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ILLUSARY PROTECTION: Palliative animal law and the war on animal cruelty

Like other palliative treatments, the carceral agenda provides pain relief for the humans disturbed by animal violence, but it masks rather than cures the structural violence involved in the ordinary commercial exploitation of animals.

JUSTIN MARCEAU: In 2019 President Donald Trump signed into law the Preventing Animal Cruelty and Torture (PACT) Act… Although every state already permitted felony animal cruelty liability, animal lawyers hailed the PACT Act as a “defining moment” for animal law because it allowed acts of animal cruelty to be charged as federal felonies…In the wake of the enactment, one of the most influential animal protection organizations in the world revealed that it had been working to pass the legislation for decades and “one of the largest victories for animals in a long time”…

The circumstances surrounding the PACT Act — the efforts to obtain it, the celebration of it, and its effects — represent a microcosm of animal-law efforts in the realm of carceral animal law more generally… It is a high-profile palliative intervention that provides a sense of accomplishment without addressing any of the underlying causes of animal suffering. Politicians and advocates celebrate the efforts as landmark victories, but in fact, as this Essay argues, the efforts tend to do more harm than good by reinforcing, and even exaggerating, the invisibility of most animal suffering in law…

The PACT Act and other tough-on-crime measures are celebrated by many animal lawyers because they provide symbolic proof of the increasingly strong “public concern for animal welfare.” Adopting the mindset that social problems are solved through criminal law, animal law commentators assume that the absence of a sufficiently punitive response signals a lack of social standing for animals. Thus, as one group celebrated, “PACT makes a statement about American values”.

Rather than catalyze change in American values, however, these war-on-crime approaches create a distracting sideshow that diverts public scrutiny away from matters of the most urgent concern. Carceral animal law consumes resources and scarce public attention. It is not a symbolic or incremental victory for animals — it is legal escapism. Put differently, this is not a paper advocating that animal lawyers should prioritize the rights and suffering of humans, as my critics will no doubt allege.

Rather, the point is that the prioritization of felony laws amounts to a grand mirage. The promise of incremental progress in favor of general animal protection is a false one, not because incrementalism can never work, but because this is not an incremental gain for animals. Contrary to the conventional narrative, more prosecutions and longer sentences are not paving a path to animal rights…

When it comes to animal victims, the plain text of the PACT Act mandates a hierarchy that all but guarantees inequitable treatment and suffering among animals. The law explicitly creates categories of exemptions for animals whose victimhood is often invisible to the law and therefore beyond criminal opprobrium. Consider the list of conduct that is lawful even if it involves purposeful crushing, burning, drowning, suffocating, impaling, or otherwise subjecting an animal to serious bodily injury:

(A) a customary and normal veterinary, agricultural husbandry, or other animal management practice;

(B) the slaughter of animals for food;

(C) hunting, trapping, fishing, a sporting activity not otherwise prohibited by Federal law, predator control, or pest control;

(D) medical or scientific research;

(E) necessary to protect the life or property of a person.

The breadth of these exemptions in a law heralded as one of the most important developments for animal law in decades is striking. Animals raised for food make up well over 90% of the domestic animals in this country, and yet the corporations operating slaughterhouses are arguably inoculated from prosecution unless a prosecutor can show beyond a reasonable doubt that the pain and suffering they might cause is not “customary and normal”…

A tough-on-crime logic operates across large segments of the animal law world. Animal law commentators and practitioners overwhelmingly embrace criminal law as a salient example of the rising tide of animal law. The focus may be unduly limited now, they argue, but the benefits of the criminal law’s narrow focus will trickle down and benefit all animals over time. By this logic, an expanded criminal code or a new mandatory minimum today is a foothold toward animal rights (perhaps on factory farms) tomorrow.

But 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. One need not focus on the damage to human communities from increased policing and prosecution to realize that criminal animal law is not a harmless sideshow.

More prosecution will never lead to greater animal rights. Longer sentences have not incrementally advanced the standing of animals in society. Like other palliative treatments, the carceral agenda provides pain relief for the humans disturbed by animal violence, but it masks rather than cures the structural violence involved in the ordinary commercial exploitation of animals. As societal concern for animal protection increases, one should expect that the public will be hungry for this sort of palliative treatment; instead, I hope that animal lawyers will be up to the task of providing interventions aimed at a cure. SOURCE…


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