17.1 Introduction

An important aspect of reexamining carceral logics is the careful consideration of approaches for reforming the law and social practices surrounding confinement more generally. Toward that end, this chapter undertakes a comparative examination of cause lawyeringFootnote ¹ in the prisoners’ rights and animal protection movements. Drawing on the rich literature on cause lawyering and social movements, and on our backgrounds in American constitutional law, we discuss the similarities and differences in the possibilities for legal advocacy concerning the rights of incarcerated persons and the treatment of nonhuman animals. In the limited space available for our discussion, we aim primarily to offer a descriptive comparison rather than a normative prescription. We hope that, to the extent possible, viewing these movements through a comparative lens might lead to a collaboration and dialogue among public interest lawyers working in these respective spaces to share ideas about strategic approaches and potential similarities that might be employed to overcome common barriers to progress.Footnote ² Furthermore, by pursuing such a typological approach, we suggest that these same points of comparison might be useful in assessing similar connections between or among other social movements.

We begin the chapter with a brief discussion of the missions of each movement and observe that within each there are both long-term structural goals and narrower, concrete objectives. Though we could discuss a wide range of factors in comparing the movements, we narrow our focus to just three. First, we examine the important role that attorneys who work in these movements play in overcoming the invisibility of the populations they represent. Second, we explore ways in which lawyers advocating for these groups can facilitate moral suasion that could have a potentially more extensive real-world impact than might formal legal reforms. Third and lastly, we discuss the role of cause lawyering in addressing disenfranchisement of the relevant communities. Of course, these three categories are overlapping and coconstitutive, and by organizing the discussion in this way, we do not mean to suggest otherwise. For example, addressing the disenfranchisement problem may lead to more vocal advocacy and less invisibility. Similarly, great visibility can result in more public engagement in relevant moral debates. For the purposes of our discussion, however, we deem it valuable to address them as distinct points of comparison.

17.2 Movement Goals and Objectives and the General Role of Cause Lawyers

An important element in measuring the success of any social movement is identifying its precise goals. We acknowledge, of course, that movements are not monolithic and are constantly in flux, and that divisions, even sharp ones, commonly arise within any movement about its goals. For our purposes, we identify what might be considered the aspirational or long-term goals of each movement and then home in on each movement’s more discrete objectives (though by discrete, we mean separable from the aspirational goals; many of the discrete objectives are themselves quite substantial). But we also note that within each movement, given limited resources, there may well be a divide between those who wish to seek broader, structural reforms and those who prioritize improving the conditions and quality of life for each individual involved.Footnote ³ Moreover, as in other social movements, there will be disputes about incrementalism versus more immediate, radical transformation of the law. These goals can be debated at the margins, but we view them as creating a helpful organizing frame for the discussion.

A starting point is considering how to characterize each movement and identifying what might be described as aspirational or ultimate goals for each of them. As in other realms of public interest law, it is tempting to center discussions about a movement around major victories in the judicial or legislative arenas. Indeed, in the early years of the prisoners’ rights movement, the nation witnessed pathbreaking Supreme Court decisions solidifying previously unrecognized rights for incarcerated persons, including basic due process rights in disciplinary proceedings,Footnote ⁴ the right that prison living conditions not be so severe as to violate the Eighth Amendment’s prohibition of “cruel and unusual punishment,”Footnote ⁵ and prisoners’ entitlement to “the minimal civilized measure of life’s necessities,” including food, clothing, and medical care,Footnote ⁶ to name a few. A number of later decisions, however, would make it much more difficult for incarcerated persons to successfully press these claims. For example, in Wilson v. Seiter, the Court erected a deliberate indifference standard, substantially reducing the likelihood of a prisoner’s success on a claim challenging “inhumane conditions of confinement.”Footnote ⁷ And in Sandin v. Conner, the Court cut back on procedural due process protections for prison disciplinary proceedings, finding that they apply only when the resulting sanction imposes an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”Footnote ⁸

Focusing on bold judicial proclamations risks essentializing a social movement around law only, which might result in the neglect or marginalization of other critical political and social factors. Scholars whose work focuses on the prisoners’ rights movement thus approach the definitional question in a more nuanced manner. Marie Gottschalk defined the prisoners’ rights movement as “the broader effort by a variety of groups and organizations from roughly the 1950s to the early 1980s to redefine the moral, political, economic, and legal status of defendants and offenders in democratic societies through a range of activities, including lawsuits, legislation, demonstrations, strikes, riots, and calls for revolution.”Footnote ⁹ Similarly, an older characterization of the prisoners’ rights movement that still resonates today sees it as “a broadscale effort to redefine the status (moral, political, economic, as well as legal) of prisoners in a democratic society.”Footnote ¹⁰

But toward what end? In the context of prison reform, the ultimate aspirational goal for many may be prison abolition, though that phrase itself is fraught with contested and diverse meanings.Footnote ¹¹ To some, abolition is an umbrella term for broad, structural reform that includes not only eradication of mass incarceration, but also the transition toward alternatives that address more embedded social problems, including poverty, drug dependency, and racism, that lead to crime. Such reform is also integrally related to reexamining other crucial aspects of the criminal justice system, most notably policing. Importantly, abolition is a perspective that has thus far gained more traction in academic circles than it has on the ground in social-movement lawyering.Footnote ¹² For example, the ACLU’s National Prison Project describes its work in this, more limited, way: “Through litigation, advocacy, and public education, we work to ensure that conditions of confinement are consistent with health, safety, and human dignity, and that prisoners retain all rights of free persons that are not inconsistent with incarceration,”Footnote ¹³ which implicitly does not embrace abolition insofar as it assumes at least some imprisonment will be ongoing in our society. That does not diminish the centrality of prison abolition, however, because intellectual and political movements that broadly reframe social goals, even in radical (and perhaps impractical) ways, can strongly influence how public interest lawyers view their tactical approaches.

In terms of relatively more discrete reform efforts, those in the prisoners’ rights movement have worked tirelessly to end capital punishment; to abolish or severely limit solitary confinement; to promote basic rights of dignity, safety, and security for prisoners; to seek material improvement of conditions for those who remain incarcerated, by, for example, eliminating overcrowding and improving medical and mental health care; ending forced labor of convicted persons; promoting the free exercise of religion, especially among incarcerated persons who are Muslim; ensuring rights of access to reading materials, law libraries, and the courts; and, as has been much in the news of late, restoring voting rights to persons who have completed their terms of incarceration. Of course, cases can raise important constitutional issues on behalf of individual prisoners as well.

Like prison abolition, the big-picture concept of animal protection embraces a variety of positions that are not always in harmony.Footnote ¹⁴ The emergence of an animal protection movement is a story built around two separate campaigns, one to change law and society to promote substantial improvements in animal welfare and another, bolder one that seeks to expand the legal recognition of rights for animals and to end all human exploitation of animals.Footnote ¹⁵ At first glance, these goals do not appear to be mutually exclusive, but they do reflect serious divisions over the ultimate end goals of the movement. Animal welfare advocates seek greater protection for animals from inhumane or cruel treatment, enforcement of laws against animal cruelty, and limits on, or the end of, the exploitation of animals across all contexts, but do not assert that the law should recognize nonhuman animals as having independent rights. It could be argued that animal welfare proponents are concerned less with global or structural change, and instead care more about incremental reform and stronger enforcement of existing laws protecting animals. Animal rights proponents, by contrast, pursue the more ambitious, aspirational objective of legal recognition of rights for nonhuman animals, equivalent or functionally comparable to those of humans, though there are disagreements within the movement about the scope of that recognition. As with prison abolition, the more expansive vision of animal rights has led to a greater degree of philosophical and academic discourse than it has lawyering on the ground, at least to date.Footnote ¹⁶

In the near term, the goals of animal welfare and animal rights advocates often converge. Well shy of, along an aspirational spectrum, something approximating a rights-based approach to animal welfare, one can observe common goals in enhancing legal protection and enforcement of laws against animal cruelty, defined broadly to include the exploitation and mistreatment of animals in the industrial agriculture and entertainment industries. Animal welfare proponents seek the enforcement and enactment of stronger legal protection for animals from cruel treatment, tougher regulation of businesses that use animals for commercial gain, such as the agriculture, entertainment, cosmetics, and fashion industries, and action to address cruelty in the commercial breeding of pets.Footnote ¹⁷ But even groups more closely associated with rights-recognition describe their objectives in ways that do not differ significantly from those of animal welfare groups. For example, while People for the Ethical Treatment of Animals (PETA) proclaims that “[a]nimals are not ours to experiment on, eat, wear, use for entertainment, or abuse in any other way,”Footnote ¹⁸ which connotes a rights orientation, it focuses much of its work on discrete projects designed to reduce or minimize animal suffering. Similarly, the Animal Legal Defense Fund states that its mission is to “protect the lives and advance the interests of animals through the legal system.”Footnote ¹⁹ Yet ALDF seeks to accomplish this mission principally “by filing high-impact lawsuits to protect animals from harm, providing free legal assistance and training to prosecutors to assure that animal abusers are held accountable for their crimes, supporting tough animal protection legislation and fighting legislation harmful to animals, and providing resources and opportunities to law students and professionals to advance the emerging field of animal law.”Footnote ²⁰

One thing that distinguishes the two strands of animal advocacy is that animal-rights groups also engage in strategies that will directly or indirectly lead to the recognition of greater rights for animals. For example, those who focus on animal rights have promoted efforts to establish legal standing for animals to pursue their rights in the courts. In some cases, animal rights organizations have sought to stand in as the legal representative of specific animals as a “next friend” or legal surrogate pursuant to the Federal Rules of Civil Procedure,Footnote ²¹ even though several courts have rejected those arguments because the rules refer to representing an incompetent “person.”Footnote ²² Interestingly and perhaps importantly, a couple of decisions from the US Court of Appeals for the Ninth Circuit have stated that animals can have standing, even without a next friend, under Article III of the US Constitution.Footnote ²³ In both of those cases, however, the court went on to hold that the animals could not establish standing under the relevant federal statutes they invoked as the substantive bases for their lawsuits. Surely, the right of an animal to sue in federal court could be acknowledged as one step toward legal rights recognition.

Another noteworthy observation about divisions within each movement is how much they parallel each other. In a sense, in both the prisoners’ rights and animal protection movements, one might see the differences in vision as “no cages” versus “bigger and better cages.” Prison abolitionists and animal rights advocates argue for the end to incarceration and all human exploitation of animals, respectively. Prison conditions advocates and animal welfare proponents argue for reforms that improve the lives of the caged, but do not liberate them. These parallels are not only interesting, but also may inform how reform advocates set their priorities. To some extent, some abolitionists may look at the “bigger and better cages” group as a counterproductive force, believing that small-bore reforms in some way perpetuate the status quo or create the illusion that such reforms have addressed the main problems, thus perhaps reducing the urgency of more ambitious abolitionist goals.Footnote ²⁴ In contrast, the bigger-and-better-cages proponents may charge the abolitionists as unrealistic idealists whose work might ignore the value of incremental progress.Footnote ²⁵ This may create fissures within the movements that may be inescapable. An introspective understanding of these dynamics may be valuable in assessing the movements’ strategic futures.

Before moving on to the rest of the discussion, we make two observations that are widely recognized in the cause-lawyering literature. First, we acknowledge that litigation, which we identify and analyze as one strategic option for lawyers in these two movements, has been the subject of widespread criticism as a social movement tool. In short, such critics

For purposes of our discussion, we assume these critiques to have some validity, even as we seek to identify a broader understanding about the contributions attorneys can make to advance social movements.

Second, we recognize the concern that cause lawyers in these fields might not be fully sensitive to the power imbalance between clients or constituents, on the one hand, and their attorneys, on the other.

While these challenges are ever-present in most areas of public interest law, they may be particularly acute in the context of prisoners and animals, making both groups subject to replication of the disempowerment that exists because of the laws, structures, and carceral logics that shape their treatment. Public interest lawyers addressing the three areas discussed below must be sensitive to these power dynamics in working on behalf of their clients and the causes they represent.

17.3 Countering Invisibility

In any given generation, there are multiple worthy social causes vying for public attention. Advocates for such causes compete for scarce resources, including charitable donations, legal and policy advocates, and level of public concern. For some causes, even ones that present existential threats such as climate change, constituents are diffused and unorganized, which makes for difficulties in gaining attention and also creates collective action problems. For example, in the 1960s and 1970s this was the case for environmental and consumer protection interests.Footnote ²⁸

In other contexts, the challenges to commanding public attention might be driven primarily by the fact that constituencies are not as readily visible; for many groups, it is “out of sight, out of mind.” There are numerous reasons why a particular group may be invisible to the broad spectrum of the public eye. First, all invisibility problems may be partly a function of lack of power. This factor is one that likely affects most communities seeking greater legal protection in our society. Second, invisibility may be the product of a subjective sense of public discomfort predicated on biases and stereotypes. Thus, the general public may look at members of powerless groups, such as persons experiencing homelessness, people with disabilities, and transgendered persons, without really seeing them in a way that acknowledges their humanity and dignity. These causes of invisibility likely affect both incarcerated persons and many animals. But a third cause of group invisibility is as elementary as actual physical segregation. Prisoners and many categories of animals, including farmed animals and animals used for experimentation and testing, are literally behind walls.Footnote ²⁹ As Justice Kennedy once observed in a speech to the American Bar Association, “When the door is locked against the prisoner, we do not think about what is behind it.”Footnote ³⁰ However, he went on, “As a profession, and as a people, we should know what happens after the prisoner is taken away.” Indeed, this is one of the central challenges in dismantling carceral logics. Here invisibility is not just a metaphor, but a product of social and physical isolation through incarceration.

To invoke a comparison from constitutional doctrine, there is a strong relationship between invisibility and insularity. In the widely referenced footnote 4 in United States v. Carolene Products Company,Footnote ³¹ the Supreme Court observed that heightened judicial scrutiny might be necessary to protect “discrete and insular minorities” from the majority-driven political process. The concept of insularity connotes a separateness from the general public that results in unfamiliarity with such groups, causing voters and lawmakers to be, at best, insensitive to, and at worst, actively prejudiced toward, members of such groups.Footnote ³² And insularity surely begets invisibility.

A challenge, then, for social movement lawyers in these fields is to make their clients and their clients’ experiences visible to the world. Enhanced transparency can lead to public recognition of the plights of prisoners and animals; public recognition, in turn, can lead to increased understanding, attitudinal shifts, and ultimately law reform. Being visible means garnering public attention, sympathy, and support.

Sometimes visibility arises spontaneously on account of discrete, high-profile events or series of events. In the summer of 2020, for instance, the nation watched in shock as cell phone videos of horrifying police violence toward and killing of Black men and women went viral, calling focused public attention to the Black Lives Matter movement. These victims included Ahmaud Arbery, Breonna Taylor, George Floyd, Rayshard Brooks, and Jacob Blake. And those were just the violent incidents that became public. At the Democratic National Convention, George Floyd’s brother called on Americans not only to mourn those whose names were already widely known, but also those who were unknown “‘because their murders didn’t go viral.’”Footnote ³³ But this attention can be fleeting. Despite what seems like an endless string of tragic school shootings, the public’s interest in comprehensive gun regulation seems to quickly wane over time.Footnote ³⁴ And 2020 is hardly the first time the country’s focus has been drawn to what seem like obvious incidents of unjustified police shootings of young Black men. The attention generated by the numerous other police killings of Black people a few years ago and the ensuing protests were, sadly, short-lived.Footnote ³⁵

But more often than not, making clients and their causes visible requires a conscious, affirmative, and sustained effort. Cause lawyers may promote their clients’ visibility through a combination of advocacy tactics such as public education and media campaigns.Footnote ³⁶ Sometimes litigation can serve not only the primary objective of vindicating and enforcing legal rights, but also as a mechanism to educate the broader public about the underlying conditions that caused a particular conflict. Indeed, even when the litigation is unsuccessful, it can promote learning and call attention to an otherwise overlooked social problem.Footnote ³⁷

In the early stages of the prisoners’ rights movement, litigation was often used as a tool not only to reveal problems with the treatment of prisoners to the courts, but also to establish sustained oversight of prison systems by federal judges.Footnote ³⁸ This had an important transparency dimension because it contemplated an ongoing role for the judges to be informed about prisons’ compliance with injunctive orders or consent decrees. Not surprisingly, over time these orders were met with increasing resistance by state officials and judicial conservatives, who argued that this exceeded the proper role of the federal judiciary, which was accused of micromanaging day-to-day prison operations.Footnote ³⁹ Eventually, those criticisms took hold, and the courts mostly abandoned such efforts to oversee prisons. Moreover, federal legislation such as the Prison Litigation Reform Act made it much harder for prisoners to file civil rights claims by limiting the types of damages that could be recovered and capping attorneys’ fees.Footnote ⁴⁰

Other transparency mechanisms are limited as well. As one commentator has noted:

Indeed, the Supreme Court has directly rejected the idea that the media should have a special First Amendment right to gain access to prisons in the interest of transparency.Footnote ⁴² But perhaps prisoners’ rights advocates might pursue federal legislation that requires or incentivizes correctional institutions to report data in important categories, such as statistics on medical care, violence in prisons, and the administration of prison disciplinary policies as one mechanism to increase transparency.Footnote ⁴³

Addressing invisibility has similarly been an emphasis of some aspects of the animal protection movement. As McCann and Silverstein observed, there are constraints on traditional litigation tools in the animal rights context that do not limit other movements.Footnote ⁴⁴ This helps explain why cause lawyers in the movement often focus on more conventional rights claims that will indirectly yet still importantly promote the interests of animals. “For animal rights advocacy, this mean[s] creatively using resources like free speech laws and open meetings laws to heighten awareness about hunting, dissection, and animal experimentation.”Footnote ⁴⁵

Another example of this is in sustained efforts to promote transparency about animals farmed for food production. These animals are exempt from the Animal Welfare Act’s protections,Footnote ⁴⁶ and the conditions in which they live and are killed are decidedly nonpublic. To address this lack of transparency, undercover investigators in several states have gained access to slaughterhouses and other animal facilities and made secret video recordings of severe mistreatment of farmed animals that were then made widely available over the internet.Footnote ⁴⁷ Dismayed at the negative publicity, the industry lobbied state legislatures to bar such investigations, which many states have done by making it a crime to misrepresent one’s identity to gain access to an animal agriculture facility or to take photographs or make a video recording without the owner’s consent.Footnote ⁴⁸ These so-called “Ag-Gag” laws were soon enacted in a number of states where animal agriculture is a prominent part of the local economy. ALDF, PETA, and other animal rights groups have mounted a nationwide litigation campaign to challenge these laws as violating their First Amendment free speech rights. While the campaign is ongoing, many of these suits have been successful, with federal courts in several jurisdictions declaring the laws to be invalid.Footnote ⁴⁹ The central point of Ag-Gag challenges it that transparency is an essential component of animal law reform. If a larger percentage of the public was aware of how the mass production of animals for food creates an environment of cruelty and raises substantial concerns about food safety, efforts to seek legislative reforms would be much more likely to gain traction. Moreover, the information disclosed through these investigations may sway public opinion in ways that will enhance the possibility of greater recognition of animals’ rights.

Notably, some progress on the public-opinion front has already been made in recent years. A 2015 Gallup Poll found increasing support for animal rights in the United states, with 32 percent of respondents believing that animals should have the same rights to be free from harm and exploitation as humans, and 62 percent believing that animals deserve “some” protection from such harm but that animals may still be used for the benefit of humans.Footnote ⁵⁰ These figures both represented a notable increase in affirmative responses to the same questions asked in 2008 and 2003.Footnote ⁵¹

Conversations across the prisoners’ rights and animal protection movements might promote the sharing of meaningful and thoughtful suggestions for law reform and tactical approaches to overcoming the invisibility of their constituencies. Moreover, recognition of the parallels between the two movements could lead to conscious strategic collaborations through reform efforts – for example, a joint campaign to promote greater transparency for all those who are caged. This could also lead to public education efforts that might lead to a broader understanding of the harms that can result when misconduct occurs but is obscured from the public eye. Similarly, lawyers from one movement might submit amicus briefs in support of court cases brought by advocates in the other movement, calling judicial attention to the parallels between concerns about prisoner and animal welfare. These types of partnerships might also reduce the incidence of the potentially problematic public rhetoric used by movement leaders that we discuss below.

17.4 Facilitating Moral Suasion

Historically, moral suasion has been one of many tactical approaches social movements have employed to achieve their objectives, although the degree of its effectiveness has been debated. A major segment of the slavery abolition movement rested on moral suasion, whether on the legislative or judicial battlefronts.Footnote ⁵² Moral leadership, from Gandhi to the Reverend Martin Luther King, Jr., has often been coupled with social movements. Moral commitment to causes can also be one of the driving forces of public interest lawyers working within these movements.Footnote ⁵³ What is distinct about moral suasion as a social reform tactic is that there is nothing uniquely connecting lawyering to moral claims. Indeed, the standard conception of the role of the lawyer suggests that an attorney’s moral views are not to be confused with those of her clients.Footnote ⁵⁴ As with other social movements, both the prisoners’ rights and animal protection movements engage in moral suasion to help transform public opinion, and ultimately influence public policy, another feature that connects these movements.

Although moral argumentation is not a skill unique to lawyering, it frequently occurs in the context of advocacy in the courtroom and before legislative bodies, two arenas where more traditional legal arguments are commonly employed and where lawyers tend to be heavily utilized. Litigation is not merely a tactic to win rights in specific disputes, but can also be integrated into a broader strategic approach that is designed to facilitate public education, which correlates strongly with movement building.Footnote ⁵⁵

Within the context of the prisoners’ rights movement, moral claims have probably been most commonly employed in arguments against capital punishment.Footnote ⁵⁶ Moreover, the contemporary debates over mass incarceration are frequently based on moral claims.Footnote ⁵⁷ But more broadly, beyond dealing with these more discrete issues, prisoners’ rights advocates can seek to employ moral rhetoric more generally to reexamine basic theories of punishment and the carceral state. This is all the more important because of the connection between social attitudes toward prisoners and incarceration rates. Studies of the effects of the expanding movement against mass incarceration have captured some elements of public sympathy in moving public opinion. One study shows a direct correlation between public views on punitiveness toward convicted persons and incarceration rates.Footnote ⁵⁸ But public opinion seems to be shifting to a more sympathetic view of prisoners and in favor of major criminal justice reform efforts. And though these results cannot be directly linked to moral arguments, a 2017 poll by the ACLU’s Campaign for Smart Justice found that 91 percent of Americans support criminal justice reform.Footnote ⁵⁹

However, there may be important limits on the ability of advocates to influence attitudes about prisoners through moral arguments because views about mass incarceration may differ significantly with regard to prisoners who have been convicted only of minor drug crimes than concerning persons who have committed violent offenses. The reform efforts that have been successful thus far have focused on nonviolent offenders.Footnote ⁶⁰ Meaningful efforts to end mass incarceration must reach beyond those offenders, however, as 80 percent of incarcerated persons are imprisoned on non-drug-related offenses.Footnote ⁶¹ In some sense, then, moral arguments could end up being counterproductive if people feel righteous only about deincarcerating a small segment of the prison population.

Although these may be framed publicly as moral debates, they can also be mapped onto legal ones. Indeed, the Eighth Amendment’s very text invites moral debate through its focus on what counts as unconstitutionally “cruel and unusual.”Footnote ⁶² Moral values even make it into the Supreme Court’s opinions from time to time. In Roper v. Simmons, for example, in the course of declaring that the application of the death penalty to persons who were minors at the time of their crimes is unconstitutional, the Court observed that “[f]rom a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.”Footnote ⁶³

Moral claims for animal rights might meet somewhat less resistance, perhaps because at least some animals may be inherently more sympathetic to a broader spectrum of the public than are people convicted of capital crimes. In evaluating moral claims here, we must tread carefully, however, as many in the animal protection movement have pointed out that while people may be sympathetic toward their own pets, they are simultaneously not as likely to feel the same way about farmed animals, animals used for products other than food, and animals exploited for human entertainment.Footnote ⁶⁴ Indeed, studies have demonstrated that people engage in motivated cognition that causes them to block out relevant information, such as a farmed animal’s intelligence, to avoid the moral dilemma that they would face with such a recognition.Footnote ⁶⁵ Just as moral claims in the prison reform context may reach a limit that confines the scope of meaningful reforms, these distinctions between domesticated pets and farmed animals may act as a ceiling on more ambitious animal rights claims. Thus, moral claims for animals based in public sentiment may meet more resistance than one might first imagine. If this is the case, then movement leaders must reflect on how to use moral suasion in the face of this type of barrier. Further, the parallels with the limits of moral claims in the mass incarceration context might be worth discussing strategically across movements.

The founding of the animal rights movement has been strongly linked to the writings of moral philosophers such as Tom ReganFootnote ⁶⁶ and Peter Singer.Footnote ⁶⁷ In the advocacy movement, moral arguments are presented on a range of issues to oppose keeping animals in captivity for human entertainment, wearing fur, eating meat, using animal products, and medical experimentation on animals, to name just a few.Footnote ⁶⁸ Moreover, animal rights lawyers use moral claims as a building block for legal rights. As Helena Silverstein has noted:

However, although public sympathy toward animals is strong, the same cannot be said for their human advocates.Footnote ⁷⁰ Opponents of animal rights activists have attempted to derail the movement by branding all who advocate of animal rights as “terrorists.”Footnote ⁷¹

Ironically, however, the prisoners’ rights and animal protection movements sometimes unwittingly engage in moral arguments that are at cross-purposes to the other. One of the largest and most prominent animal rights organizations, the Animal Legal Defense Fund, is frequently associated with the slogan “All Our Clients Are Innocent.”Footnote ⁷² This offers tremendous appeal from a moral standpoint because nonhuman animals lack agency, so all human exploitation of animals is thrust upon them. Another public relations campaign involves raising the consciousness of pet owners to recognize the moral equivalency of mistreatment of pets with the abominable treatment of animals who are hunted, used for human entertainment, and mass-produced for food and products through our commercial agricultural industry.Footnote ⁷³ As morally persuasive as these approaches to public education can be, they may inadvertently promote a form of “othering,” in that the converse of the ALDF slogan is that perhaps we needn’t care as much about humans who are not “innocent” (using that in the legal as well as colloquial sense).

And at the same time, the morality switch can be flipped in the prisoners’ rights movement, which frequently employs moral rhetoric to raise issues with prison conditions by complaining that the basic rights of incarcerated persons are illustrated by the fact that they are frequently treated “like animals.”Footnote ⁷⁴ Indeed, sometimes prisoners point out that they are being treated worse than animals. In one reported instance, a man incarcerated at a California prison complained about conditions in overcrowded cells with temperatures of 114 degrees and little ventilation, while pointing out that the prison’s dog kennels were air conditioned.Footnote ⁷⁵ In another complaint from a Texas prison that reportedly registered 130-degree temperatures and where fourteen prisoners had died from the heat in recent years, it was noted that the prison has recently constructed a $750,000 climate-controlled, swine-production facility on site to produce food for the prisoners.

What is problematic with these characterizations is that, like the claim that all animals are innocent, it pits groups that are oppressed by carceral logics against each other, creating a hierarchy of moral worthiness. Saying prisoners shouldn’t be treated like animals sends an implicit message to the public that not only should humans not be treated like animals, but also that animals are lesser beings and that it may even be acceptable to treat animals “like animals.” And saying that all animals are innocent implies that people who are not innocent may deserve punishment or incarceration. This conflicting moral discourse could ultimately lead to undermining both claims, thereby diluting, if not erasing, the moral message. Indeed, it is potentially troubling messages like that this that can perpetuate the carceral logics that plague our society and undermine important social movements. Thus, conversing across movements and engaging in introspection about moral claims can be a productive way of getting us outside of these types of rhetorical traps.

We note one other area in which there are tensions between these two movements relating to moral suasion claims. Some animal protection groups have included as part of their mission the stricter enforcement of criminal sanctions against persons who engage in unlawful acts of animal cruelty.Footnote ⁷⁶ That is, such advocates have pursued a carceral strategy against humans to advance the welfare, safety, and dignity of nonhuman animals. To some degree, such campaigns reflect moral claims on behalf of animals while simultaneously making moral arguments for punitive sanctions against those who abuse them. While we point to this as another example where the prisoners’ rights and animal protection movements could be at odds, others have argued more strenuously that not only are such measures ineffective, but also are counterproductive to the larger cause of animal rights. As Professor Justin Marceau has observed, “the logic of increased attention to crimes and penalties for individual animal abusers actually reinforces hierarchies and perpetuates larger-scale animal abuse and exploitation caused by corporations.”Footnote ⁷⁷ While we acknowledge this patent tension, we see this as yet another area where cross-movement collaboration and discourse could lead to revisitation of such reflexive carceral approaches to animal cruelty.

17.5 Overcoming Disenfranchisement

A major element of social justice is redressing imbalances in political power. Frequently, public interest lawyers focus their work on reviving power for their clients where it has been lost and enabling power where it never existed. This is consistent with the ultimate objective of client empowerment, which decentralizes power to individuals to advocate for themselves. Ironically, client disenfranchisement frequently steers advocates toward the courts, which are somewhat independent of the political system and are, by some measures, already designed to account for protection of those without political power.Footnote ⁷⁸ However, for a variety of reasons, advocates sometimes overlook the limits of litigation as a tool for social change.Footnote ⁷⁹

With regard to incarcerated or formerly incarcerated persons, disenfranchisement is both formal and sweeping. Many states’ laws deprive people who have been convicted of a felony of their right to vote, not only while they are incarcerated but even after they have completed the terms of their sentence.Footnote ⁸⁰ In some states, even those convicted of misdemeanors may lose their voting rights.Footnote ⁸¹ Although some of those states have established mechanisms to allow people to regain their voting rights, such systems have been widely criticized for long delays, for cumbersome or arbitrary administrative processes, and extremely low success rates.Footnote ⁸²

No fair discussion of prisoners’ rights can ignore the deep connection between incarceration and race. Indeed, the prisoners’ rights movement began as an outgrowth of the activism of Black Muslims, who organized incarcerated persons and asserted their rights through activism and litigation.Footnote ⁸³ In the US prison system as of 2018, Black men were incarcerated at a rate 5.8 times that of white males.Footnote ⁸⁴ Not surprisingly, then, the disenfranchisement of formerly incarcerated persons has had and continues to have a substantially disproportionate impact on people of color.Footnote ⁸⁵

But support for reenfranchisement of formerly incarcerated persons seems to be increasing. According to a 2018 Huff Post/YouGov poll, 63 percent of Americans support the restoration of voting rights for persons incarcerated for felony convictions after they have completed their sentences.Footnote ⁸⁶ In that same year, nearly 65 percent of Florida voters approved a ballot measure to amend the state constitution to restore voting rights to most persons convicted of a felony after completion of their sentences.Footnote ⁸⁷ Some 85,000 persons filed formal requests to have their voting rights restored pursuant to the amendment. The Florida legislature soon pushed back, enacting a statute that interpreted the amendment’s phrase “completion of all terms of sentence” to include not only a prison sentence and terms of parole, but also the payment of any amount of restitution, fines, and fees ordered by a court to be paid as part of a sentence.Footnote ⁸⁸ Those provisions were immediately challenged in federal court. As of now, the law has been upheld by an en banc decision of the Eleventh Circuit Court of Appeals, meaning that a substantial number of otherwise qualified persons were probably unable to vote in the 2020 election.Footnote ⁸⁹

Through executive action, New York and Iowa have taken steps to narrow the impact of disenfranchisement. Under New York law, the Democratic governor issued an executive order in 2018 to restore voting rights to persons who had completed their prisons sentences, but were still on parole.Footnote ⁹⁰ And in Iowa, which previously had permanently barred voting for anyone convicted of an “infamous crime,”Footnote ⁹¹ the Republican governor issued an executive order restoring voting rights for most convicted persons who have completed their sentence, probation, and parole.Footnote ⁹² Unlike Florida, Iowa does not require such persons to pay any restitution to their victims before regaining the right to vote.Footnote ⁹³

Turning to the animal movement, nonhuman animals, of course, have no recognized legal rights, much less the right to vote in elections, and it is difficult, of course, to understand how it would work if they did.Footnote ⁹⁴ But we might think of disenfranchisement for these purposes not only as the denial of formal voting rights, but also as the exclusion from all forms of participation and representation in the political system. And political advocacy for the interests of animals is surely imaginable, even as it must necessarily be undertaken through surrogates, such as animal rights groups that engage in lobbying and policy reform, or official ombudspersons. But query whether the current framework for permitting or encouraging such advocacy is sufficient. As one commentator has noted, animals are a politically powerless constituency, one of the factors the Supreme Court considers in evaluating whether heightened judicial scrutiny should apply to laws that discriminatorily burden such groups under the Equal Protection Clause. “The political powerlessness of animals [is] more than evident. . . . [T]hey are completely disenfranchised due to linguistic barriers. Some may argue that they are derivatively represented by animal rights proponents, but this seems a lackluster form of democratic participation without real bite.”Footnote ⁹⁵ And yet, even in countries that have legally recognized animals as sentient beings, such status does not confer full political rights.Footnote ⁹⁶

Cause lawyers in the prisoners’ rights and animal protection movements might consider mechanisms of reenfranchisement as a point of comparison across movements. Some states, for example, have ombudspersons for prisoners to serve as a representative voice to advocate for their interests. Similarly, some countries have established ombudspersons to represent the interests of animals.Footnote ⁹⁷ The effectiveness of such measures depends to a large degree on the scope of ombudspersons’ powers and the degree to which they may participate in different types of government proceedings, from judicial to administrative to political. Movements could identify what features are essential to an effective ombudsperson and what types of limitations hamper their ability to adequately assert the interests of the powerless.

Another important point of comparison could be the relative merits of different advocacy tactics to combat disenfranchisement. As in other areas of public interest law, there are serious questions about which tactical approaches to advocacy are most effective, and there is ample room for a full investigation of the limits of such tactics. A conventional approach to social movements over the past half century might at least first look to rights litigation in the federal courts, which earlier movements have counted on to achieve progress for politically powerless constituencies. Setting aside for a moment the substantive question about the source and scope of rights for incarcerated persons and nonhuman animals, the idea of a litigation-centric, rights-based approach to protecting these groups fits within what we might characterize as traditional or “old school” models of social reform. Turning again to Carolene Products,Footnote ⁹⁸ the Supreme Court observed in its famous footnote 4 that courts might have to be more vigilant about safeguarding the rights of underrepresented minorities. The Court recognized that it did not need to decide “whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of . . . political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”Footnote ⁹⁹ But this footnote has been understood by subsequent cases to imply just that point – that groups that are politically unpopular, disenfranchised, or both may be structurally unable to redress their grievances through ordinary political processes, and therefore are more deserving of more aggressive judicial interventions.

Both incarcerated persons and nonhuman animals can certainly be described as discrete and insular minorities who are unlikely to be able to achieve meaningful policy change through ordinary political processes. In the case of prisoners, the “special condition” that impedes their ability to pursue ordinary political processes is, as we have seen, formal disenfranchisement and resistance to reinstatement of voting rights. (The same is true for noncitizens, and one arguable justification for treating both groups as outsiders is that their status is, for the most part at least, not thought to be based on immutable characteristics. But whether justified or not, the exclusion from political participation is stark.) For animals, there has never, of course, been any formal political power, so they are situated similarly to other groups that have always been excluded from the political process. For these reasons, both groups might seek to employ impact litigation to achieve meaningful law reform, and in the case of animals, there is no possible rejoinder of them having been guilty of misconduct that might be true for some convicted felons or loyalty to another government that might be true for some noncitizens. On the other hand, as many commentators have observed, reliance on litigation as a long-term tactic for achieving social reform has perhaps not been as successful as we might imagine. Pathbreaking cases such as Brown v. Board of EducationFootnote ¹⁰⁰ and Roe v. WadeFootnote ¹⁰¹ are quite rare, and rather than effectively embedding rights in our constitutional firmament permanently, frequently instead lead to resistance in their implementation and substantial, and often quite effective, backlash.Footnote ¹⁰² These responses reflect the potential instability of a litigation-centered approach to reform.

And litigation approaches to reenfranchisement are subject to additional substantial barriers in both movements. In the context of persons who have been convicted of felonies, in addition to the complexity of footnote 4 theory as applied to a class of people defined not by who they are or what they were born with but rather what they did, the text of the Fourteenth Amendment implicitly contemplates the removal of voting rights by States. Section 2 provides that states will not be penalized regarding their proportional representation in Congress if they deny the right to vote to persons engaged in “rebellion, or other crime.”Footnote ¹⁰³ And the history of the Reconstruction Amendments is in line with this understanding. It would therefore be difficult, if not impossible, to argue for a federally required constitutional right to vote for formerly incarcerated persons. In theory, it would be possible to win a constitutional challenge recognizing the legal rights of nonhuman animals, but that would require that they be deemed “persons” within the meaning of the Constitution’s text, which is also highly unlikely.

Thus, despite the arguments that might be drawn from footnote 4 of Carolene Products, it would seem that, at least with regard to voting and other participatory rights, other social change tactics would be more effective and sustainable. One might look at recent democratically driven successes in prison reform and view them as reason for hope that mobilization, community organizing, and policy advocacy are among those effective options. The initial success of the Florida movement to restore voting rights to the formerly incarcerated, as well as a more receptive public, at first blush suggests that there are realistic tactical options to address reenfranchisement for prisoners. Of course, because this movement suffered almost immediate backlash from the Florida legislature, advocates turned to the state and federal courts to block efforts to dilute the amendment. But this type of litigation is reactive and serves a more complementary role to the underlying mobilization strategy, as opposed to the litigation model, where the courts are the primary venue in which advocates seek change. Other signs of political mobilization in the prisoners’ rights movement may be seen in the surprisingly bipartisan cooperation that led to enactment of the First Step Act of 2018, which reformed federal criminal justice system by, among other things, reducing mandatory minimum sentences for nonviolent crimes, softening the federal “three strikes” sentencing requirements, and instituting some measures to improve prison conditions.Footnote ¹⁰⁴ Though these do not directly relate to enfranchisement, they represent the possibility of political and policy reforms advancing other related rights for prisoners and former prisoners.

What about nonlitigation efforts to improve the welfare of animals? Here, we have witnessed only mixed success, and none of the reforms has come close to addressing animal disenfranchisement. The most prominent piece of federal legislation regarding animals is the federal Animal Welfare Act (AWA), which establishes some legal standards for the protection of animals used for research and exhibition.Footnote ¹⁰⁵ Enacted in 1966, the AWA has been praised as an important foundation setting minimum standards for human treatment of nonhuman animals. At the same time, it has been widely criticized on the ground that the definition of “animal” is so narrow that it does not cover treatment of farmed animals or many animals commonly used in animal experimentation, provides those who work in the animal industry with cover that makes their activities less transparent, precludes efforts at stronger animal welfare legislation, and diminishes meaningful public discourse about animal rights and welfare.Footnote ¹⁰⁶ Legislative reform also occurs, of course, at the state and local level, and here groups such as ALDF have accomplished some success addressing discrete animal welfare issues in a number of jurisdictions.Footnote ¹⁰⁷ If some of this success can be directed toward legal recognition of surrogates such as ombudspersons to represent animals’ interests in the political and judicial process, it could promote at least some enfranchisement for animals.

17.6 Conclusion

In this chapter, we have attempted to establish a typological model for comparing cause lawyering across different social movements that share a common goal of challenging carceral logics in the United States. This is a very limited snapshot, but we hope to promote further discussion, not only about comparisons between the prisoners’ rights and animal protection movements, but also between and among other social movements. Moreover, we do not mean to suggest invisibility, moral suasion, and disenfranchisement are the only important factors to compare. Indeed, other researchers could address a range of other considerations that might yield rich and interesting comparisons across movements, including availability of resources, reliance on rights-oriented approaches to reform, and the comparative life stage of different movements, to name a few. We hope that this chapter will prompt further academic discussions and that such comparisons may, in turn, promote open and candid dialogue among cause lawyers associated with different movements to generate an appreciation for the value that can be drawn from such a comparative approach.

18.1 Introduction

On April 27, 2014, the New York Times Magazine ran a cover depicting a chimpanzee in a witness box, wearing a blue suit, with a microphone and glass of water before him.Footnote ¹ The well-dressed chimpanzee sat in a grand courtroom – dark wood, marble, an American flag – with a headline reading “His Day in Court.” The teaser reports that “A chimpanzee is making legal history by suing his captor – and raising profound questions about how we define personhood.” In terms of the burgeoning field of “animal law,” the iconography and messaging seem to be decidedly more about the law than about the animal.Footnote ² In terms of media representations, the costuming and juxtaposition is more evocative of comedies featuring nonhuman apes doing “human things”Footnote ³ than of the few cinematic works that have endeavored to depict nonhuman apes as subjects, as members of communities, or as victims of human violence.Footnote ⁴

The accompanying article describes the efforts of the Nonhuman Rights Project (NhRP) and its founding president, Steven M. Wise, to achieve judicial recognition of animals as legal rights-holders. The juridical form of this advocacy is most often a habeas corpus claim brought on behalf of a particular animal.Footnote ⁵ The writ of habeas corpus, dating back to at least the early-thirteenth century, originally represented a bare “command…to have the defendant to an action brought physically before the court.”Footnote ⁶ In its contemporary role, the writ entails a command to “produce the body” of a detained individual so that the courts may review the legality of their detention.Footnote ⁷ Where a reviewing court finds that an individual is being deprived of their liberty without lawful authority, the writ of habeas corpus will issue, and the individual may be released.

The writ’s ancient pedigree and its association with bodily liberty have made it a legal tool with a complex relationship to carceral practices. The writ has functioned both to liberate illegally detained individuals and to affirm the validity of underlying systems of legally authorized incarceration.Footnote ⁸ The so-called Great Writ of LibertyFootnote ⁹ has thus survived and even thrived in a number of contexts where liberty interests have been systematically denied.Footnote ¹⁰ Advocacy surrounding the use of the writ on behalf of nonhuman animals in US courts has, however, tended toward aspirational, sometimes bordering on fantastical, accounts of the writ’s achievements in human justice contexts. These accounts rarely attend to the writ’s historical and contemporary role in sustaining rather than disrupting entrenched practices of human confinement, ranging from American racial slavery, mass incarceration, immigration detention, and the so-called war on terror. Instead, the writ, and the common law tradition more broadly, are portrayed by these advocates as manifesting a just and morally appropriate legal order that needs only to correct the “mistake” of omitting animals from its purview.Footnote ¹¹

This chapter will introduce a corrective to this superlative vision of habeas corpus, its achievements in human justice contexts, and its potential for animal liberation. This study will begin by elaborating a critique of Wise and the NhRP’s approach to habeas corpus, arguing that this advocacy tradition overstates the writ’s accomplishments, often relying on an incomplete account of the writ’s history to do so. In particular, these accounts of the writ’s successes tend to paint struggles against racial violence and inequality as complete, thus minimizing the import of urgent ongoing justice projects. Next, a historical corrective is offered, demonstrating how closer attention to the writ’s actual role in human carceral systems can enrich our understanding of the writ’s limits and potential. This account will emphasize that the writ of habeas corpus operates only to challenge illegal (rather than unjust) detention; that it operates only at the margins of legal confinement systems to contain rather than to eliminate carceral practices; and that it therefore serves a role not only in challenging individual instances of confinement, but also in sustaining and validating ongoing carceral practices.

This more critical picture of habeas corpus, however, does not strip the writ of its potential as an advocacy tool for the interests of nonhuman animals. Instead, this chapter will argue, animal advocates might join other social justice movements in adopting a more ambivalent embrace of rights litigation. It is possible, often necessary, for advocates to turn to legal tools without adopting an uncritical posture toward law. Indeed, as with other ambivalent embraces of rights – including historical uses of habeas corpus – litigation is often a critical tool in bringing political attention to social injustices. In the case of habeas corpus litigation, this is best achieved through legal analyses that focus on the harms of confinement. Such efforts do not depend on a sanguine account of law. In fact, an excessive fealty to the underlying justice of carceral systems can thwart efforts to publicize their harms through litigation. Successful transformation of animals’ circumstances under law have almost always been driven by public attention to the suffering of animals at human hands. This chapter will propose that the greatest potential offered by the writ of habeas corpus is a focus on liberty that invites advocacy spotlighting the experiences of animals living within human systems of violence and confinement. It is this prospect of exposing and exploring the harms of human domination of other species – not any fantastical account of the writ’s human achievements – that gives habeas corpus its most meaningful transformative potential.

18.2 The “Great Writ”: From Fantasy to Reality

Wise’s discussions of habeas corpus vacillate between acknowledgment of the writ as a strategic or imperfect vehicle and description of the writ in lofty, idealistic terms. The focus of my criticism is on Wise’s more grandiloquent celebrations of the writ and the common law tradition more broadly. Wise’s honorific treatment of “the Great Writ”Footnote ¹² is grounded in a similarly admiring approach to the common law tradition from which the writ emerged.Footnote ¹³ Wise describes the common law tradition as including an “objective” component that “thoroughly permeates Western law at every level and creates the near absolute barriers to the domination of one person by another that is the outstanding characteristic of western liberal democratic justice.”Footnote ¹⁴ This claim that law has created an effective bulwark against domination “seems to misstate the achievements of rights within human communities,” making sense only if we “look away from the facts and conditions of mass incarceration, immigration detention, police violence, and private violence indirectly supported by the state.”Footnote ¹⁵ This general mischaracterization of Anglo-American legal traditions is illustrated and made concrete in the context of Wise’s particular treatment of the writ of habeas corpus.

Wise’s description of the writ’s history is heavily focused on a general account of the writ’s development in the English medieval and Renaissance periods,Footnote ¹⁶ together with a discussion of the writ’s use in the context of American racial slavery.Footnote ¹⁷ Wise’s account of the writ’s emancipatory potential relies in significant part on his most developed case study, the 1772 case of Somerset v. Stewart, in which the writ of habeas corpus was successfully deployed to challenge the legality of the detention of an enslaved person.Footnote ¹⁸ In this historic decision, a British court found that slavery was contrary to the common law of England, and so refused to return an escaped, formerly enslaved person in England to a man claiming to be his “owner” under Virginia law.Footnote ¹⁹ The case is now widely regarded as establishing that slavery (which was not as widely practiced on English soil as in the AmericasFootnote ²⁰) was illegal under English common law.Footnote ²¹

Wise’s treatment of this case tends to overstate both its practical achievements and its usefulness in illuminating the ordinary functioning of the writ of habeas corpus. Wise’s book examining this case is titled “Though the Heavens May Fall: The Landmark Trial that Led to the End of Human Slavery.”Footnote ²² The title “Though the Heavens May Fall” comes from the Latin maxim Fiat justicia, ruat coelumi (“Let justice be done, though the heavens may fall”), invoked by the presiding judge in the trial.Footnote ²³ The subtitular reference to this as the trial that “led to the end of human slavery” exaggerates the role of this English decision in ending the American system of racialized chattel slavery, which drew to its formal close over one hundred years later,Footnote ²⁴ within a different legal jurisdiction, and in the wake of economic transformation, a civil war, and the rebellion and advocacy of enslaved and formerly enslaved people themselves.Footnote ²⁵ The titular reference to “the end of human slavery” erases the persistence of slavery as an economic and social practice around the world.Footnote ²⁶ This description also obscures the fact that even within the United States, “involuntary servitude…as punishment for a crime” remains a legally permissible and highly raced carceral practice.Footnote ²⁷

Wise describes the writ’s use in Somerset v. Stewart as “[p]aradigmatic,” suggesting that this was a typical example of the writ’s operation.Footnote ²⁸ In fact, this was quite an exceptional case.Footnote ²⁹ The availability of habeas corpus and other legal mechanisms for reviewing the legality of the detention of enslaved people generally posed little or no disruption to the institutions of American racial slavery.Footnote ³⁰ The court’s conclusion that Somerset could not lawfully be held as a slave depended on a finding that his common law liberty rights had not been displaced by statute: “The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only by positive law… : it’s so odious, that nothing can be suffered to support it, but positive law.”Footnote ³¹ In other words, if English legislation had authorized Somerset’s enslavement, the writ would not have issued. Even within England, the Somerset judgment was confined to the individual case before the court, and was not followed by a “rush for writs” on behalf of other enslaved people within England.Footnote ³² The impact of the decision was even slighter within American states, where slavery was authorized and regulated by statute. As legal historian Paul Halliday has observed in connection with this case, “[h]abeas corpus, by its nature, could not enable a judge to declare illegal an entire system of bondage created by colonial legislatures.”Footnote ³³ The writ of habeas corpus is available to review the legality of detention; insofar as slavery or other kinds of detention were lawful, the writ posed no threat to associated systems of confinement. The availability of the writ of habeas corpus is entirely consistent with ongoing, systemic, legalized confinement.

Exaggeration of the writ’s role in bringing slavery to an “end” is part of a broader, damaging rhetorical strategy that has often been deployed by animal advocates. Analytic links (implicit and explicit) between contemporary animal use and American racial slavery have been pervasive in the animal advocacy movement,Footnote ³⁴ despite persistent objections. Animal advocates have been criticized for taking an interest in chattel slavery not to attend to its complexity and ongoing impacts, but with the aim of “pronouncing it dead and naming animal slavery as its successor.”Footnote ³⁵ As Angela Harris has observed, these analogies often depend on an “implicit assumption that the African American struggle for rights is over, and that it was successful” – an implication that is both inaccurate and potentially harmful to the ongoing justice struggles of Black Americans.Footnote ³⁶ Claire Jean Kim elaborates that such an approach “relentlessly displaces the issue of black oppression, deflecting attention from the specificity of the slave’s status then and mystifying the question of the Black person’s status now.”Footnote ³⁷

The retelling of the human history of habeas corpus as one of triumph – especially triumph over legalized forms of race-based violence and confinement in the United States – is both misleading and dangerous. Black Americans continue to experience disproportionate levels of state violence, including through policing, surveillance, and mass incarceration.Footnote ³⁸ The availability of habeas corpus has not dismantled these systems, nor has it eliminated their disparate impacts along racial lines. Habeas corpus – the Great Writ of Liberty – thus continues to operate within racially ordered carceral systems that confine and kill human beings. The writ has not been a wrecking ball of justice, boldly demolishing systems of confinement, “though the heavens may fall.”Footnote ³⁹ Instead, the writ has served as a more modest legal tool – one that has curbed the excesses of those carceral practices that are illegal even within systems that generally authorize violence and detention.

18.3 Rethinking Habeas Corpus and Its Limits

Habeas corpus is best understood as operating to contain specific carceral practices at the margins while also working to authorize or confirm the legal legitimacy of carceral systems as a whole. The writ functions only to stop or restrain detentions that are unlawful, meaning that the underlying legal order must disapprove of the carceral practice in order for the writ to work as a restraint on that practice. Moreover, the writ serves as an effective check only where one part of government is thought to be disobeying the law, and the judiciary can be expected to intervene to correct this disobedience. Habeas corpus is not a legal mechanism for dismantling systems of confinement – it is a mechanism for holding those systems of confinement to their own rules. Its effectiveness depends on the strength of underlying substantive rights (i.e., legal limits on detention) and on institutional considerations (i.e., whether reviewing courts are likely to safeguard those limits more effectively than other legal decision-makers). This characterization of the writ is supported by two well-studied contexts of US habeas corpus litigation: federal judicial oversight of state criminal procedure and judicial review of executive detentions at Guantánamo Bay.

Consider, first, the role that the writ of habeas corpus has played in facilitating the oversight of state criminal procedure by federal courts. During the 1960s, the Supreme Court of the United States substantially increased the application of federal constitutional protections to state criminal process, including prohibiting the use of evidence obtained through illegal searchesFootnote ⁴⁰ and requiring that accused persons be advised of their rights in interrogation.Footnote ⁴¹ State courts adjudicating criminal proceedings, however, were often hostile and resistant to the introduction of these federal constitutional requirements.Footnote ⁴² The writ of habeas corpus came to play a critical role in subjecting state criminal convictions to review before federal courts, assuring the protection of federal constitutional protections in the face of state court recalcitrance.Footnote ⁴³ Historians and legal scholars have debated the extent to which this represented a major expansion of habeas corpus or simply a modest continuation of the writ’s historic office.Footnote ⁴⁴ In either case, it is undisputed that any waxing in the availability of habeas corpus certainly waned in subsequent years of legislative and judicial restrictions on the writ’s availability.Footnote ⁴⁵ Nonetheless, the writ continues to play a role in assuring the legality of detention in state criminal proceedings through review by federal courts.

The availability of habeas corpus as a mechanism for bringing constitutional violations before federal courts is, of course, deeply significant to individual defendants and incarcerated persons who would have otherwise had little meaningful hope for protecting their rights.Footnote ⁴⁶ However, if we hope to understand the role of habeas review within the broader context of criminal carceral practice, another reality becomes equally important: that the availability of habeas corpus in individual cases has not worked to end or reduce the scale of state carceral systems. Instead, rates of incarceration have ballooned since habeas review of state courts’ compliance with federal constitutional requirements was affirmed.Footnote ⁴⁷ Moreover, in all cases, the writ’s function remains the supervision of the legality of the particular detention under review, rather than the underlying justice of criminal carceral systems more broadly.

Perhaps the most striking and intuitive example of the split between habeas review (focused on legality) and interrogation of the underlying justice of detention is the Supreme Court of the United States’ judgment in Herrera v. Collins.Footnote ⁴⁸ In that case, the Court effectively established that actual innocence of the crime for which a person has been convicted is insufficient as a basis for postconviction relief: “federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution – not to correct errors of fact.”Footnote ⁴⁹ Habeas corpus was thus found to offer a veneer of judicial oversight, expressly foreclosing attention to the justice or injustice of the underlying carceral system.Footnote ⁵⁰ Because of the writ’s focus on legality and procedural oversight, the enforcement of rights through habeas corpus proceedings has played a role not only in challenging specific instances of illegality, but also in confirming and legitimizing underlying carceral systems.Footnote ⁵¹

We can observe similar limits on the transformative potential of habeas corpus in the writ’s application to persons detained at the Guantánamo Bay detention camp. In a series of cases before the Supreme Court of the United States, advocates successfully argued that the writ must be formally available to those detained at the camp,Footnote ⁵² and that statutes limiting access to the federal courts to adjudicate such habeas claims amount to an unconstitutional suspension of the writ.Footnote ⁵³ The imperative to achieve meaningful access to the writ derived largely from these advocates’ assumptions that federal judges would recognize and apply the legal rights of detainees more effectively than the military commissions established to adjudicate these cases.Footnote ⁵⁴ In practice, however, the appellate court to which most of these cases flowed turned out to be remarkably resistant to these habeas claims, even where they had been successful before lower courts.Footnote ⁵⁵ Notably, the Supreme Court’s affirmation of the availability of habeas review respecting detentions at Guantánamo Bay left open the essential question of which legal rules might actually constrain executive authority to detain in these cases. A recent federal court judgment answered this question with a remarkably restrained account of the substantive legal rights that might apply in these cases. The court held that the Due Process Clause of the federal constitution’s Fifth Amendment could not be invoked by “an alien detained outside the sovereign territory of the United States,” effectively limiting constraints on detention at Guantánamo Bay to those created by statute.Footnote ⁵⁶ Limited to these minimal statutory protections, prosecutors are permitted, for example, to rely on evidence obtained from another detainee through torture or coercion.Footnote ⁵⁷

It is difficult to pin down the precise impact of this habeas litigation on the carceral project at Guantánamo Bay. The total number of detainees at Guantánamo Bay has dropped significantly as a result of policy choices by the Obama administration. It is at least arguable that years of habeas litigation played a role in keeping the spotlight of public opinion on the plight of Guantánamo Bay prisoners, provoking this policy shift. There may be, moreover, some symbolic significance to the Court’s extension of the writ to Guantánamo Bay detainees, emphasizing in the public psyche the principle that the demands of justice must extend even to the most detested prisoners, and even to a space seemed designed to operate outside the confines of law. In terms of direct legal effect, however, the Supreme Court’s confirmation that the writ of habeas corpus may be used to challenge detentions at Guantánamo Bay has had starkly limited consequences. The limited scope of legal rights constraining detentions has meant that prisoners have not actually been released as a result of judicial pronouncements in habeas corpus proceedings. In fact, the D.C. Circuit Court has sided with the executive in every single case where it has challenged a habeas claim asserted by a person detained at Guantánamo Bay.Footnote ⁵⁸ The D.C. Circuit Court’s caselaw in these matters underlines the reality that the writ’s effectiveness in challenging detentions will always depend on both institutional realities (here, respecting whether the judiciary might serve as a check on executive power) and on the definition of underlying substantive rights. In the case of Guantánamo Bay, a finding that few substantive rights constrain government authority has gutted the practical impact of habeas corpus review: individual prisoners are simply not being set free on judge’s orders pursuant to the writ. Moreover, despite the decrease in the number of prisoners held at Guantánamo Bay, the writ’s availability has not ended the basic underlying carceral system in issue. The detention center remains open and legally authorized, holding prisoners who are unprotected by federal constitutional rights.Footnote ⁵⁹

The writ, then, has not proven itself to be an effective device for reliably dismantling systems of legalized confinement. As a legal tool, it is best understood as a procedural mechanism designed to ferret out instances of illegal detention within systems that, more broadly, continue to authorize carceral practices. The significance of the writ derives not from its capacity to unearth new substantive protections, but from its particular function within systems where some part of the government is disobeying or overstepping the established confines of its legal authority. It is for this reason that the writ is so strongly associated not only with the “liberty” of individuals but also with structural features of the American legal system. In the Guantánamo Bay cases, the relevant structural feature is “‘separation of powers,” balancing the roles of executive, judicial, and legislative authority.Footnote ⁶⁰ In cases respecting federal courts’ oversight of state courts, the relevant structural feature is “federalism,” balancing the roles of state and federal governments.Footnote ⁶¹ The writ of habeas corpus serves to restrain illegal confinement, allowing one part of government to supervise the legality of another authority’s particular actions within contexts of legalized violence and incarceration. The writ operates within, and lends legitimacy to, the broader carceral systems and logics of which it forms a part, even as it works to invalidate some individual instances of confinement. In short, the writ is better described as confining carceral systems to “business as usual” than to mandating transformation “though the heavens may fall.”Footnote ⁶²

18.4 Special Challenges for Habeas Corpus Claims on Behalf of Animals

This understanding of habeas corpus – as a tool within, rather than a threat to, carceral systems – is of particular significance in the animal protection context. On what basis might we claim that it is not only wrong but unlawful to confine an animal? In the case of federal court supervision of state criminal procedure, the limits of lawful detention are defined by federal constitutional rights. In the case of Guantánamo Bay prisoners, it is breach of statutory protections that might render detention unlawful. In the case of Somerset v. Stewart, it was the common law that was held to prohibit the detention in issue, a protection that the court explicitly noted would extend only as long as no positive law permitted slavery in England.

A hard reality for animal advocates is that most practices of contemporary animal confinement are clearly authorized – and often affirmatively encouraged or practically required – by legislation and regulation.Footnote ⁶³ This statutory context poses special challenges for habeas corpus claims on behalf of animals. The presence of statutes governing the conditions in which animals may be confined stands to frustrate claims rooted in the common law. Wise and the NhRP have been clear that it is not their intention to seek enforcement of animal protection legislation; they instead assert that there is an underlying illegality to animal confinement (at least in some cases) that is defined by common law principles.Footnote ⁶⁴ Given the thicket of statutory law governing animal captivity,Footnote ⁶⁵ it is difficult to imagine a court accepting an argument of this kind, even if they were to find the writ to be available in respect of animals. Recall that even in Somerset, the court acknowledged that positive law could authorize slavery in England even if the common law prohibited it.Footnote ⁶⁶ Consequently, even if the NhRP were to succeed in arguing that the common law included liberty rights for animals, it would be an additional hurdle to prove that animal confinement is the sort of unregulated space in which a meaningful common law claim might grow unencumbered by statutory interventions.Footnote ⁶⁷

One approach to these statutes might be to incorporate them into habeas claims: to argue that the detention of some animals is unlawful precisely because these animals are held in contravention of animal protection legislation.Footnote ⁶⁸ There is long-standing debate and contradictory jurisprudence respecting whether human prisoners may use the writ of habeas corpus to challenge conditions of confinement as opposed to the fact of confinement itself. At the federal level, the Supreme Court of the United States has left open the possibility that habeas corpus may be available to challenge conditions of confinement,Footnote ⁶⁹ and circuit courts are presently split on the question.Footnote ⁷⁰ In New York State, where the NhRP has brought its habeas corpus claims, the case law has generally rejected the application of the writ to challenge conditions of confinement, but has allowed that such claims may succeed where a prisoner seeks to be removed to “an institution separate and different in nature” from the correctional setting specified by their sentence.Footnote ⁷¹ As the NhRP has argued, seeking a chimpanzee or elephant’s removal to a sanctuary might fall within this ambit.Footnote ⁷² This certainly seems more plausibleFootnote ⁷³ than the claim that an underlying common law liberty right for animals has survived the thorough legislative and regulatory codification of animal captivity.

The NhRP, however, has spurned the route of advancing claims that animal detentions are unlawful due to contraventions of statutes and regulations.Footnote ⁷⁴ To be sure, the thin legal protections that are afforded to animals respecting their autonomy and bodily integrity (i.e., animal “welfare” laws)Footnote ⁷⁵ are often woefully underenforced.Footnote ⁷⁶ Access to the writ of habeas corpus to cure these defaults would represent a victory for animals, especially considering the obstacles animal advocates have faced in arguing that they have standing to compel agency enforcement action.Footnote ⁷⁷ Nonetheless, the NhRP has chosen the more difficult path of grounding their claims in common law liberty rights. This decision is likely informed by the organization’s commitment to an “animal rights” philosophy,Footnote ⁷⁸ pursuant to which animals (at least great apes, elephants, dolphins and whales) should have legally protected rights to “bodily liberty” and “bodily integrity.”Footnote ⁷⁹

A legal order that respected animals’ rights to bodily liberty or bodily integrity would not allow the routine injury, capture, or killing of animals – all practices that are currently commonplace and legally authorized. Recognition of such animal rights would require revolutionary transformations in our practical relationships with other animals, notwithstanding Wise’s insistence that it would be an incremental change within the logic and jurisprudence of the common law.Footnote ⁸⁰ But, as we have seen, habeas corpus is not a revolutionary tool. The writ, instead, provides remedies for individual cases of confinement that fall outside of the legally sanctioned norms of entrenched carceral systems. The NhRP’s litigation briefs take this individualistic form, emphasizing in each case that the court need not – must not – consider the policy implications of animal liberation.Footnote ⁸¹ Instead, the NhRP urges, each case concerns only the one animal before the court.Footnote ⁸² In the case of Happy the elephant, the NhRP argues, the court must consider only Happy, not the other (metaphorical) elephant in the room: if Happy may not be legally detained, what does this mean for a sociolegal order that has long treated the injury, captivity, and death of animals to be routine, even foundational?Footnote ⁸³

It is perhaps this tension between revolutionary ambitions and the limits of quotidian legal tools that has contributed to Wise’s overly celebratory accounts of the common law and the writ of habeas corpus. Suggestions that the writ requires justice be done “though the heavens may fall”Footnote ⁸⁴ may be thought to give hope for the claims of animals despite significant doctrinal obstacles and entrenched practices of legalized animal confinement. But, as we have seen, such lavish praise for the “Great Writ” and its achievements is both misleading and harmful. In reality, the writ has served comfortably within and alongside systems of confinement, curbing only those marginal practices that are unlawful within the terms of those systems themselves. To suggest otherwise minimizes or erases the ongoing realities of state-sanctioned violence and carcerality.

18.5 Habeas Corpus and the Critique of Rights: The Ambivalent Embrace of Legal Tools

Other justice movements have struggled with this tension between their own revolutionary ambitions and the conservative nature of legal tools. Social justice advocates have often found it necessary to rely on legal languages and logics, even while acknowledging their limits. Legal tools can be, and have been, picked up by advocates who maintain a critical posture toward the systems with which they engage. As Mari Matsuda explains in describing the use of rights strategies in human and civil rights contexts:

It is possible to appeal to entrenched legal tools and values while keeping in view the reality that these tools and values may be elements of unjust carceral orders. The choice to resort to habeas corpus advocacy does not require animal advocates to claim that the writ has ended injustice wherever it has applied, or that urgent, ongoing justice struggles are complete or resolved.

The embrace of rights litigation by feminist and critical race theorists offers a model for a more ambivalent relationship to legal tools. As telegraphed in Matsuda’s quotation above, the language of “rights” has long been criticized by feminist and critical race theorists, who nonetheless conclude that rights can be an important device for advancing substantive justice projects.Footnote ⁸⁶ These scholars have largely accepted a body of arguments referred to collectively as “the critique of rights.”Footnote ⁸⁷ One element of this critique is that rights are less transformative than many people assume, and may in fact play a critical role in sustaining existing hierarchies and power relationships.Footnote ⁸⁸ Another element of this critique is that rights language is “mystifying,” obscuring how law functions in practice, and directing an inordinate focus on individual cases at the expense of structural dynamics.Footnote ⁸⁹ These critiques – of mystification, individual rather than systemic focus, and participation in sustaining the status quo – are echoed in the preceding critique of grandiose habeas rhetoric. Yet, despite general agreement that legal rights advocacy has these shortcomings, feminist and critical race theorists have largely settled on an uneasy embrace of rights-based litigation strategies.Footnote ⁹⁰ The ambivalent embrace of rights is grounded in strategic imperatives that hold true for habeas corpus advocacy as well.

First, rights are critical sites of power and contest within existing legal systems.Footnote ⁹¹ This is also true of habeas corpus, a procedural mechanism with deep roots in the Anglo-American legal system, and which has served as a focal point for social and legal battles ranging from racial slavery to civil rights to the “war on terror,” as we have already seen.Footnote ⁹² Second, rights carry distinctive social and legal force as a means of expressing need, constraining power, or, at the very least, demanding official response.Footnote ⁹³ This, too, is a feature of habeas corpus advocacy. At a minimum, claims brought in habeas corpus on behalf of animals have required those holding animals captive to offer legal justifications, and have required courts to offer reasons for their conclusions as to why these justifications are legally sufficient.Footnote ⁹⁴

Those pursuing habeas corpus claims on behalf of animals may benefit from the writ’s deep roots in American legal thought and practice, and its capacity for demanding official response, without advancing grand, misleading claims about the writ’s achievements for human beings and the law’s “objective” tendency to end domination.Footnote ⁹⁵ In fact, once we strip away Wise’s sanguine account of the writ’s achievements in human justice contexts, the writ offers a different kind of promise for animal advocates.

18.6 Habeas Corpus and the Harms of Captivity

Habeas corpus claims offer more than an entrée into existing American legal praxis, capable of forcing engagement with the claims of animals. The writ also invites substantive engagement with some of the most grievous harms facing animals: harms of captivity.Footnote ⁹⁶ Animals are so routinely caged, and this caging so widely understood as harmful, that the idiom “like a caged animal” has become a central metaphor for the pains of liberty deprived.Footnote ⁹⁷ To the extent that the harms of confinement, and the corollary value of liberty, are core justice concerns of animals, habeas corpus presents a particularly apt legal framework for elaborating claims. Wise and the NhRP are correct in identifying the writ of habeas corpus as being intimately connected to “liberty” as a legal value both historically and in contemporary practice.Footnote ⁹⁸ The demands of “liberty” are, however, famously contested in human justice contexts.Footnote ⁹⁹ The strongest forms of habeas corpus advocacy are those that recognize that the common law, and the writ of habeas corpus, do not represent an inexorable march toward a predefined and objective liberty, but rather a partial and fraught inroad into debates about carceral practices and the value of autonomy.

Wise’s view of habeas corpus as part of an inherently just common law order, grounded in part in “objective” principles,Footnote ¹⁰⁰ has at times manifested in advocacy strategies that attend to supposedly objective facts about animals. The attendant evidentiary focus is on the intrinsic qualities of animals, rather than on the subjective and relational experiences of animal lives in captivity. Such lines of argumentation seek to prove, for example, that nonhuman great apes have legally relevant “autonomy” because they are logical, able to use tools, are self-aware, or have the capacity for language.Footnote ¹⁰¹ In response, scholars have charged that Wise and the NhRP focus excessively on arguments that animals are “like” people on a series of measurable metrics.Footnote ¹⁰² This focus on animals’ similarities to humans has been criticized for replicating underlying logics of domination and hierarchy and for wrongly accepting the premise that “facts about difference…explain why powerful groups exploit and harm less powerful groups.”Footnote ¹⁰³

Significantly, this strategy is not a capitulation to some clear, existing legal standard. There is no accepted judicial or statutory framework for assessing which entities are eligible for habeas corpus under the relevant statuteFootnote ¹⁰⁴ or who counts as a rights-bearing legal “person” more generally.Footnote ¹⁰⁵ Instead, Wise and the NhRP have chosen to foreground this scientistic approach, echoing the supposed objectivity that Wise has attributed to just common law reasoning.Footnote ¹⁰⁶ Habeas advocacy might just as easily pursue a different track. Instead of seeking to prove as a matter of “science” or “logic” that animals fall into the category of rights-holders, advocates might seek to prove as a matter of relationship and recognition that animals live, love, and hurt in ways that should matter to law.Footnote ¹⁰⁷ Rather than focusing on animals’ ability to meet sterile scientific tests of capacity (mirror self-recognition, for example), habeas corpus advocacy might focus instead on what animals value in their own lives.

I have proposed a simple standard for assessing whether an animal ought to qualify as a holder of rights in habeas corpus: whether the animal in question has a substantial interest in their own liberty.Footnote ¹⁰⁸ Rather than focus on an animal’s provable skills or talents, this inquiry directs us to consider the animal’s subjective experience: “Does this animal feel the burdens of captivity? Does this animal yearn to be free?”Footnote ¹⁰⁹ If so, their confinement gives rise to “the underlying harm at which habeas corpus aims: that the burdens of captivity should not be imposed without lawful cause.”Footnote ¹¹⁰ Juridically speaking, this standard does not resolve all of the challenges that habeas corpus actions on behalf of animals face. The significant obstacles to proving animal confinement unlawful remain. But the threshold inquiry to which we are directed is reshaped. Instead of a prodding assessment of the animal’s intrinsic qualities, the analysis would begin with an exploration of the harms of confinement.

Scientific evidence may still play a role in evaluating habeas corpus claims on this standard, but the focus would be on what research reveals respecting the value of freedom to animals, for example in their lives as friends, as mothers, and as kin.Footnote ¹¹¹ Rather than arguing that chimpanzees, for example, ought to have access to habeas corpus because they are objectively “like us,” it might be argued that chimpanzees value their own relational autonomy,Footnote ¹¹² that they suffer in isolation or when their kinship bonds are broken, and that law can and should serve as a vehicle for those interests. Under such an approach, ethological evidence respecting how chimpanzees form relationships, care for their young, grieve their dead – and how these relationships are frustrated by confinement – tells us more about the validity of claims for chimpanzees’ liberty than facts about, for example, whether chimpanzees can learn to use sign language in a laboratory.Footnote ¹¹³

Elements of this proposed approach already exist in the NhRP’s filings. Their petition on behalf of Happy the elephant, for example, explains that “elephants are a social species who suffer immensely when confined in small spaces and deprived of social contact with other members of their species,” citing expert evidence that elephants held in isolation experience boredom, depression, and other emotional and physical harm.Footnote ¹¹⁴ The petition further notes that elephants recognize and respond to the voices of their family members,Footnote ¹¹⁵ and that separation from their families in human captivity causes trauma so severe that their cognitive capacities are impaired for years following the separation.Footnote ¹¹⁶ The framework within which this evidence is advanced, however, does not emphasize the harms of captivity. Instead, the NhRP marshals this evidence to prove that Happy “possesses complex cognitive abilities” that should qualify her for liberty rights – appearing alongside detailed evidence of elephant brain size, complexity of communication patterns, and memory.Footnote ¹¹⁷ This focus on proving Happy’s intrinsic qualities – that she is like humans in her skills and capacitiesFootnote ¹¹⁸ – comes at the expense of an inquiry into her experience of captivity. Pages of submissions are dedicated to proving these “abilities,”Footnote ¹¹⁹ while a single paragraph attends to the fact that “elephants are a social species who suffer immensely when confined in small spaces and deprived of social contact with other members of their species.”Footnote ¹²⁰ This is not for want of evidence on the point.Footnote ¹²¹ In addition to the well-documented “social and psychological deprivation, physical deterioration, suffering and premature death” suffered by captive elephants, experts report that captivity leaves elephants “unable to fully engage in the seminal activities that define individual identities, relationships and cultural experiences – activities that may be among the most important components of elephants’ lives, providing purpose, depth and meaning.”Footnote ¹²²

A legal standard focused on animals’ experiences of their own liberty and its deprivation would reverse this emphasis, calling attention not to animals’ abstract capacities, but to their values, relationships, and experiences – including the realities and details of their suffering in captivity. The underlying portrait of law need not be one of an intrinsically fair system, embodied in a Great Writ that will aid liberty in any just case. Instead, the legal order may be accepted as a complex field of power and persuasion, littered with battles that have been hard-fought and half-won. Instead of proceeding as though logic and objective proof are the driving force of habeas argumentation, it is possible to proceed as though the writ’s availability should be anchored in the tedium, frustration, and sorrow of life in a cage.

18.7 Representing Animal Law: Beyond A Chimp in a Suit

Courts are not the only audience for habeas corpus litigation. Halliday sums up his historical survey of the writ’s use in England and its colonial empire by noting that the “idea of habeas corpus” has often been “more powerful outside of courtrooms than inside them.”Footnote ¹²³ He reports that advocates – including Somerset’s lawyer, Granville Sharp – were “often disappointed in the liberating ambitions they pursued at law,” but that, crucially, “[i]n cases like theirs…the idea of habeas corpus has continued to influence public debate.”Footnote ¹²⁴

Wise and the NhRP have not limited their battles to the courtroom. Litigation stands as just one pillar of their three-pronged mission, alongside legislative advocacy and a broad “education” mandate.Footnote ¹²⁵ The NhRP’s petitions must be assessed in this context: as part of a broader strategy for transforming the legal status of animals.Footnote ¹²⁶ Whatever difficulties we may identify in their strategies and tactics, it is undeniable that the NhRP has been wildly successful in attracting media attention to their cause.Footnote ¹²⁷ Might the shortcomings of the NhRP’s framings be justified by the public attention they have drawn to the claims of captive animals?

I have argued elsewhere that the law reform efforts that have most effectively achieved transformation for animals have been those that have illuminated and publicized the particular facts of animal experience in compelling emotional appeals.Footnote ¹²⁸ Wise’s emphasis on the significance of the writ can lead to media stories that feature the grandeur of law: the Greatness of the Great Writ, or the weight and meaning of “personhood” as a legal status. This focus draws attention to animals as a legal curiosity – a chimp in a suit – rather than animals as victims of violence and confinement. The media coverage often emphasizes the law rather than the animal.Footnote ¹²⁹ As the New York Times Magazine cover suggests,Footnote ¹³⁰ the media image projected may focus on the oddity of an ape in a courtroom rather than on the tragedy of an ape in a cage.

Habeas corpus advocacy, however, need not advance a triumphalist vision of law. Strategies that emphasize the harms of captivity, rather than the supposed greatness of legal traditions, have greater potential to persuade courts and publics that animals need and deserve legal protection. Litigation focused on animals’ own lives, values, and relationships might dovetail with public education and advocacy approaches that recognize the value of animal experiences on their own terms – not as near-humans, but as beings whose experiences matter in their own right.Footnote ¹³¹ The NhRP’s legal strategy has invited the image of an awkwardly styled chimpanzee in a suit – a misfit in a system designed with others in mind. Habeas corpus claims grounded in a threshold concern with the harms of captivity might instead invite images of animals as mothers, brothers, or friends – beings whose realities our legal system should strive to recognize.

19.1 Introduction

In 2018, the Animal Legal Defense Fund and an equine rescue organization filed suit on behalf of a neglected horse against its past owner seeking monetary damages to cover the costs of the animal’s rehabilitation and care, as well as compensation for the animal’s pain and suffering. Departing from the ordinary practice of bringing suit in their own right as animal protection organizations, the two groups sought to name the horse directly as a plaintiff with standing to assert its own legal rights. The animal, an American quarter horse previously known as Shadow but renamed Justice following its rescue, had been badly neglected by its prior owner, Gwendolyn Vercher. At the urging of a neighbor, Vercher surrendered the emaciated horse to a rescue organization. She later pled guilty to criminal animal neglect under Oregon’s anticruelty statute. Justice’s civil lawsuit sought monetary damages to establish a trust fund in hopes that the financial support might enable the horse to be adopted by a new owner.

After a trial judge dismissed Justice’s complaint, the animal organizations appealed. An amicus brief authored by leading animal law experts supported Justice’s quest for legal standing, arguing that “he has a right to sue in civil court in order to recover damages in Oregon.”Footnote ¹ The brief detailed a variety of ways in which nonhuman animals already hold special status under the law as living beings entitled to be treated as more than mere property. In particular, because Oregon’s criminal anticruelty statute expressly recognizes animals as the recipients of legal protection, the scholars argued that allowing an animal victim to sue its abuser directly for civil remedies would be a “straightforward” proposition:

As of this writing, the appeal in Justice’s case was still pending, and the possibility that nonhuman animals might bring their own civil lawsuits in the United States remains an imaginative exercise only.

This chapter takes up the imaginative exercise by asking what it would look like if nonhuman animals were allowed to bring false imprisonment claims to challenge their captivity. The Anglo-American legal tradition includes a civil tort of “false” imprisonment, whereby one who acts intending to confine another without justification within fixed boundaries may be held liable, so long as the other is conscious of or harmed by the confinement. This cause of action is distinct from the criminal and constitutional law framework that governs the authority of the state to detain, investigate, or imprison. At the heart of that framework in the Anglo-American legal tradition lies the writ of habeas corpus—the so-called Great Writ that was considered by Jessica Eisen in the previous chapter along with the legal campaign to extend its protection to nonhuman animals. Like habeas corpus, the false imprisonment tort encompasses concerns regarding government overreach,Footnote ³ but also extends to confinement that is wrongfully – that is, “falsely” – imposed by nongovernmental actors. Victims of such conduct are afforded a right of civil redress against their captors, with remedies available including compensatory, nominal, and punitive damages. Thus, while the habeas corpus writ stands as a constitutional check on the state’s infringement of bodily autonomy, the tort of false imprisonment offers a common law cause of action against wrongful detention by any actor, public or private.

This chapter considers how a false imprisonment action might unfold if it were pursued by a nonhuman animal held in captivity. The exercise has the dual purpose of (1) learning how existing false imprisonment doctrine might apply to nonhuman animals if they were given standing to bring civil actions; and (2) exploring what might be learned about the current application of false imprisonment law to human plaintiffs when we engage in such an effort to “think with animals.”Footnote ⁴ As will be argued, envisioning the false imprisonment claim of nonhuman animals reveals fissures and tensions within the doctrine that go to the very foundation of legal and political organization.

19.2 The Tort of False Imprisonment

The false imprisonment tort offers a civil remedy to individuals who have been intentionally and wrongfully confined by another actor. The rationale behind the tort of false imprisonment is to recognize the plaintiff’s right to be free from unwanted, intentional interference with freedom of movement, which in the liberal legal tradition is taken to be bound up with a person’s fundamental interest in autonomy. Like other intentional torts such as battery and assault, the false imprisonment tort has deep historical roots in the common law and is considered one of the basic legal measures of protection for the plaintiff’s bodily integrity, peace of mind, and essential dignity.Footnote ⁵ As two leading American tort theorists note, “[i]f battery promises to shield individuals from being wrongfully targeted for contact by others, false imprisonment promises to free them from others’ efforts to keep them located in a particular space.”Footnote ⁶

The basic doctrinal elements of the false imprisonment tort in the United States are summarized in the American Law Institute’s Restatement (Third) of Torts:

The most interesting aspect of the false imprisonment tort for purposes of this chapter is the requirement that the plaintiff must either be conscious of the confinement or physically harmed by it. That requirement appears to set up both a subjective and an objective path to recovery for the complainant.

On the subjective path, courts are quite clear that a false imprisonment claim may be pursued even though the confinement does not cause bodily injury, pain and suffering, emotional harm, or loss of opportunity.Footnote ⁸ Indeed, a plaintiff need not prove that she would have chosen to leave the area of confinement had she not been confined. Nor does the plaintiff need to show that she understood the confinement to be wrongful.Footnote ⁹ The nonconsequentialist underpinnings of this path to liability are strong. Even if a defendant believes that the confinement is in the best interests of the plaintiff or that the plaintiff will or should welcome the confinement, the actor is subject to liability if the confinement is not consented to or does not fall within a recognized defense. The essence of the wrong from this perspective seems to be the plaintiff’s cognitive experience of the sensation of being trapped, much as the essence of the wrong for an assault is the plaintiff’s visceral feeling of nearly being physically struck.Footnote ¹⁰

When a plaintiff is not conscious of being confined, they may still recover if they are “harmed” by the confinement. American tort law owes this path of false imprisonment liability to the influential scholar William Prosser, who authored a short article in 1955 arguing that even unaware plaintiffs ought to recover when a defendant confines them without permission. In Prosser’s view, through their confinement alone, “a tort of real gravity has occurred” against such plaintiffs.Footnote ¹¹ Some prior authorities had declined to recognize liability in these circumstances, apparently believing that relaxing the consciousness requirement altogether would lead to situations in which the strong medicine of intentional tort liability would be invoked for relatively trivial invasions. Yet, as Prosser noted, cases also could be found in which infants or adults with mental disability recovered for false imprisonment despite being arguably unaware of their detainment.Footnote ¹² The line, therefore, did not appear insuperable.

The Restatement (Second) of Torts, for which Prosser served as the chief architect, balanced these various positions by expanding liability beyond cases of conscious confinement but only if the plaintiff suffers actual harm from the restriction,Footnote ¹³ a compromise approach that, as noted above, continues in the more recent Restatement (Third) of Torts. Courts have not been entirely clear in specifying what kinds of “harm” qualify for liability under this alternative doctrinal path to recovery. The obvious cases for liability include physical harms such as malnutrition or medical deterioration during a period of unaware confinement.Footnote ¹⁴ Conversely, many authorities contend that an unaware plaintiff cannot recover if they suffer only emotional, economic, relationship, or dignitary harm as a result of the confinement.Footnote ¹⁵ As the Restatement (Third) of Torts puts it, the policy considerations in favor of recovery are weaker in the case of “someone who does not subjectively experience the loss of freedom at the time when she might have exercised it,”Footnote ¹⁶ and who does not otherwise suffer physical harm. The relative weakness of the deprivation in such circumstances becomes outweighed by tort law’s general interest in avoiding adjudication of what are deemed to be minor social disputes that could be resolved outside the courtroom.

Commentators have long questioned whether Prosser’s more liberal approach of abandoning the consciousness requirement altogether should have been adopted, with the answer hinging in part on how one conceives of the interest being protected by the tort. The essential question seems to be whether, in the words of three leading torts scholars, “false imprisonment is a tort protecting a psychological perception of autonomy and not simply the denial of personal autonomy.”Footnote ¹⁷ Writing in 1957, a New York state judge reasoned that:

This basic distinction – between a tort designed to protect one’s actual freedom from confinement and a tort designed to protect one’s sense of being free from confinement – has rarely been broached in case law. Only very unusual factual circumstances or limited categories of plaintiff victims are likely to present the case of a confinee who is both unaware and unharmed.

In the case of Scofield v. Critical Air Medicine, California courts faced a near example when presented with a false imprisonment claim brought on behalf of minor children who were seriously injured in an automobile accident in Baja, Mexico, that also killed their mother.Footnote ¹⁹ Upon learning of the accident and the extent of their injuries, which were too significant to be handled by the local Mexican medical facility, the children’s father directed that they be transported to a US hospital by a specific emergency medical air transport carrier. Instead, an opportunistic third-party carrier swept in and took off with the children by representing that they were the authorized company. Although the plaintiffs were unable to demonstrate any actual physical harm to the children or awareness by the children that they were traveling in an unauthorized emergency vehicle, the court nonetheless accepted testimony by the plaintiffs’ experts that the event was actually harmful to the children because their trust in authority was irrevocably shaken upon later learning that they had been airlifted illicitly. With respect to consciousness of confinement, the court concluded that false imprisonment requires only “knowledge of the restraint or confinement at some time, whether contemporaneous or subsequent, and resulting harm or damage,”Footnote ²⁰ a holding that departed from other authorities.Footnote ²¹ It appears significant to the court’s holding that the plaintiffs’ status as injured minors rendered the simultaneous consciousness of confinement requirement inapposite, given that they lacked the information or capacity to know at the time of being airlifted that they were being wrongfully transported. What should stand in place of that requirement, however, remains unclear given that courts do not appear ready to accept Prosser’s recommendation of fully abandoning the consciousness test. The Third Restatement of Torts, despite disapproving of the Scofield result and retaining the “sensible bright-line rule” of “either contemporaneous awareness or consequent bodily harm,” nevertheless equivocates while doing so: “if compelling cases arise in the future in which the cautious approach of this Restatement proves to be inadequate, courts have the ability to develop a more expansive liability rule.”Footnote ²² The remaining sections of this chapter explore one such compelling case.

19.3 Animals Imprisoned

To shed further light on the false imprisonment tort and the particular case of the involuntary but unaware prisoner, one might look to the case of nonhuman animal confinement. Billions of animals are held captive throughout the world in farms, zoos, aquaria, research labs, and other facilities,Footnote ²³ often in conditions that “cause inescapable physical or psychological suffering.”Footnote ²⁴ Except perhaps in the case of companion animals,Footnote ²⁵ no claim could plausibly be made that the animals have consented to their confinement, whether because they are deemed to lack capacity to consent or because their behavior reveals a rather strong objection to confinement.Footnote ²⁶ Nor is there doubt that the animals’ captors have confined them intentionally. Thus, if nonhuman animals were given standing to assert civil law claims on their own behalf in accord with the legal scholars’ brief in support of Justice the horse, the only potential barrier to false imprisonment recovery for captive animals would be whether they can demonstrate either consciousness of confinement or bodily harm.

The question of whether nonhuman animals have consciousness has been given extensive scientific and philosophical inquiry. In 2012, a group of international scientific experts sought to settle that question once and for all by issuing the Cambridge Declaration on Consciousness, which stated:

Other scientists and philosophers remain unconvinced,Footnote ²⁸ in part because the nature of consciousness itself – in human or nonhuman animals – remains imperfectly understood.Footnote ²⁹ Does consciousness merely indicate the status of being awake as opposed to being asleep or in a coma? Does it indicate the sensation of having mental states like pain or pleasure, fear or hunger, desire or disgust? Does it require a thicker phenomenological experience of being subjectively aware of one’s inner mental life? Does it require coupling that awareness with an even thicker conception of one’s self as the entity holding the awareness? It is one thing to debate whether studies on animal perception, memory, categorization, communication, self-recognition, and so on constitute evidence of animal cognition.Footnote ³⁰ It is quite another to grapple with the problem of other minds in other beings, as speculation about animal consciousness requires.Footnote ³¹

Perhaps the basic question of whether nonhuman animals have consciousness can be bracketed for the false imprisonment thought exercise: even if they can have consciousness, they may not be capable of having consciousness of their confinement. That is, they may not have subjective awareness of confinement in the sense of possessing a concept of confinement and an ability to fit their perception and experience of being restricted in movement with that concept. This line of questioning requires one first to be clear on what would constitute an adequate concept of confinement. Philosophers have helpfully distinguished between (1) a comparative conception of confinement which is “focuse[d] on the size relations between the area left accessible to the individual and the area rendered inaccessible to the individual,” and (2) an agential conception of confinement which “incorporates the purposes of the agent doing the confining.”Footnote ³² By focusing on the “additional exercise of dominion over the individual” which distinguishes captivity from confinement,Footnote ³³ one might helpfully isolate what is especially psychologically troubling about the subjective awareness of being imprisoned. The essence of the wrong from this perspective is the confined individual’s awareness of the denial of her status as a coequal being with rights of self-determination, including the freedom of movement.

Showing consciousness of confinement in this sense – that is, awareness of being intentionally detained by the will of a dominating power – would require first showing that nonhuman animals have a theory of mind with which they can attribute mental states such as intentionality to other individuals. A long line of research has attempted to address this question, with debate continuing over whether the findings demonstrate that animals make actual inferences about others’ mental states or simply respond to observed behaviors.Footnote ³⁴ Again, though, the debate can be put aside for purposes of the false imprisonment tort analysis because the tort only requires consciousness of confinement in the weaker, comparative sense. That is, as noted above, the false imprisonment plaintiff does not need to demonstrate awareness of the wrongfulness of her confinement. While knowingly being confined by a dominating agent (i.e., held captive) may be more psychologically troubling than merely being confined, tort law regards the latter awareness as adequate to state a false imprisonment claim.Footnote ³⁵

Can nonhuman animals have consciousness of their confinement in this weaker sense? Undoubtedly, confinement causes behavioral and physiological responses in nonhuman animals. Whether those responses also indicate conscious awareness of confinement seems less certain and may collapse back onto the more fundamental question of whether nonhuman animals have consciousness. That question in turn depends on how demanding one makes the definition of consciousness and the standard of proof required for demonstrating it. In the extreme, even the consciousness of other humans remains an unknowable phenomenon that enters our mental life in ways that are indistinguishable from dreams. Yet most of us do not embrace solipsism; instead, we live with the working assumption that others do have consciousness. That working assumption enables us to regard those others as beings with “values, preferences, aims, principles, autonomy, and personal beliefs.”Footnote ³⁶ That regard in turn enables us to see them as subjects who matter, who hold interests, and who can make a claim on us to treat them accordingly. It is curious that this working assumption is not generally extended to nonhuman animals, as evidenced both by the philosophical tradition of mechanism that extends from Descartes to today’s laboratories and industrial farms, and in the Anglo-American legal tradition that generally regards nonhuman animals as mere objects of possession, rather than as subjects with interests and entitlements. This is not to suggest that nonhuman animals lack consciousness as an actual fact, but rather that – for purposes of legal analysis – the deck is stacked against that conclusion.

One area in which the law has evolved to offer greater protection for nonhuman animals is in the area of anticruelty statutes, such as the Oregon laws that were used to prosecute Gwendolyn Vercher.Footnote ³⁷ Whether these laws unequivocally recognize nonhuman animals as subjects with their own entitlements is historically debatable and still varies from jurisdiction to jurisdiction.Footnote ³⁸ In many cases, the laws seem animated by a concern over how animal cruelty impacts humans and the manner in which humans treat one another, rather than with interests of the nonhuman animals for their own sake.Footnote ³⁹ Nevertheless, the focus of such laws is on the treatment and well-being of nonhuman animals, which suggests that a more sure route to recovery for the nonhuman false imprisonment claimant may be to focus on physical harm, rather than on consciousness of confinement. After all, ample scientific evidence establishes that negative welfare effects occur in animals from being confined depending on the species involved and the conditions of confinement. Even without overtly inflicted pain such as through vivisection or animal husbandry practices, harm may still result through confinement alone in the form of weight loss, chronic stress, lethargy, aggression, compulsive pacing, self-mutilation, and so on. Such harms typically do not suffice to establish an animal-cruelty violation in the case of animals confined for agriculture, research, or entertainment, either because the relevant statute exempts such animals entirely from coverage or because the harms would not be considered “unnecessary” in light of the benefits to humans generated from the confinement and use.Footnote ⁴⁰ For the false imprisonment tort – assuming it was made available to nonhuman animals – no such exemptions would be available to the defendant. Intentional confinement that results in bodily harm alone would suffice to establish liability and no amount of offsetting benefit could excuse the violation. Because “keeping animals in actual captive conditions often causes them to suffer injuries and other physical harms,”Footnote ⁴¹ it would seem initially that a great many captive animals could successfully press their false imprisonment claims. For instance, consider the case of a cetacean stolen from the wild and forced into a decades-long life of isolation and confinement for the amusement of aquarium visitors. That scientists may advise against releasing her into the wild following her lengthy incarcerationFootnote ⁴² should not detract from the fact that her particular life course has been irreparably altered and harmed due to her confinement.

A potential problem for some classes of nonhuman claimants may be that the harm-based branch of false imprisonment liability is amenable to different accounts of the relevant baseline of well-being.Footnote ⁴³ On many of these accounts, despite suffering harm through captivity, the animal may still appear to be better off overall, giving rise to what Lori Gruen aptly terms “dilemmas of captivity:”

Although some criticize this “wilderness baseline view” as setting “an implausibly low standard,”Footnote ⁴⁵ it is not hard to imagine a court finding refuge in its logic when faced with a false imprisonment claim on behalf of zoo, sanctuary, or companion animals. For instance, an analysis of more than fifty mammal species found that 84 percent lived longer in zoos than in the wild, a disparity the researchers attributed to protection against disease, competition, and predation afforded by zoos.Footnote ⁴⁶ A court might easily cite such research as evidence that confinement, at least in certain facilities such as zoos, does not lead to a welfare detriment over existence in the wild. Even for those species that would have lived longer or more fulsome lives had they been born outside of captivity, there remains the problem of adaptation: for captive-bred animals, release into the wild may not be beneficial to their particular life courses, even if a wild existence would have been preferable in the abstract.Footnote ⁴⁷ Unlike the cetacean referenced above who was caught from the wild, the captive-bred animal does not have ready recourse to a counterfactual life of nonconfinement. Their counterfactual instead is one of nonexistence. Similarly, when presented with the claims of domesticated farm animals, it is hard not to see a court cabining the harm analysis by noting that the animals would not exist at all but for their domestication, confinement, and use by humans. From that perspective, it would seem that – so long as their lives are minimally worth living – such animals have not been harmed in a causal sense by being bred into a confined existence. Confinement is their existence.

Are the lives of captive-bred animals minimally worth living – not for us, but for them? The question throws us back into the vagaries of consciousness and the dilemma of whether we can ever know what it is like to be a Milking Shorthorn.Footnote ⁴⁸ When we regard the lives of animals on industrial farms as miserable and perhaps not worth living, we do so inevitably through our subjective viewpoint and without direct access to theirs. To be sure, the practices of industrial animal agriculture are sufficiently brutal as to make compelling the thought that many livestock animals would be better off dead, whether or not we can inhabit their consciousness when facing the question. But in the analogous context of “wrongful life” claims brought by human plaintiffs, where a physician’s negligence is alleged to have caused a parent to lose the opportunity to terminate a pregnancy that results in a severely disabled child being born, courts have shown great reluctance to engage the question of whether the child is worse off for having been born. Such claims, which are brought in the name of an infant for its own alleged damages, require courts to “compare the value of nonexistence – the state that [a child] would have been in but for defendants’ alleged negligence – and the value of his life with [a condition or disability].”Footnote ⁴⁹ Courts routinely decline to engage in such searching philosophical analysis: “[s]imply put, as a matter of law, that comparison is impossible to make.”Footnote ⁵⁰ Given such reticence in the human “wrongful life” context, one suspects that courts would likewise balk in the nonhuman context and instead simply hold that captive-bred animals have not been harmed so long as their captors comply with minimum applicable animal protection statutes and regulations. Especially considering the vast economic and political stakes involved in deeming industrial animal agriculture tortious, the tendency of courts to outsource decision-making responsibility to the other branches of government in such a manner would be great.Footnote ⁵¹

Harm in the sense of being better off not existing at all is harm of a philosophical rather than a physical character. As noted above, in all but the rarest of cases, courts have been reluctant to extend the concept of harm beyond tangible bodily injury in the false imprisonment context. Returning to the case of Scofield v. Critical Air Medicine is instructive. In that case, the court credited expert testimony that the children suffered subsequent psychological harm upon learning that their emergency medical transport was unauthorized. But this ground felt somewhat speculative,Footnote ⁵² and the court went on to note that, in California, the minor plaintiffs could recover for nominal damages even without a showing of actual harm. False imprisonment, the court stressed, is a “dignitary tort,” and the “purely nominal” harm of being denied one’s “personal interest in freedom from restraint of movement” suffices to support liability.Footnote ⁵³ Although the court did not go this far, its reasoning would seem to support recovery for the unharmed plaintiff who never becomes conscious of her confinement, whether contemporaneously or subsequently. As argued in the next section, the dignity impairment in such a case would take on a new structure, one that might be of relevance to confined nonhuman animals.

19.4 The Indignity of Confinement

The false-imprisonment tort remains inchoate and confused because it rests on a dichotomy of freedom and confinement that is inadequate to the normative task it is being invoked to resolve. The Restatement (Third) of Torts discounts the unaware victim of false imprisonment as “someone who does not subjectively experience the loss of freedom at the time when she might have exercised it.”Footnote ⁵⁴ But whether she holds a freedom of movement to exercise in the first place depends in substantial part on what forms of restraint the law will recognize as wrongful. Her lack of subjective awareness of the deprivation is made to seem more significant – and damning to her claim – because tort law has defined her experience from the outset as not being one of real deprivation. This circularity becomes unsettling when the false imprisonment doctrine is applied to those individuals who cannot be imagined ever to meet the standards of the doctrine, whether because of age, impairment, or innate characteristics. In such cases, the alterity of the other living being – and the possibility that they might flourish in ways other than standard humanistic ideals of autonomy and self-determinationFootnote ⁵⁵ – is not seriously considered. They appear to us as mere “moral patients” rather than moral agents, worthy of some “moral attention and concern”Footnote ⁵⁶ but not as fully agentic equals.

The fact that power and domination exist in the world and are used to confine living beings is unsettling, whether or not those others are aware of their treatment or are tangibly harmed by it. In his Essay Concerning Human Understanding, John Locke posed the case of someone who was carried, while deep asleep, into a room where they woke to find a person who they had longed to see and speak with, which they immediately did upon waking. Unbeknownst to the individual, the room the two were in was locked and their freedom of movement curtailed. Locke asked whether their liberty has been violated, despite their lack of awareness. His answer is telling as it focuses attention unequivocally on power and control by the confiner, rather than on the capacity and psychological awareness of the confined:

Here we learn much from thinking with animals. Even if we grant the deflationary case that animals do not have consciousness or preferences such that they can be aware of or object to confinement, and even if we accept the skeptical view that many captive animals are not harmed physically in comparison to their most likely alternative existences, we might still accept the argument made by leading animal ethics theorists that the dignity of animals is impaired when they are confined in ways that are inconsistent with their essential being.Footnote ⁵⁸ Confinement forecloses full realization of “the unique capacities that other animals possess,”Footnote ⁵⁹ depriving both the animal and the world of the fullness of their existence. The elephant born and reared in captivity may not know that her wild counterparts live a different reality, roaming many miles a day in complexly interrelated and communicative herds. But the counterfactual seems to demean her existence, whether or not she knows. The fact that she might not have lived at all but for the confinement does not forgive the insult.

The philosopher Angela Martin argues that nonhuman animals are not the kinds of beings that can be wronged in the manner just described. In order to be disrespected, she argues, someone must act toward another in a way that is inconsistent with their preferences. Because most animals are not capable of forming preferences, she asserts, they cannot be humiliated or disrespected.Footnote ⁶⁰ From this perspective, the harm that arises when nonhuman animals are placed in conditions of un-freedom might not be a harm that is personal to the individuals confined. Instead, it might be a harm that accrues to all of us from witnessing their condition of indignity. Lori Gruen’s notion of relational dignity is useful here: “Rather than focusing on the worth of individual rational agents making autonomous choices, a relational conception of dignity brings into focus both the being who is dignified and the individual or community who value the dignified in the right ways.”Footnote ⁶¹ As Gruen further observes, “[d]ignity, understood relationally, can be compromised or undermined even when the individual whose dignity is at stake does not object or complain”Footnote ⁶² – or, one might add, even when the individual does not have awareness of the treatment or condition that insults their dignity. From this perspective, the locus of concern in the case of the unaware victims of confinement may be less the harm that inures to them and more the harm that visits those of us who bear witness to their deprivation and who shoulder the responsibility of deciding their fate without recourse to familiar liberal concepts like autonomy, preference, and choice.Footnote ⁶³

In the liberal individualist tradition of the Anglo-American legal system, such relational or collective sentiments find little purchase. To illustrate how far removed mainstream legal thought is from the philosophical tributaries explored in this chapter, two closing examples from the Restatement (Third) of Torts are offered. First, in acknowledging the worrisome gap created by the false imprisonment doctrine’s requirement of either bodily injury or consciousness of confinement, the volume notes:

The use of the term “free prey” was likely innocent. But it is hard not to extend that language to, say, industrial farm animals who are indeed deemed “free prey” by the legal system so long as minimal standards of harm-prevention are maintained prior to their slaughter.Footnote ⁶⁵ Such denial of agency and personhood may be more troubling in the case of differently abled human subjects, but it does not eliminate entirely the trouble with respect to nonhuman animals. Whenever a legal system denotes living beings as “free prey,” a profound exercise of power has occurred.

Second, a hypothetical illustration from the Restatement (Third) of Torts is particularly revealing:

Edward and Peter are both human subjects. Peter may well be in danger; we do not know from the facts of the hypothetical because we are not told what other animals share the cage with Peter. But these missing facts do not matter because the law sees Edward as a complete stranger who bears no responsibility for Peter’s confinement and therefore holds no duty to assist Peter toward safety and liberation.

Putting aside the dissonance in the illustration’s failure to acknowledge the layers of human and nonhuman confinement, the hypothetical even on its own terms shows how far humans are willing to pursue the fantasy of self-determination. The maximal freedom afforded to Edward to pursue his life course without being interrupted by the needs of others apparently includes the freedom to become a moral monster, if he so chooses. Unlike the inarticulate pleas issued by encaged nonhuman animals, Peter’s call for help is unmistakable and directed personally at Edward. Still, an accommodating legal system helps exonerate Edward from responsibility by defining Peter a priori as a stranger and by viewing Peter’s act of dropping the keys as the proximate cause of his just deserts.

This airtight system of right and responsibility – a system “so perfect that no one will need to be good”Footnote ⁶⁷ – is haunted by those living beings who fail its criteria for full membership, yet whose existence still makes an undeniable claim on our concern. To identify “false” imprisonment, one might instead begin by asking what constitutes “true” or lawful imprisonment. To ask that question, though, is to raise fundamental issues regarding the state’s membership and legitimate scope of authority, including how it came to be that nonhuman animal confinement is presumed to constitute “true” imprisonment absent some extraordinary showing to the contrary. The case in favor of the existence of animal consciousness and the grave welfarist and dignitary impairments caused by animal confinement is strong, yet the legal system has ample intellectual reserves with which to parry such conclusions and to construct nonhuman animals instead as “free prey.” Whether or not they are conscious of their confinement or physically harmed by it, however, nonhuman animals are confined, and their lives are accordingly limited and directed by human power. The more pressing consideration should therefore be our consciousness of their confinement and how we choose to respond to it.

19.5 Conclusion

A central puzzle of Anglo-American false imprisonment law is how to explain why no legal recourse exists for an individual whose dignity is denied through confinement but who is neither conscious of the confinement nor harmed by it. A possible answer to that puzzle can be found in the experience of nonhuman animals and the indignity that we all experience when we contemplate seriously their lot. The fact that we cannot at present identify a legally eligible individual within which to locate the harm suffered by confined nonhuman animals should not be taken to mean that the harm is not real. Instead, it should cause us to question the reality of our framework for identifying and locating harm.

Robert Meeropol has dedicated his life to supporting political activists who have been targeted by the government. It is a calling one might say was inevitable; as a child his parents, Julius and Ethel Rosenberg, were convicted of spying for the Soviet Union and executed by the United States at the height of McCarthyism and the Red Scare.Footnote ²

In 1990, Meeropol created the Rosenberg Fund for Children to aid the families of progressive activists who have faced political repression related to their advocacy. The group has provided more than $7.5 million in small grants to help families pay for expenses such as school tuition, therapy, and travel costs related to visiting family members in prison.Footnote ³

His organization functions much like a nondenominational church shelter for social justice struggles, opening its doors wide to those under attack, regardless of the social movement from which they come. “When people turn their backs on those they feel have been imprisoned for being too militant, it reminds me of my parents’ case,” Meeropol says.Footnote ⁴

In the early 2000s, Meeropol went to his members as he had so many times before, to enlist their support for a new wave of activists under attack. “They are attempting to intimidate this movement just as they attacked the communists, anti-war, civil rights…and other movements before them,” he argued. “This is part of a larger corporate strategy to have law enforcement treat all progressive activism as a form of terrorism.”Footnote ⁵ If we allow these activists to be treated as terrorists, he argued, then any other cause could be next. When Meeropol told his members who he wanted to support – animal rights and environmental activists – he says he was often met with a “blank look.”Footnote ⁶

Some of his members said they were afraid to align the organization, and Meeropol’s parents, with those labeled “eco-terrorists.” “Others on the Left, although not necessarily members of the RFC community, have characterized environmental and animal rights activists as self-indulgent, well-off white kids who seem more concerned with trees, birds, and puppies than they are with worldwide human suffering.”

Whether it was because of their tactics or their beliefs, many longtime progressive activists felt these animal rights and environmental activists just did not belong. “I’ve had difficulty convincing left-wing friends to support targeted animal rights activists,” Meeropol says. “One friend responded, ‘aren’t they the people who think animals are more important than people?’”Footnote ⁷

20.1 Carceral Logic and Social Movements

For more than 50 years, the animal rights and environmental movements have been targeted with increasingly draconian campaign of political repression. As I documented in my book Green Is the New Red: An Insider’s Account of a Social Movement under Siege, the term “eco-terrorism” was itself created by anti-environmental groups to smear their opponents in the 1980s, and over subsequent decades a coalition of corporations and trade associations successfully lobbied both lawmakers and the FBI to criminalize animal rights and environmental activists as “domestic terrorists.” In the wake of the attacks of September 11, 2001, these anti-activist campaigns intensified dramatically. By 2005, the FBI was publicly declaring that animal rights and environmental activists were their “number one” domestic terrorism priority.Footnote ⁸

No other contemporary social struggle has been as targeted by state and corporate power as “terrorists,” as we will explore further in this article. And yet for decades, these precedent-setting expansions of police, surveillance, and prison powers have gone largely unnoticed, ignored, and even approved by civil rights and civil liberties organizations.

Alongside colleagues in this volume who are exploring connections between what might loosely be described as the caging of humans and animals, I am interested in similar questions in relation to the study of political repression – the caging of social movements.

20.2 Solitary Confinement

Humans are a social species. When placed in isolation, we suffer in extreme ways both physically and psychologically.

In prison, placing someone in solitary confinement is often described with a variety of euphemisms to mask its cruelty: “segregation,” “the hole,” “lockdown,” “social exclusion.” The practice is rampant in US prisons. The UN Special Rapporteur on torture noted in alarm that US prisons “routinely resort to repressive measures, such as prolonged or indefinite isolation.”Footnote ⁵⁷

A 2020 report from UN Human Rights said that the use of solitary confinement is so pervasive in prisons that it could amount to torture. Being placed in solitary confinement for long periods of time, its authors noted, can have “severe and often irreparable psychological and physical consequences.”Footnote ⁵⁸

When we are removed from each other, we lose our ability to make sense of the world, process information, and function. Isolation can sicken social movements in similar ways.

The separation of the animal rights and environmental movements from the broader civil rights and civil liberties community has facilitated government repression, and left generations of new political activists unaware of post-9/11 mechanisms used by corporations and law enforcement to silence protest.

The rapid emergence of Black Lives Matter as an international movement, for example, was met with an equally swift clampdown on the movement. The militarizations of police, restrictions on protest, counterterrorism rhetoric, civil lawsuits, and other repressive measures framing these activists as “domestic extremists” and “terrorists” was shocking for many activists. However, none of this should have been a surprise. It should have been expected.

The suite of repressive measures used against animal rights and environmental activists have become the new playbook for the criminalization of dissent. Activists of all social movements, globally, need to understand these counterattacks, and be prepared to face them.

What would it look like, then, to end this “social exclusion”? The collaboration involved in creating this volume is one example of what that process might entail. Human rights and animal rights advocates discussing their fields in tandem find common ground not only in their research findings and cruelty inflicted upon their clients, but in the institutional opposition they face.

A trove of leaked documents from Amazon’s Global Security Operations Center, for instance, revealed widespread spying and disinformation campaigns against both labor and environmental groups.Footnote ⁵⁹ FBI training materials and PowerPoint presentations have been updated to routinely describe “eco-terrorists” alongside a more recent threat: “black identity extremists.”Footnote ⁶⁰

Whether or not we view animal rights activists as civil rights activists, and regardless of how we characterize the divisions within and between social justice movements, at minimum we must acknowledge that our opponents rarely make such distinctions.

Historically speaking, when social movements emphasize their differences and disagreements, rather than shared values, it has repeatedly been used as a tool to accelerate state repression.

As Robert Meeropol of the Rosenberg Fund for Children noted:

20.3 “Steroids for Fascism”

This is a conversation we can no longer afford to ignore. Two global crises will soon force us to confront this disconnect, whether we agree or not. Authoritarianism is on the rise, globally, and the increasing threat of climate change and ecological collapse is already being used to close borders and accelerate concentrations of power. As Gizmodo noted, the “climate crisis will be steroids for fascism.”Footnote ⁶¹ Meanwhile, far-right groups have begun using environmentalism and “eco-fascism” to promote white nationalism.Footnote ⁶²

As I write this, fascists – including well-documented white supremacists and Neo-Nazis – have stormed the US Capitol. In the wake of this failed coup attempt, the incoming Democratic administration has vowed to make “domestic terrorism” a priority. Biden’s pick to lead the Justice Department, Merrick Garland, has pledged to fight “violent extremism” as US attorney general.Footnote ⁶³

“Don’t dare call them protesters,” incoming president Joe Biden said. “They were a riotous mob. Insurrectionists. Domestic terrorists. It’s that basic. It’s that simple.”Footnote ⁶⁴

The Biden administration has vowed to create a new “domestic terrorism” law and is considering a new White House post to oversee the fight against “overseeing the fight against ideologically inspired violent extremists and increasing funding to combat them,” according to the Wall Street Journal.Footnote ⁶⁵

Incredibly, the widespread failures of law enforcement to prevent a white nationalist mob – which had been promising to do exactly this for months – are being attributed to miscommunication and inadequate resources. The FBI has told the incoming administration that it needs more FBI and Homeland Security officers, and more domestic terrorism authority.Footnote ⁶⁶

It may be tempting for progressives to support an expansion of domestic terrorism policy in response to the far right. However, we must remember that the FBI has had these powers and abused them for decades. It has repeatedly ignored warnings about right-wing violence and instead defended its focus on nonviolent social protesters, namely, animal rights and environmental activists.

Historically, the FBI was founded as an institution to target the left and has been at the forefront of efforts to oppose every major progressive social movement of our time.

More broadly we need to understand that the very nature of political repression, “counterterrorism,” or any coordinated campaign by the state and industry will always be used disproportionately against the left.

Carceral logic will never be used by the state to advance social justice, and it certainly will not be used to target the far right. A carceral civil rights movement – one that calls for more police, more prisons, more terrorism powers, all the while trusting the state to only use its powers to target others, whether it is the animal rights movement or the far right – is only building its own gallows.

Imagining animal and environmental activists as a civil rights movement is not just a theoretical discussion of the nature of social change, and it is not a plea for assistance or ideological cohesion. This is a warning.

If we continue to ignore the precedent-setting draconian attacks on the animal rights and environment movements, and how they are sentinel species for other social movements challenging state and corporate power, then it will be at the shared peril of human and animal rights alike.

During the afternoon of April 20, 2021, people across the United States were tensely waiting to learn what the Minneapolis jury would decide in the murder trial of former police officer Derek Chauvin. Chauvin was being tried for killing George Floyd after pressing his knee into the back of Floyd’s neck for nine minutes and twenty-nine seconds while he was facedown on the pavement. Due to the COVID-19 pandemic, a trial that would only have been witnessed by family and other locals was televised nationally and reported on every night in great detail. After millions watched Chauvin kill George Floyd on video, taken by teenage witness Darnella Frazier, Black Lives Matter protests and calls to abolish and defund the police occurred across the country, sometimes met with police and vigilante violence.

As the judge read out the verdicts on the three charges against Chauvin, second-degree murder – guilty; third-degree murder – guilty; and second-degree manslaughter – guilty, there was a collective national sigh of relief. But the reaction was also more emotional. Television news cut away from regularly scheduled programming to broadcast some of the reactions. The Congressional Black Caucus members were shown huddled together looking at their phones and other devices, nodding and hugging as they listened to the verdicts. Citizens outside the courthouse, also watching on their phones, cheered. Fists were raised high, many people looked up to the heavens in gratitude, people held each other, and some broke down in tears.

It is undeniable that many people felt deeply gratified by the carceral response to Chauvin’s callous cruelty. There is a long list of police officers who have not been arrested, tried, and convicted of horrible crimes against Black people, and this history certainly contributed to the anxiety that people felt about whether “justice would be served” in the killing of George Floyd. Interestingly, almost immediately after the verdict was announced, many argued that this did not amount to “justice” but rather “accountability.” Minnesota’s attorney-general, Keith Ellison, who led the prosecution of Chauvin, said “I would not call today’s verdict ‘justice’ because justice implies true restoration.”Footnote ¹ President Joe Biden, noted that:

While the jury returned a guilty verdict, holding Chauvin legally accountable, genuine accountability doesn’t seem to capture what resulted from convicting Chauvin. As abolitionist Danielle Sered has argued,

Connie Burk has suggested that, “Accountability is not something that happens to bad people. Accountability is a human skill. It is a skill that each of us must commit to developing as an internal resource for recognizing and redressing the harms we have caused to ourselves and others.”Footnote ⁴ In this more robust sense, Chauvin’s verdict is not accountability, it is not justice, it is a legal judgment of wrongdoing that will lead to his incapacitation.Footnote ⁵

The desire to punish wrongdoers through courts and prisons motivates “tough on crime” policies. Citizens often feel that the violence they have suffered needs to be publicly recognized, and the courts become the place for that recognition. This desire for court recognition of violence done to animals is becoming more prominent in the realm of animal law.Footnote ⁶

One example is from the state I live in, Connecticut. In 2012, a twenty-two-year-old man, Alex Wullaert, strangled his dog, Desmond, after Desmond peed on him and bit him. He then dumped Desmond’s body, which was later found and reported. Desmond was microchipped, and that is how Wullaert was located. There were a number of hearings and continuances, and at each one, animal activists protested outside the court seeking the maximum sentence, which could have been five years in prison. Wullaert was ultimately sentenced to a rehabilitation program and the activists were furious. Some yelled, some cried. They began organizing for harsher penalties, and in 2016, then-Governor Malloy enacted “Desmond’s Law,” the first law in the country that allows animal advocates to testify in animal cruelty cases. Proponents of the law have suggested that they don’t see the law as promoting increased carceral responses to animal abuse,Footnote ⁷ but the motivation for the law was to punish wrongdoers that harm animals like Desmond, and state punishment is carceral. Representative Diana Urban who sponsored the law, makes this carceral response explicit – the reason she sponsored the animal advocates law was to see higher sentences.Footnote ⁸ Two years after the law was passed, Robin Cannamela, the president of the group that rallied around Desmond’s Law, known as “Desmond’s Army” said that the law is making an impact. “Since Desmond’s Law, we have seen a significant increase in jail time.”Footnote ⁹

The heinousness of the murder of George Floyd, the horrible cruelty of Desmond’s demise, and the tragedies that have befallen so many others due to senseless violence and death generate visceral, often understandable, demands for strong punitive state action. But as the Chauvin and Wullaert verdicts show, justice is rarely, if ever, what the legal system can produce. The idea of “justice” has deep philosophical roots, and while an easy way to understand justice is to reduce it to whatever it is that the “justice system” metes out, it is a more nuanced notion. There are many different ways to understand justice – as a virtue, as a feature of institutions or whole societies, as an ideal. Justice can be applied to the distribution of goods in a society, justice can be applied to policies that impact disadvantaged groups, justice can be thought of as a way of addressing systematic discrimination. I don’t have space in this chapter to argue about what the best conception of justice is,Footnote ¹⁰ but for present purposes, I will understand justice as a type of empathetic fairness; justice is sensitive to the ways in which inequality of resources and opportunities limit what is fair to demand of others. Justice, in the variety of ways it is understood, tends to provide one with what they are due, and I agree, if this is understood in the actual contexts in which people live.Footnote ¹¹ In most instances, the criminal “justice” system isn’t addressing justice at all, rather as we see in the judgment against Chauvin, it is punishment, even vengeance, that, perhaps unwittingly, motivates the ongoing commitment to an imperfect, undemocratic carceral system that has caused so many men, women, and children to suffer and die in prison.

In this chapter I will discuss prison abolition as presenting both a critique of and an alternative to the criminal legal system. I will first present a brief history of the idea and practice of abolition in its various forms. I will then address two criticisms that have been made against prison abolition – that it doesn’t adequately acknowledge the “victims” of harm and that it is naïve or utopian. I will end by discussing how recent trends in animal law that increase carceral responses to cruelty to animals are wrongheaded and urge those who care about animals, equity, and freedom for all to work toward alternatives to the violence of mass incarceration through a care ethics of abolition.

21.1 Forms of Abolition

The term “abolition” is best known in the context of opposition to the Atlantic slave trade in which Africans and those of African descent were denied personhood. Early abolitionists were opposed to the violent accumulation of wealth due to forced labor. According to Manisha Sinha, abolitionists, though primarily focused on resisting slavery, had wide reaching concerns. Many early abolitionists

Abolitionists included those who were enslaved and those recently freed, as well as members of communities that were implicated in the slave trade, including African people, British and Spanish people, and religious people, most notably Quakers. Quaker abolitionists in the United States, including John Woolman and Joshua Evans, traveled the country to speak out against slavery and express “concern for Native Americans, animal abuse, violence and war.”Footnote ¹³

With the abolition of slavery, after the Civil War, many abolitionists were actively reimagining how to bring the ideals of democracy into fuller practice. W.E.B. Dubois, in Black Reconstruction, noted that “abolition-democracy” demanded the structural reform of labor, education, and opportunities.Footnote ¹⁴ It wasn’t enough to emancipate Black people from slavery; many envisioned building a free and equal society in which the disadvantages that emerged from the system of slavery were not permanent. But this wasn’t to be. The end of Reconstruction and the reimplementation of Black Codes, further perpetuated forms of unfreedom for Black people. For example, they could be prosecuted for not carrying proof of employment, leading to incarceration and with it, forced labor. In the South, “convict leasing” put the growing population of Black prisoners to work. Dubois, quoting from a “Southern white woman” notes:

As the shocking conditions of convict leasing became widely known, pressure built to end the practice and one by one Southern states didn’t renew or initiate leases. Alabama was the final state to end convict leasing in 1928. The “abolition” of convict leasing, like the “abolition” of slavery, didn’t end the extraction of uncompensated labor from Black people. As has been popularized in Ava DuVernay’s 2016 film 13th, the exploitation of prisoners as laborers, legally written into the US Constitution, continues to this day; incarcerated workers receive, on average, fourteen cents/hour at the low end and one dollar and forty-one cents/hour at the high end.Footnote ¹⁶

Not long after the publication of George Jackson’s Soledad Brother, and his death trying to escape prison, Quaker prison abolitionists, led by Fay Honey Knopp, published Instead of Prisons in 1976. The first chapter in the book lists quotations from lawyers, judges, prisoners, those employed or formerly employed by prisons, authors, activists, and others who all condemn prisons. For example, in the minutes for the 1870 Congress of the American Prison Association, it is reported that “Judge Carter, of Ohio, avowed himself a radical on prison discipline. He favored the abolishment of prisons, and the use of greater efforts for the prevention of crime.”Footnote ¹⁷ In 1938, Columbia University professor Frank Tannenbaum, in his book Crime and the Community wrote: “We must destroy the prison, root and branch. That will not solve our problem, but it will be a good beginning…Let us substitute something. Almost anything will be an improvement. It cannot be worse. It cannot be more brutal and more useless.” Writing in the New York Times Magazine on January 30, 1955, the former head of the psychiatric clinic at Sing Sing prison wrote: “We profess to rely upon the prison for our safety; yet it is directly responsible for much of the damage that society suffers at the hands of offenders. On the basis of my own experience, I am convinced that prisons must be abolished.”Footnote ¹⁸ In some ways calls for abolition, of slavery, of convict leasing, and of prisons are continuous.

Between 1990 and 2005, the number of state and federal prisons rose 43 percent. As the prison boom was growing in California, Ruthie Gilmore, Angela Davis, and others formed the abolitionist organization Critical Resistance to oppose what they called the prison-industrial complex (PIC).Footnote ¹⁹ But calls for prison abolition began before the era of mass incarceration.Footnote ²⁰

“Abolition” has also been invoked in the animal protection/liberation movement. Activists have demanded that we “abolish zoos” or “abolish fur.” Animal law professor and activist Gary Francione has developed a perspective on animal rights that he calls “the abolitionist approach.”Footnote ²¹ This approach calls for the abolition of all animal exploitation. In particular, the abolitionist approach acknowledges that other animals have one right: the basic right not to be treated as the property of others. And it is on the basis of recognition of this right “that we must abolish, and not merely regulate, institutionalized animal exploitation – because it assumes that animals are the property of humans.” In calling themselves abolitionists, and demanding the right not to see animals as property, the abolitionists in the animal movement are drawing a parallel between the treatment of animals and the institution of racial slavery.

But, unlike the seeming continuities between the abolition of slavery and the abolition of prisons, there are dangers associated with using abolitionist language in the animal context. Any project that makes comparisons between people and animals that fails, as Claire Jean Kim writes, to question “the difference between slave and animal…how recognition of this difference was built into law and practice…and how this shaped the forms of violence and coercion inflicted upon slaves and animals, respectively”Footnote ²² is flawed. Animal abolitionist projects (and this goes beyond just Francione’s abolitionist approach, including some of PETA’s campaigns and centrally, in the legal arena, the work of the Nonhuman Rights Project) tend to erase the specific harms of slavery on the enslaved people, perhaps unwittingly, recasting the slave as an animal or property, as a way of challenging property status.

The animal abolitionists seem to suggest that with the end of slavery, that is, no longer categorizing Black people as property, the institutions of anti-blackness and the afterlives of slavery cease to be as problematic, making animal freedom the next frontier.Footnote ²⁴ Put differently, legally changing the status of Black people from property to persons did not accomplish for Black people the imagined freedom that animal abolitionists hope to bring about for animals.

There is a way of imagining animal abolitionism that does not succumb to the dangers of false comparisons, erasure, and imagined teleological successes toward Black freedom. The way to do this is to see the work against anti-blackness and against animal exploitation as part of the same abolitionist project. Black liberation and animal liberation can better see the structures of power they are independently resisting and better imagine a more just world by critically engaging with the white “humanist” assumptions at the heart of hierarchies of worth. Abolition in the prison context is a particularly apt place to locate the critical links between dehumanization and deanimalization. As Lisa Guenther writes: “intercorporeal relations are vital for both human and nonhuman animals…The problem with intensive confinement is not just that it treats human prisoners like animals, but that it fails to treat them like animals, where animals are understood as living beings whose corporeal and intercorporeal relations with other living beings”Footnote ²⁵ are crucial for having a meaningful life.

21.2 Reactions to Prison Abolition

Abolition evokes a variety of reactions ranging from incredulity and disdain to curiosity and excitement. These reactions also vary depending on audience and the context in which the topic of prison abolition is being raised. When questions about alternatives to prisons are posed that don’t mention the word “abolition” there appears to be tremendous support among the public. For example, the ACLU conducted a survey in 2017 that found that 61 percent of Americans believe that people who suffer from drug addiction and commit serious crimes don’t belong in prison but should receive treatment.Footnote ²⁶ And 87 percent believe that when people with mental health disabilities commit crimes that involve violence, they should be sent to mental health programs where they can receive treatment from professionals.Footnote ²⁷ Such strong public support for noncarceral responses to violent crimes are welcome in a country like the United States that, as of this writing, locks up over 2 million people. And as Joy James has noted, abolitionist alternatives to prison are already available for “those with wealth and power: existential whiteness, money or capital and connections to governing elites. Elite ‘offenders,’ if prosecuted and convicted, are largely redirected to therapy, counseling, drug treatment and expensive residential treatment centers.”Footnote ²⁸

Though some abolitionist alternatives to incarceration are generally accepted and already in practice for a privileged few, more often than not, people have the mistaken view that abolitionists would like to see the immediate closing of all prisons. Perhaps that is what some abolitionists imagine, like the immediate end to slavery and the immediate end to killing animals for fur, but for the most part what abolitionists want is to immediately end our acceptance of punitive responses to crime and begin imagining alternatives. In a society like ours, organized by profound inequality, releasing people who have nothing into a world in which resources for reentry are absent, has the likelihood to create more harm. This is one of the reasons why abolitionists work to develop more just and meaningful social policy that will help support community needs and build alternative, humane institutions. These efforts involve promoting “nonreformist reforms” that allow for the development of policies and practices that minimize harms, while not contributing to or reinforcing the harmful prison system.Footnote ²⁹

There are a number of examples of reform efforts that are consistent with the ultimate goal of prison abolition; these include ending solitary confinement and the death penalty, working to stop the construction of new prisons and the creation of more beds to fill, fighting the expansion of surveillance, providing educational opportunities for incarcerated people, mutual aid for communities, and more. As Mariame Kaba suggests, nonreformist reforms are “those measures that reduce the power of an oppressive system while illuminating the system’s inability to solve the crises it creates.”Footnote ³⁰ Calls for more humane treatment, better training for police, and releasing “nonviolent” offenders are reforms that don’t challenge the system and would be rejected by most abolitionists as they will simply make the current cruel system a bit more tolerable. Abolitionists, while working to improve everyone’s health and safety, ultimately hope to eliminate not just prisons that have “come to seem natural and inevitable,”Footnote ³¹ but to expand our imaginations to allow us to envision a more caring, just society.

21.3 A Care Ethics of Abolition

Allegra McCleod, in her discussion of developing a prison abolitionist ethic, writes:

Protecting the vulnerable in communities, particularly those who are not in any way a part of potentially dangerous or violent activities, is a very real ethical concern that abolitionists must address. In the ethics literature, there is a division made between “an ethics of justice” and “an ethics of care,” where the former focuses on the application of abstract principles and the latter is concerned with making our social as well as personal relationships better. Unfortunately, this distinction, like so many others, has led many theorists to think that care is opposed to justice, when in fact, an ethics of care is very much concerned about justice, but has a different way of framing the contexts and conditions under which justice is to be achieved. An ethics of care focuses on the particularities of caring relationships, informed by differences in context, as well as the racial, economic, ethnic, cultural, and differently gendered experiences of individuals and those they care for in community. An ethics of care, rather than an ethics of justice, is better suited to be the basis for an abolitionist ethics.

I’ve written elsewhere about the ways that the different focus of these ethical orientations matter not just for actions and policies but also for understanding ethical problems.Footnote ⁴³ An ethics of justice does not attend to the specifics of each individual situation, much like the legal system has to abstract from contexts and particularity in its deployment of impartial reason. An ethics of justice springs from a picture of individuals that exist outside of their relationships and seeks to ignore the community connections that individuals have, unless, for example, it is to the others who were part of criminal activity.

We turn to ethical theories in conditions of conflict, to gain insights into how we might find solutions to hard social and political problems. An ethic of care has to address situations of conflict, of course, but also is concerned with how people come to see a moral problem as a problem in the first place and works to develop moral imagination not only as a way to reframe problems, but also as a way to move toward more just and sustainable solutions. In the exercise of moral imagination, care ethics is attentive to differences in power and works to provide analyses of the economic, political, racial, gendered, as well as the cultural underpinnings of systems of exploitation, commodification, and cruelty. By analyzing the specific contexts in which systems of power operate, care ethics is concerned about the larger structures that allow or contribute to injustice. Care ethics also directs our attention to the specific beings that are involved in the conflicts, and in so doing has helped reframe concerns about other animals. Care ethics encourages the development of empathy and compassion for all, no matter what species they belong to or what mistakes they have made.

One of the incarcerated students in an ethics class in the maximum-security men’s prison where I teach wrote his final paper about an ethics of care and its value in helping us rethink mass incarceration. I was struck by the example he used in opening his paper:

Animals, including human animals, have deep capacities for care. Of course, those incarcerated share those capacities and may engage in care for other animals that may have entered the prison, and of course, they care for each other when they are able to admit it.Footnote ⁴⁵ Care is a capacity that has to be nurtured, or cared for, and the criminal punishment system not only is detached from care, but promotes that sort of detachment. An abolition ethic would involve reimagining our caring relations and encourage and deepen them. It also requires an analysis of the impacts of failures of care, both before carceral solutions are sought when harms are committed and in critiquing the dehumanizing and deanimalizing conditions that exist in prisons.

An abolitionist ethic of care would have us rethink key ethical concepts like responsibility and deservingness. A care ethic can serve as a normative framework for seeing one way that state punishment is unethical because it treats some people as deserving less care. Although David Boonin doesn’t identify as a care ethicist, his argument against punishment is compatible with it. He argues that “punishment involves the state’s intentionally harming some of its citizens, and it involves treating the line between those who break the law and those who do not as justifying treating people on one side in ways that it would not treat those on the other.”Footnote ⁴⁶ One can hear echoes of childhood admonishments here – “two wrongs don’t make a right.” Of course, there are important considerations of context that need to be attended to here, and care ethics attempts to consider a variety of particularities about situations when making a determination of what is the right thing to do. In addition, when someone who has “done wrong” and committed harm is seen through a caring lens, and that person responds to being seen in this way, many possibilities are opened.

As I mentioned earlier, often those who commit crimes are victims themselves. They probably don’t care for those they harmed when they harmed them, but they also may not care for themselves. An abolitionist ethic of care can help both victims and those who caused harm reframe their experiences. Part of the solution to seemingly intractable conflicts is to care for oneself, in relations of respect and self-respect with others. As Sarah Ahmed notes, the “work [of] self-care is about the creation of community, fragile communities, assembled out of the experiences of being shattered. We reassemble ourselves through the ordinary, everyday and often painstaking work of looking after ourselves; looking after each other.”Footnote ⁴⁷ An ethics of care is not meant to be a paternalistic intervention, where care covers over pity or some equally contemptuous attitude, but rather it is an ethics that works to create the conditions in which caring for oneself and for others are developed and practiced. It is restorative and transformative work.

An abolition ethic of care for other animals would not endorse carceral solutions to animal cruelty. Animal lawyers decry the failure of the courts to take seriously violations of animal cruelty laws, given that such crimes are often not prosecuted and when they are, sentencing usually doesn’t involve incarceration. Developing an abolitionists ethics of care may have more positive impact for animals. Often, when people are exposed to caring, empathetic ways of perceiving other animals, when they come to understand animals as sensitive, complex, relational beings who feel physical pain but also suffer when they are kept in cages or when their psychological well-being isn’t promoted,Footnote ⁴⁸ they change their attitudes. Accelerated rehabilitation, the sentence that Alex Wullaert received after killing Desmond, rather than being rejected, could be a place to start. One can imagine requiring participation in an animal cruelty prevention and education program as a “nonreformist” reform, if the program involves serious community work, rather that just filling in online forms after watching videos about animals. Animal lawyers who seek to promote greater awareness of the plight of animals may wish to direct their attention to the content of such programs, helping to develop a required curriculum that is grounded in an ethics of care. Someone who was fatally cruel to an animal may not do such a thing again, but they may not have changed their attitudes about their relationships to other animals (and it isn’t at all clear that going to prison would do that either). Developing empathetic, caring attitudes toward other animals, other people, and oneself may very well go a long way toward elevating the status of animals and preventing crimes against them.

Carceral responses to cruel assaults on others, whether human or nonhuman, are understandable yet misguided attempts to try to bring about some sort of justice. As I’ve argued here, there are alternatives to this system that inflict more harm and do very little to fundamentally change people’s attitudes toward causing harm. Abolitionists have been working to develop ways of reimagining our relationships and our responses to harm that don’t involve punitive action by the state. An abolitionist ethic of care is a promising area for revaluing those who are harmed, those who cause harm, and the broader community who are impacted not just by the pain of harms that have been committed, but by the harms that are inflicted by the state in their names. Empathetic reimagining our carceral institutions and our anthropocentric attitudes is crucially needed to promote freedom and flourishing.Footnote ⁴⁹