injuries were consistent with abuse and had an approximate timeline, the next challenge was identifying the individual responsible for the injuries. We caught a break when additional witnesses came forward after the local shelter that was coordinating the treatment of and caring for the puppy posted her story on its social media page as part of a fundraising effort to pay for her surgeries. Three of Amy’s coworkers divulged to investigators that a month or so prior, Amy had come into work upset because Bob had been abusing the puppy and had thrown her across the yard after she defecated on him, seemingly stunning or momentarily paralyzing the puppy. This admission to her coworkers and the approximate timeframe of disclosure (mid–late September) was corroborated by an anonymous tip that Animal Protection had received in mid-October referencing a September incident of abuse, and aligned with the timeline of injuries we had established.

Despite multiple interviews, neither Amy nor Bob ever provided a full account of what happened to the puppy. Nevertheless, after an extensive and protracted investigation, we ultimately moved forward with charging two counts of misdemeanor animal cruelty (for two distinct incidents we believed we could prove) against Bob.

In many respects, the time and attention required by these more complex animal cruelty cases parallels that of child abuse investigations involving young, nonverbal children. Those cases often require investigators to cast a broader net to eliminate possible suspects before they can identify the actual suspect, and to eliminate explanations of accidental injuries before they can definitively prove abuse. Just as medical experts are able to use their experience to determine whether a child’s injuries are consistent with accidental trauma or indicative of physical abuse, so too are veterinarians well situated to assess an animal’s injuries and often serve as the first line of defense for these animals. Puppies – just like children – are fairly resilient and heal quickly, and a careful examination of their injuries can tell you a lot about what they have been through even if they can’t tell you themselves. While their injuries will rarely tell you exactly how they were sustained (e.g., whether the animal was hit with a bat or golf club, or just kicked), the type and location of injury can often tell you whether it was accidental or nonaccidental trauma.

Given the complexity of these types of cases, they are often difficult to pursue without significant interagency collaboration. Enlisting the assistance of various agencies and experts is time and resource intensive. Regardless of the challenges that these investigations may pose, we should be pursuing these offenses and doing whatever it takes to complete a thorough investigation because, simply put, these cases matter. They matter because animals are sentient beings who very much experience pain and are victims in and of their own right. There is much literature and research surrounding the link between animal cruelty and human violence and other crimes, and in that regard, the public policy argument for pursuing these cases is also strong: when an animal is being abused, human lives and community safety may also be at risk. From my perspective, however, regardless of whether there is a link to other crimes and regardless of whether there is a risk of additional violence, the harm done to an animal, in and of itself, justifies criminal prosecution.

3.4 Pursuing Justice in the Courtroom

Animals are often the smallest and most overlooked victims of intrafamily and intimate-partner violence. Oftentimes abusers intentionally target an intimate partner’s animal to exert power and control over them. Sometimes abusers take their rage out on an animal simply because it’s there, or they know that hurting the animal will hurt their partner more than anything they could do to them. Other times abusers just go after whoever or whatever is closest. No matter the reason, it is important that we speak not only for the human victim, but also for the animal. Sometimes that means we speak for the animal victim even when the human victim does not desire that we do so. Oftentimes a human victim’s desire for justice aligns with getting justice for a harmed animal, but in some cases, for myriad reasons, a human victim may not want the state to pursue charges at all, let alone for an act of animal cruelty. In these instances, prosecutors must exercise compassion and understand the varying dynamics at play and use their discretion in whether or not to pursue charges. From my perspective, it is often most appropriate to pursue animal cruelty charges regardless of what others involved in the case may desire, as we simply cannot ignore violence, whether done to a human or an animal. In other cases, there may not be a secondary victim or witness, but those cases too, remain worthy of our pursuit.

3.5 Sentencing Considerations

It is our obligation as prosecutors to ensure that justice is done, and that those who perpetrate crimes against animals are not “given a pass” simply because their chosen victims can’t talk and aren’t considered victims in the truest legal sense (as animals are still considered property under the law). While many prosecutors are aware of and see evidence of the link between violence to animals and violence to humans, we should vigorously pursue animal cruelty crimes not just because a human might be at risk now or later on, but rather do so in recognition that animals are sentient beings who experience pain and suffering. We must pursue these crimes to ensure that the dignity of animals is protected and to reinforce that their lives have value in our communities.

Thus, the question becomes: What constitutes an appropriate sentence for an animal abuser? There is no “one size fits all” answer to this question, and when recommending a sentence, prosecutors typically take a number of different factors into consideration. In my experience, animal cruelty offenders run the gamut. Some offenders are simply uninformed and negligent, others have psychopathic tendencies and are cold, calculated, and intentional in their harm to animals. Others are encumbered with mental health diagnoses, substance abuse issues, or even a dearth of resources that contribute to the act or acts of cruelty. While the criminal justice system may not be fully equipped to address some of these more nuanced and complicated dynamics, it can provide direction and incentive toward more responsible behavior as well as access to resources that can help address these and other criminogenic issues, and thereby assist in protecting the current animal victim and animals in the future. After all, an animal doesn’t suffer any less if its abuser has planned to cause it harm or if its abuser has just “snapped” out of anger or because they were under the influence of drugs or alcohol. The harm done doesn’t change; the pain an animal feels or the loss of life suffered does not depend on the mens rea or intent of its abuser. From my perspective, criminal charges are appropriate where a crime has been committed. It is in the plea-bargaining stage or in the recommendation of a sentence where a particular offender’s culpability, needs, and specific characteristics ought to be taken into consideration.

In Colorado, the criminal code clearly sets forth the purposes of sentencing. In doing so, it provides judges, prosecutors, and defense attorneys various points to consider and argue. The purposes of sentencing are multifold and include: punishing a defendant in proportion to the seriousness of the offense; assuring fair and consistent treatment of all convicted offenders; preventing crime and promoting respect for law; deterring others likely to commit similar offenses; and promoting the defendant’s rehabilitation.Footnote ¹⁸ In light of these sentencing purposes, the case-specific facts and circumstances of every defendant must also be taken into consideration.

For most prosecutors, requests for sentences to jail or prison are reserved for the most heinous offenders who we feel cannot be safely managed in a community-based setting or those offenders who continue to offend repeatedly despite numerous prior attempts at intervention and rehabilitation. Animal cruelty can be an indication of mental illness, substance abuse, and other antisocial tendencies. Because of that, treatment-based sentences are often sought in an effort to address the underlying cause(s) of the animal cruelty behavior and interrupt the deviant thought-patterns and, thus, hopefully, rehabilitate the offender before they have the chance to victimize other animals or humans. Understanding the reason why someone harms an animal can be instrumental in determining the appropriate sentence. To that end, upon conviction at trial or by acceptance of a guilty plea, a court is required to order an evaluation to be conducted prior to sentencing to assist in its determination of an appropriate sentence.Footnote ¹⁹ If the evaluation results in a recommendation of treatment, and if the court agrees, the person will be ordered to complete an anger-management treatment program and/or any other treatment program that the court deems appropriate. While this provision doesn’t explicitly specify an offense-specific evaluation, many prosecutors have taken to requesting a Forensic Animal Maltreatment Evaluation or a similar evaluation. Such an evaluation helps identify behavioral, mental health, and trauma-based issues relevant to the emergence of animal cruelty behavior; provides an estimation of the likelihood and circumstances for continued abusive behavior; identifies community safety concerns; and provides recommendations for intervention, disposition, and supervision of the offender.

If asked in the abstract what sentence is commensurate with intentionally harming society’s most vulnerable and truly innocent victims, my answer would almost always be incarceration. Acts of animal cruelty are abhorrent in their own right, and when done knowingly or intentionally, I believe such acts justify our system’s most punitive sanction. There are indeed some (and perhaps many) cases of animal cruelty where prosecutors believe that incarceration is more in the interest of justice than a sentence with a purely rehabilitative aim. But we also recognize the bigger picture. We understand that incarceration is finite, and these offenders will be back in the community in short order. Additionally, we understand that these offenders are potentially dangerous and without treatment, can and will likely victimize other animals (and/or humans) in the future. Given that the maximum exposure (under Colorado law) to incarceration for either a first-time misdemeanor or felony animal cruelty offense is eighteen months, it oftentimes makes the most sense to attempt to address the underlying issues that give rise to the offender’s violence against animals. That generally means a sentence of probation. If we can address these issues early on – whether substance abuse, mental health, anger management, psychopathic tendencies, and so forth – perhaps we can steer the offender in a different direction and away from the path of continued violence. However, in those circumstances where an animal cruelty offender has already been given a probationary sentence and treatment to address their underlying criminogenic tendencies in prior cases, yet continues to escalate and reoffend, prosecutors often do – and should – request a sentence that is commensurate with their underlying offense and obtains a more appropriate level of justice for the animal victim. To that end, a sentence of incarceration may be the only effective way to guarantee that, for at least a period of time, the perpetrator cannot victimize another animal and perhaps will be more strongly deterred from reoffending.

Whether a sentence is negotiated via plea agreement or open to the court upon conviction at trial, it has been my experience that the majority of first-time animal cruelty offenders receive a sentence of probation, often irrespective of whether they have prior unrelated convictions. Still, there are times where incarceration is certainly appropriate for a first-time offender. At the end of the day, the intent and primary hope of every prosecutor is that whatever sentence is imposed, it will deter future criminal conduct and bring some sense of justice and a measure of closure to the victim and society.

Regardless of whether a defendant receives a sentence of probation or incarceration, prosecutors can negotiate additional terms in a plea agreement or ask the court, in its discretion, to order additional conditions as part of a sentence. Frequently requested additional provisions might include that a defendant agree to ongoing animal welfare checks by the local animal protection agency (if he or she has other animals in the home), or that a defendant not be allowed to own, possess, or care for animals at all for a certain period of time.Footnote ²⁰ Negotiating these types of additional terms as part of a plea agreement, or asking the court to order such, is another mechanism by which prosecutors work to ensure a sentence is tailored to limit an offender’s immediate and future access to animals to potentially prevent additional crimes.

3.6 Conclusion

As George Vest so aptly recognized in his closing argument over a century ago,

Do we not owe it to these magnificent creatures (whether companion animals or wild) to learn to reciprocate and to treat them with the respect and dignity? Does not that responsibility extend to prosecutors and law enforcement professionals to uphold the laws that require the appropriate treatment of animals, and to impose appropriate consequences for violations? I submit that the answer to both of these questions is a resounding yes, and that while our criminal justice system may not be perfect (I have yet to find a human-crafted system that is), it is designed to ensure that those who violate laws are held accountable by the imposition of sentences that encourage renewed adherence to the social contract we all bought into when this country was founded with a respect for law and order.

No sentient being deserves to be victimized at the hands of a human, and it is up to us to collaborate with other agencies to do our best to ensure that these crimes are detected and reported and to ensure that animal cruelty offenders are subject to consequences and/or treatment as necessary. To that end, Colorado law provides animal protection agencies, law enforcement, and prosecutors with a significant number of tools to investigate these cases fully and strive to achieve justice for these vulnerable and voiceless victims. Wild animals, livestock, and companion animals alike enrich our lives in so many ways. Prosecutors should continue to advocate for the animals who suffer cruelty at the hands of humans and should encourage their fellow prosecutors and law enforcement colleagues to do the same. If we don’t protect our most vulnerable populations, we are failing both the animals and our communities. The criminal justice system is often the last opportunity for intervention and the last chance that society has to encourage behavior to change or to remove the dangerous offender from the community. We, as prosecutors, cannot shy away from that responsibility. Most importantly, we must do everything in our power to mitigate the potential for it to happen again and put an end to the abuse of animals. We need to instill within our communities that the well-being and lives of animals matter in their own right, but also that these cases are serious and warrant adequate time, attention, and resources because a perpetrator of animal cruelty has the potential to be a threat to human and community safety.

4.1 Introduction

The criminal justice system can be viewed as a proxy of sorts. A crime’s severity – as evidenced, in part, by its maximum possible penalty – is seen by many as a direct reflection of society’s values and norms: the higher the maximum possible penalty, the greater the value society places on securing justice for the victim by ensuring that the offender is held accountable for his conduct. There is a reason why armed robbery carries a much higher penalty than theft of the same item – society’s disdain for violence is greater than its concern for the simple loss of property. Additionally, the greater the degree of an offender’s malice, ill will, or premeditation, the greater the society’s interest (as reflected in the exercise of its police power) in holding the offender accountable. This is why an intentional, premeditated homicide is treated far more seriously than a reckless killing.

For years, animal advocates have recognized these dynamics and have worked to reform criminal laws and procedures to elevate the status of animals to reflect more accurately their true standing in society as sentient beings rather than mere property. Many, if not most, of the animal welfare–specific criminal justice system improvements were inspired by, or borrowed from, other areas of the criminal code – such as, child abuse, elder abuse, crime victims’ rights, domestic violence, and civil rights/hate crimes. For example, to overcome police bias in favor of treating domestic violence as a private family matter rather than a crime of violence committed against a true victim, state legislatures enacted mandatory arrest statutes that now require police to investigate and, on probable cause, make an arrest.Footnote ¹ Similarly, in an effort to overcome widespread police bias in favor of viewing animal cruelty as a low-priority matter not worthy of the officer’s time (the “Oh, it’s just a dog” response) rather than as a serious crime of violence committed against a voiceless victim, state legislatures have enacted mandatory arrest statutes that require an officer with probable cause to arrest an offender in animal abuse cases.Footnote ² Mandatory arrest statutes do more than address police bias. They send a message to prosecutors as well, underscoring that viable cases of animal abuse are deserving of the prosecutor’s and court’s attention, just as it is now with viable cases of domestic violence.

Despite this work to elevate the status and lessen the suffering of animals, attorneys working in this space are not without their critics. Most commonly, these critics – many of whom seek to suppress and silence usFootnote ³ – make their living off of animal suffering, oftentimes on a truly massive scale.Footnote ⁴ Given their deeply rooted economic stake in the issue, these traditional critics are genuinely threatened by the strides animal protection attorneys have made in recent years.Footnote ⁵ More recently, some who work to reform the criminal justice system are also questioning the motives and methodology of animal advocates working to enhance the status of animals in the criminal justice system.Footnote ⁶ These criminal justice reform advocates are rightly seeking to address systemic racism and other ills that have historically and unfairly targeted marginalized people, and in particular Black men.Footnote ⁷ However, there is a danger that the animal welfare progress of the last two decades will be compromised without any workable alternative approaches to take its place. Before taking any action that may unintentionally strip animals of the very few, and hard fought, advances they do enjoy, we must be willing to gather and analyze data to develop thoughtful and effective policy that addresses multiple concerns. We must be willing to understand the importance of criminalizing violence against animals, while simultaneously working to address the inherent problems in our criminal justice system. We must also be willing to make heavy investment in prevention programs and community-based reformationFootnote ⁸ while still recognizing the reality that thoughtful application of criminal law remains a valuable and necessary option – never more so than when dealing with those offenders who harm victims who have no legal standing and, thus, no other operable recourse.

In Section 4.2 below, this chapter traces the recent evolution of substantive animal cruelty laws fueled in part by the work of the Animal Legal Defense Fund’s (ALDF) Criminal Justice Program (CJP). Section 4.3 examines the historically pervasive nature of animal abuse and argues that the use of the anticruelty laws remains the most viable approach short of a major change in the legal status of animals. Section 4.4 discusses three areas in which some progress is being made for animals: (1) through an innovative project to collect detailed and relevant data on carceral outcome demographics upon which to make informed policy recommendations; (2) by the justice system’s recognition of animals as crime victims, which is helping to reshape the status of animals in civil litigation as well as helping animal victims; and (3) through the substantial body of scholarship documenting the link between animal abuse and other forms of violence directed at human victims, which has been and remains important and relevant literature for policy development.

Through these sections, this chapter seeks to provide a historical perspective to a small handful of the issues underlying the arguments both for and against using the criminal justice system to address instances of criminalized animal abuse.

4.2 The Evolution of Substantive Animal Anticruelty Laws

The modern evolution of animal anticruelty statutes has a rich history that is interwoven with the inception and operation of the ALDF’s CJP.Footnote ⁹ In the 1980s, state criminal anticruelty laws were woefully lacking. The most heinous conduct was viewed as a minor event, a status offense against the peace and dignity of the state. It was not unheard of for judges, after conviction, to order the return of surviving animals (under the guise of releasing the “evidence”) to the offender as part of the court’s sentence, often with tragic consequences to the animals.Footnote ¹⁰

Before 1986, only four states had a felony-level provision within their anticruelty laws.Footnote ¹¹ By 1993, six states had adopted some form of a felony anticruelty provision.Footnote ¹² By 1999, animal advocates had convinced twenty-three states to add at least one form of a felony animal cruelty provision to their laws.Footnote ¹³ In 2014, South Dakota became the last state to adopt a felony anticruelty law, so as of today, all fifty states have at least one form of a felony-level anticruelty law on the books.

There are many practical, positive impacts of sentencing for felony animal cruelty – impacts that profoundly influence the viability of community treatment and genuine reformation of offenders. For example, the duration of probation can be much longer in a felony case than a misdemeanor (but, of course, can be terminated early with judicial approval), giving the state ample time to work with an offender to ensure true reformation without using a prison bed. Equally important in the community-supervision-versus-prison dichotomy is the simple issue of whether an offender will actually have a probation officer to oversee and assist with his reformation at all.Footnote ¹⁴ In many states, like Oregon, it is all too often the case that misdemeanor convicts are placed on “bench probation” or “case banked,” where the offender has no meaningful supervision at all, with the court assigning an actual probation officer only to offenders convicted of a felony offense.Footnote ¹⁵

There are two additional and very real procedural benefits, namely: (1) independent review of a prosecutor’s charging decision by way of either a preliminary hearing or grand jury; and (2) with the advent of felony sentencing guidelines, a presumptive term of incarceration on a felony conviction can be capped at a much lower term than the misdemeanor in some jurisdictions – for example, in Oregon, aggravated animal abuse under Oregon Revised Statute section 167.322 has a crime seriousness ranking of “six” under the felony sentencing guidelines with a presumptive maximum possible jail term is ninety days for a first-time offender, far less than the one-year jail term cap for misdemeanors, which are not subject to legislatively imposed sentencing guideline limitations.

While the expansion of felony anticruelty laws marked some evolution in the justice system (by helping to overcome some of the institutional bias against these cases), we found that these felony provisions were nevertheless relegated to the lowest levels for the worst possible type of violence (e.g., torture) within a given jurisdiction and were rarely, if ever, used by prosecutors. More troubling was our observation that police and other agencies tasked with enforcement routinely would ignore animal cruelty cases, even when the most brutal violence against animals was happening.

In my experience working in this space,Footnote ¹⁶ a number of factors were responsible for this lack of enforcement, including limited resources, a failure to appreciate the level of suffering experienced by animal victims, incomplete or nonexistent police and prosecutor training on how to investigate and prosecute crimes against animals,Footnote ¹⁷ and simply not caring about animals at a level that would motivate those in the system to take animal abuse seriously.

Compounding the problem is the legal reality that animals are property, do not have legal person status, and thus have no direct legal recourse available to them if they suffer harm.Footnote ¹⁸ The only meaningful tools available to those working on their behalf were to legislatively prohibit harmful activity against animals, to create a penalty system to change social mores surrounding acceptable treatment of animals, to separate the abuser from the abused for some period of time, which (hopefully) acts as a deterrent.Footnote ¹⁹

The principal focus of anticruelty laws is on violence against animals. There are also laws prohibiting neglect, abandonment, and other nondirect harmful activity, but those were, historically, rarely prosecuted. For large-scale hoarding cases in which dozens or even hundreds of animals suffer serious long-term neglect and abuse, the emphasis in some jurisdictions now tends to be more on accessing mental health support for the defendant, as opposed to jail time for those offenders who are amenable to treatment and reformation.Footnote ²⁰

In these earlier days (and continuing today, although not as prevalently), some laws exhibited nonsensical priorities. For example, prior to 1995, under Oregon law, it was a misdemeanor to torture a dog,Footnote ²¹ but a felony if you stole the dog and treated her better than her owner did.Footnote ²² Another example of the grossly misaligned priorities, again using Oregon as an example: it was a felony to record the symphony and sell the recording without permissionFootnote ²³ but a misdemeanor to sexually torture a cat in front of one’s child.Footnote ²⁴ There needed to be a serious rebalancing of these priorities. Hence, animal protection advocates worked to enact felony laws for the worst offenses, which were and are, even with enhanced penalties, significantly weaker than the laws that apply to the same action if done against a human.Footnote ²⁵

We soon learned that by engaging directly with prosecutors and investigators, we were able to educate the system about what the law says, why taking animal abuse seriously is important, and how to help them figure out appropriate approaches to managing individual cases. Sometimes that involved seeking incarceration, but oftentimes not. Out of this work was born the CJP, which was designed to provide police, animal control officers, and prosecutors with the support necessary to get the best possible outcomes for animals under existing law, which was often to remove the animal from her abuser, as well as to assist states with enacting the necessary statutory improvements to lead us to where we are today. Beyond its legislative work, the CJP embarked on a substantial training campaign, educating humane officers, animal control officers, police investigators, and prosecutors on the full spectrum of issues attendant to an animal cruelty case – from search warrant drafting to preconviction bonding/lien foreclosure proceedings designed to avoid revictimizing the animals.Footnote ²⁶ CJP did much of this work and in close collaboration the Association of Prosecuting Attorneys (APA).Footnote ²⁷ CJP established grant programs to ensure: (1) that impounding agencies had the money necessary to cover the costs of caring for seized animals; (2) that law enforcement had access to forensic resources otherwise inaccessible to them – including DNA analysis; and (3) that prosecutors could hire the necessary expert witnesses, enabling them to meet their burden of proof at trial. Additionally, CJP embarked on a mission to establish a presence in the appellate courts by filing amicus briefs in support of the state on issues attendant to the prosecution of these cases and in the state legislature by drafting and lobbying new laws.Footnote ²⁸

Finally, ALDF formed a partnership with a state district attorneys association and launched a pilot program to fund a fully sworn, dedicated, independent animal cruelty prosecutor who is available to all elected prosecutors in that state to litigate animal abuse cases that would not otherwise make it to court due to scarce resources.Footnote ²⁹

4.3 Animal Abuse Is Pervasive, and Enhancing Anticruelty Law Remains the Best Option to Protect Animals Absent a Change in Legal Status or Other Societal Evolutions

In American society, the harsh reality for animals is that cruelty and suffering are rampant, pervading every corner of American life, be it:

• In the family where the husband tries to maintain domination and control of his spouse by threatening, abusing, or killing the family pet. This was the case in People v. Kovacich,Footnote ³⁰ where a Placer County Sheriff was convicted of murdering his wife based on circumstantial evidence. It was proven that his wife feared her husband for a host of reasons, including the fact that he had previously kicked the family dog to death.

• At the pet shop (or online), where the inventory of designer animals was acquired from cruel, greed-fueled puppy millsFootnote ³¹ as exemplified by the “Puppy World Rescue” store in Tucson, Arizona, whose operator charged $2,000 and up as a so-called adoption fee for purebred “rescue puppies,” while failing to reveal the true source of the dogs. This defendant was accused of sourcing from puppy mills and faces enforcement action in Arizona for consumer fraud.Footnote ³² Another example comes from Mercer, Tennessee, where puppy mill operators were busted for the mass neglect of over 300 dogs.Footnote ³³

• In towns and neighborhoods throughout the United States, where hoarding of animals is uncovered.Footnote ³⁴

Beyond these three tip-of-the-iceberg examples, animal advocates must contend with institutionalized animal abuse, to wit, cruelty carried out by massive meat, dairy, and egg corporations, universities, pharmaceutical companies, colleges, and others, in pursuit of agriculture production, scientific/medical research, as well as hunting, trapping, rodeos, zoos, circuses, and other forms of recreation and entertainment. Institutionalized cruelty serves as stomach-turning examples of how most of our society still accepts a massive amount of animal suffering as either “necessary” or “justifiable” – necessary to keep the price of meat and milk low; justifiable to ensure that our shampoo doesn’t burn our eyes; necessary to save more human lives; and justifiable as forms of entertainment operating under the guise of self-reliance. These are huge sectors of our economy that are, as with food production and research, regulated and subsidized by the government.Footnote ³⁵ Consequently, to date, these latter categories of conduct are rarely, if ever, prosecuted, regardless of whether the criminal code contains an express exemption or not.

Further, in a consumer-based capitalistic market where “price is paramount,” market dynamics have yet to shift away from the production of animals as sources of protein, even though the system in which those animals live and die is inherently cruel and fails to provide even minimum standards of good care and treatment. One avenue to change that dynamic is the emergence of the vegan community, which currently comprises less than 3-percent of the US population.Footnote ³⁶ While this segment of American consumers is growing, it has yet to reach a size where it has any true political power in Congress or state legislatures – the power necessary to effectively reduce the actual number of animals suffering. To be fair, there are examples of instances where the vegan community has cause to claim a technical win. For example, California’s ban on the production and sale of foie gras produced in the state went into effect in 2012. However, the practical impact of this ban was seriously undermined by a recent ruling that California’s ban does not reach sales of foie gras originating from sources and sellers located outside of the state.Footnote ³⁷ Despite this discouraging reality, the sheer number of people, nonprofit, and for-profit organizations working on these systemic issues gives us cause to be hopeful, although that road remains very long. In the meantime, while animals continue to remain legal property, and other avenues to address harm done to animals remain elusive, anticruelty laws continue to offer one of the most effective ways to address individual instances of violence against animals.

4.4 Making Progress for Animal Victims

Some advocates working to reform the criminal justice system argue that the significant racism and bias in many sectors of the system (and in particular drug arrests) exist in the same way and with the same carceral outcomes within the anticruelty sphere. This overlap of concern may indeed be valid, but the current problem is that the argument is based on anecdotal evidence and (in a few rare instances) incomplete data from small sample populations. Even anticarceral critics acknowledge the lack of data upon which to draw conclusions about the anticruelty laws, let alone upon which to develop legislative priorities or policies that weaken criminal law protections for abused animals. Footnote ³⁸

4.5 Conclusion

While there is still much work to be done, the improvements to the substantive and procedural criminal code as applied to animal cruelty cases have resulted in significant advances for the benefit of animals and have not flooded our prisons and jails with abusers.

Enacting felony anticruelty laws properly elevates violent conduct inflicted upon voiceless victims to a level consistent with societal expectations while, at the same time, affording offenders independent review of the state’s charging decisions via grand jury or preliminary hearing – a safety stop that is simply not available in misdemeanor cases. Gathering data to address anecdotal claims of racial bias in the investigation and prosecution of animal cruelty cases will serve to elevate the conversation and provide the basis for sound policy reformation. Pursuing the advancement of the victim-status of animals subjected to abuse will only aid civil practitioners in overcoming standing issues and applying creative causes of action that will further advance the interests of animals in the legal system. Recognizing the Link for what it truly is – an observation of a correlation between differing classifications of violent conduct with some predictive value (as are a host of other factors, including age, social history, and education level) – is, and remains, a helpful tool for courts and probation officers in assessing the threat an offender represents to society and should help shape outcomes at sentencing and parole hearings.

Underlying the work of anyone concerned about animal abuse should be a clear-headed focus on what is in the animals’ best interests; ensuring that those interests are always considered in any case or proceeding; and reducing or eliminating animal abuse in the first instance. As animal advocates, we must never place the animals’ needs in a secondary position, no matter how worthy competing interests may be. Animal advocates are the animals’ last, and in many cases, only defense against invisibility within our established systems, so it is important to remember our primary obligation to protect animals and establish their legal rights while simultaneously supporting other movements to address the many layers of oppression. It is my hope that these important conversations on how best to serve all marginalized and harmed groups (including animals) will continue in a robust, yet respectful manner as we work together to make progress on these difficult issues.

Over the course of the past decade, critiques of the criminal system have proliferated in left and progressive circles.Footnote ¹ Rhetoric and structural critiques once relegated to corners of academia or radical activist circles have been incorporated into popular discourse. Indeed, the last year has seen a shift in the Overton window of criminal policy debates as calls to defund, dismantle, and abolish prisons, police, and other institutions of the prison-industrial complex have entered the mainstream.Footnote ² In short, being anti–mass incarceration has become a veritable requirement of establishing one’s left bona fides and being committed to some vision or version of social justice.Footnote ³

But what does it mean to be against mass incarceration, to support criminal justice reform, or even to call for abolition? The uncertainty of each of these positions complicates the current cultural understanding of the left (broadly conceived) as anticarceral. It’s easy to oppose criminalization and its abuses in the abstract, particularly when these institutions operate as stand-ins for white supremacy, heteropatriarchy, capital’s subjugation of labor, and so forth. It’s much harder when confronted with conduct that seems particularly egregious, harm that seems staggering, victims who appear extremely vulnerable, or defendants who appear extremely unsympathetic. In many areas we see a retrenchment. Or, more accurately, we see activists, advocates, and academics who are otherwise critical of prosecutorial politics turn to criminal law and the institutions of the carceral state as the solution or response to a pressing social problem.

In this chapter, I focus on that turn to criminal law and use the criminalization of animal abuse as a case study or window into a phenomenon that I describe as “carceral progressivism.”Footnote ⁴ My argument proceeds in two parts. First, I outline my theory of “carceral progressivism,” arguing that the link between anticarceral politics and (certain corners of) the left may be more tenuous than it initially appears. Next, I look to the case study of harm to nonhuman animals. Focusing specifically on the language of advocates and its resonance with expressive theories of punishment, I examine the ways in which the criminal turn in this context rests on a vision of the state as speaking for vulnerable victims and sending a message about society’s values and social inclusion.Footnote ⁵ I conclude by critiquing this progressive criminalization project and highlighting the limits of criminal law as a vehicle to advance left causes or interests.

5.1 Carceral Progressivism

Conventional explanations of mass incarceration and the rise of the carceral state tend to lay blame at the feet of the political right.Footnote ⁶ The explosion in prison and jail populations beginning in the 1970s and the dramatic racial disparities in that expansion are described as outgrowths of ideologies explicitly hostile to racial and distributive justice. In these accounts, the criminal system has operated as an engine of social control, and mass incarceration stands as a manifestation or fortification of the dominant social order.

Whether framed in terms of neoliberalism, white supremacy, or social conservatism, these accounts generally downplay the role of the political left (broadly conceived). Maybe we should view mass incarceration as a New Jim Crow – in this account, commentators frame the carceral state as an explicit extension of racist social control; whether exclusively anti-black, a descendant of chattel slavery, or also tied to the marginalization of Native, Latinx, and other populations, this account suggests that the logic of criminal institutions is one of white supremacy.Footnote ⁷ Alternatively, maybe we should understand mass incarceration as a construction or manifestation of neoliberal penality – in this account, punitive impulses and carceral solutions operate as necessary adjuncts to theories of individual responsibility and free markets; the “weak state” favored by neoliberalism actually rests on a belief in a state with strong carceral dimensions.Footnote ⁸ Or, maybe mass incarceration is a pathology of capitalism – in this account, criminal law operates as a means of managing surplus labor, and the violence of law enforcement serves a necessary function in preserving class hierarchy.Footnote ⁹

These explanations are compelling and fair as far as they go, particularly if taken together or understood as complementary frames for understanding hierarchy, marginalization, and state violence (rather than as clear, unassailable accounts of causation and intentionality).Footnote ¹⁰ But what about the left? What about progressives and leftists committed to issues of distributional justice?

One need not conclude that actors on the political left were the primary drivers of mass incarceration in order to recognize that punitive politics are and have been a bipartisan problem in the United States.Footnote ¹¹ From hate crimes to intimate partner violence and rape to white-collar crime, activists, academics, and lawmakers on the left have put aside anticarceral commitments when confronted with conduct they viewed as particularly objectionable. Legal scholar Aya Gruber has described this phenomenon as a “carve out” (i.e., the commentator has demonstrated a willingness to “carve out” one area of criminal law as acceptable, if not desirable), while I have described it as “carceral exceptionalism” (i.e., the commentator has demonstrated a willingness to treat one area of criminal law as exceptional and therefore worthy of support).Footnote ¹² Confronted with a particularly concerning or unforgivable class of conduct, the progressive move remains a return to the state as a solver of problems and a wielder of expressive moral force.

We might explain this turn as one of political expedience or the result of what Derrick Bell famously described as interest convergence.Footnote ¹³ According to Bell’s thesis, marginalized or less powerful groups are more likely to gain legal or political victories when their interests converge with a socially dominant or more powerful group.Footnote ¹⁴ Applying this reasoning to US criminal policy might help explain bipartisan support for a range of criminal statutes or punitive policies. That is, the realities of US political economy (particularly in an era of neoliberalism) mean that the most realistic regulatory option is criminal law.Footnote ¹⁵ To get legislation passed, activists on the left might need to find willing partners on the right or among centrists by appealing to common ground; more often than not, that common ground might be an appeal to law-and-order politics.Footnote ¹⁶ For example, progressive gun control proponents have struggled for decades to pass gun control legislation; however, many of their victories have come in the form of harshly punitive criminal statutes and policies, which have received the backing of conservative politicians and advocates concerned about “the wrong people” getting their hands on guns. Even when forging a liberal or progressive coalition was unsuccessful or insufficient, an appeal to conservative carceral politics allowed for the passage of certain punitive approaches to gun control.Footnote ¹⁷ That is, “governing through crime” and the use of criminal law as the dominant vehicle for addressing social problems might be the result of convergent interests of proregulation forces and procriminalization forces.Footnote ¹⁸

But, pragmatism or interest convergence is just one possible frame through which to view these procriminalization moves by those on the left. It is plausible and at times quite likely that the preference for criminal law as a solution to certain problems reflects not just an acceptance of a least-worst alternative;Footnote ¹⁹ rather, the selective embrace of criminal law on the part of academics and activists might reflect true enthusiasm for criminalization and the institutions of criminal punishment. That is, the calls for more prosecutions of “white-collar criminals,” demands for longer sentences of individuals convicted of sex crimes, or the push to pass more hate crime bills all might represent a belief that those defendants truly deserve the full force of state violence. And, relatedly, the failure to punish those defendants or criminalize their conduct might represent a failure by society not only to hold them accountable but to signal its resistance to taking the underlying issues (economic inequality, gender subordination, and bigotry) seriously.

In other words, the carceral turn might be explained (at least in part) by the same impulse that leads progressives to the state in other noncriminal contexts: a desire to see the state definitively address social problems. To the extent that the United States has representative democracy and a state apparatus, shouldn’t those institutions be there to protect the powerless? To the extent that criminal law and punishment represent (or purport to represent) public morality and public values, shouldn’t they reflect the right values?Footnote ²⁰ To the extent that the criminal system might serve a distributive function, shouldn’t it advance the distributive ends that we (whoever “we” may be) favor?Footnote ²¹

Those are questions that might – in both theoretical and practical terms – lead many to embrace criminal law as a suitable regulatory tool to address inequality, injustice, and a host of social problems. But, to be clear, this answer is an answer that suggests the evil of the carceral state is not the violence it does or the fundamental cruelty of cages, surveillance, and social control. Rather, it is one of scale, of choosing the deserving worst of the worst, and of the right distributive values that institutions of state violence should enhance.Footnote ²² It rests on a belief that the institutions of mass imprisonment and policing might be repurposed for good and might be a means to a more desirable end. Or, more pointedly, it suggests that incarceration and institutions of state violence are not incompatible with egalitarian ends; rather, they are important and at-times-necessary vehicles for achieving those ends.

5.2 Harm to Nonhuman Animals

Which brings us to nonhuman animals and the common preference for using criminal law to address abuse by humans. As legal scholar Justin Marceau recounts, criminal law took on a greater role in the animal rights advocate’s toolkit in the 1990s when “the movement hitched its wagon … to the star of mass criminalization.”Footnote ²³ By the midnineties, activists had “declared war on cruelty … by launching a nationwide campaign for stiffer laws [and] more vigorous prosecution of animal abusers, and [by] making available the tools to win convictions.”Footnote ²⁴ Indeed, a ubiquitous bumper sticker produced by the Animal Legal Defense Fund reads, “Abuse an Animal, Go to Jail!”Footnote ²⁵ And Marceau describes this slogan as “fairly representative as a motto for the entire disparate [animal protection] movement.”Footnote ²⁶

All fifty states criminalize animal abuse in some form or other.Footnote ²⁷ Over the past twenty years, at least twenty-one states have increased criminal penalties for individuals convicted of abusing nonhuman animals or have redefined conduct as felonious that previously constituted only a misdemeanor.Footnote ²⁸ Additionally, numerous states have passed new criminal statutes addressing animals left or tethered in hot cars or sexually abused.Footnote ²⁹ And, in November 2019, President Donald Trump signed into law the Preventing Animal Cruelty and Torture Act (“PACT Act”), a statute passed unanimously by Congress that made certain acts of animal abuse federal crimes punishable by up to seven years in prison.Footnote ³⁰ Put simply, criminal responses to animal abuse and neglect aren’t new, but they appear to have gained significant traction.

Without wading too deeply into the legal architecture or advocacy ecosystem of animal protection’s criminal turn,Footnote ³¹ I suggest that this turn reflects the sort of “carceral progressivism” described above. Importantly, many of the activists and advocates supporting criminal law and criminal legal institutions in this area have articulated positions generally hostile to the use of cages and inhumane punishment. Indeed, many of the specific targets of critique from the animal advocacy community are well-documented features of the US penal system, from denial of self-determination to confinement in cages to failure to provide necessary food and medical care. In short, the case of criminalizing mistreatment of animals represents the exact sort of carve-out or carceral exceptionalism that recurs in various corners of the US left (broadly defined). A general condemnation of society’s inhumane institutions somehow comes to excuse, or perhaps justify, the much-maligned institutions of mass incarceration and the carceral state. Or, as one commentator puts it in advocating for sweeping criminal punishment for defendants convicted of animal abuse, “attitudes about animal cruelty and neglect are changing, and society is moving slowly toward realizing that a truly civilized community must care for all of its vulnerable members, including the impoverished, the elderly, children, and domesticated animals.”Footnote ³² Put differently, caging abusers is the way that society signals its status as “truly civilized.”

The story of the animal protection movement’s embrace of criminal law has been told elsewhere,Footnote ³³ and it (or aspects of it) certainly might reflect interest convergence and a grudging acceptance of the criminal system as the appropriate regulatory framework. But here I suggest that it also reflects the sort of enthusiasm for or embrace of criminal legal institutions that characterizes carceral progressivism and the turn to criminal law to advance left, redistributive, or egalitarian ends elsewhere. We might identify a host of common strands, themes, or arguments in any of these progressive criminalization projects.Footnote ³⁴ In the context of carceral animal law, though, two familiar justifications or points of rhetorical emphasis stand out: (1) the presence of a particularly vulnerable class of victims; and (2) the claim that criminal law can send a message about society’s respect for that class of victims and condemnation of harm done to them. In this part, I take those two features in turn as a means of illustrating the troubling (and potentially unbounded) carceral logic that underpins the turn to criminal law as regulatory paradigm for advancing animal welfare.

5.3 Conclusion: Thinking beyond Cages and Carceral Logics

Marceau ends his book on the problems with a carceral approach to animal protection with a quotation from critical theorist Audre Lorde: “there is no such thing as a single issue struggle.”Footnote ⁴⁹ That is, cordoning off discussions of animal protection and liberation from conversations about mass incarceration would be a mistake. Lorde is also widely cited for her observation that “the master’s tools will never dismantle the master’s house.”Footnote ⁵⁰ This claim is reflected and embodied in a growing abolitionist discourse and praxis that treat carceral institutions as fundamentally at odds with egalitarian, redistributive projects. Cages, criminal punishment, surveillance, and social control are markers of an inegalitarian state or society. In other words, the institutions of the US criminal system are inherently regressive and cruel, regardless of the goals they are used to achieve. And, more pointedly, it is a mistake to think they ever could achieve those ends, because they will always entrench, legitimate, and reify the same troubling hierarchies, inequalities, and injustices.Footnote ⁵¹

Despite the appeal of that radical frame, despite the fact that it resonates with many who advocate for left and progressive causes, and despite the increasing prevalence of the rhetoric of abolition, I see the case study of animal victims as revealing a selective application of that principle.

The carceral state and the structures of mass incarceration have resulted from “a series of small decisions, made over time, by a disparate group of actors.”Footnote ⁵² And, the suggestion that one area of criminal policy might be distinguished easily from another area of criminal policy would be a mistake. Legal and policy arguments migrate; that is, once raised or introduced, procarceral rhetoric may take root in the cultural consciousness(es) and may be mobilized by different thinkers and advocates in very different realms.Footnote ⁵³ The turn to criminal law as acceptable in one “exceptional” context is not necessarily exceptional; instead, it risks normalizing and legitimating the same moves and institutions in other contexts. In this chapter, I haven’t offered a solution to wide scale mistreatment of nonhuman animals. Instead, I have stressed the ways in which a criminal turn here legitimates a host of deeply objectionable institutions and arguments. Protecting vulnerable victims and sending a message about the way that society should value the lives and dignity of nonhuman animals are worthwhile goals. That said, by turning to the institutions of the criminal system to achieve those goals, activists and academics risk falling into the trap of carceral progressivism and excusing state violence, its inequities, and its inhumanities in the name of the “right” politics, causes, or victims.