Both human rights and nonhuman animal rights work are driven by a deep commitment to values and principles of justice, foremost among them a respect for the freedom, equality, and dignity of each individual. These values and principles are like a lighthouse in a storm of human bias, fear, and self-interest that plagues human and nonhuman beings alike—guiding the way to safe harbor and solid ground as we consider the positive and negative impacts of decisions, laws, and public policy.
A new book by Justin Marceau—a Professor of Law at the University of Denver’s Sturm College of Law who has submitted amicus briefs in support of our nonhuman rights cases—reminds animal advocates of the importance of this guiding light.
Beyond Cages: Animal Law and Criminal Punishment (Cambridge University Press) points to a problematic tendency among mainstream animal advocacy organizations to focus excessively on, and to celebrate, criminal punishment—for example, more and longer sentences for animal abusers—as a means of generating support and effecting legal change to help nonhuman animals.
In this sense, Justin argues, these organizations, unwittingly or not, have allied themselves with “the carceral state,” which misguidedly sees imprisonment as a solution to systemic issues that go beyond any individual actor.
In so doing, they risk alienating human rights advocates (potential allies) and are missing out on important opportunities to demonstrate solidarity with those fighting to end related systemic injustices experienced by human beings, such as mass incarceration. Instead, he urges, “the animal protection movement should spend time looking for convergences of interests, affirming the dignity of humans and animals as opposed to inflicting the indignity of incarceration of humans.” We couldn’t agree more and welcome the reflection and conversation Justin’s book invites.
In this spirit, and ahead of a live Zoom conversation NhRP President Steven M. Wise will have with Justin on Wednesday, June 20th as part of our new Interview Series, we asked him a few questions about his book, his background, and his work at large:
You started your career as an assistant federal public defender working on capital habeas corpus cases, i.e. cases where human prisoners were sentenced to death. How and when did you become interested in animal law?
It was law school. It is popular to dismiss academics as irrelevant, but if it had not been for a course on animal law offered during my third year at Harvard Law School, I may not have ever pursued animal law. I had long been interested in the dignity and rights of the oppressed, and the class gave me an opportunity to reflect on animals as morally relevant. I firmly believe that there are many, many versions of ourselves in each person, and our opportunities, choices, privilege and luck all help determine where we land. Once I was exposed to animal law, it was always front of mind for me in everything I did.
What motivated you to submit amicus briefs in support of our cases and recruit other habeas corpus experts to do the same?
As a practicing lawyer and early scholar, I focused on habeas corpus. I have published extensively on the operation of the writ in the US. I also studied some of Steve’s writing in law school, so I had a sense of where he was coming from. I decided to support the NhRP’s cases because this creative litigation framework looks to improve the status of nonhumans without trying to diminish humans. The concerns I raise in my book involve efforts in animal law to prop up the status of certain animals by ensnaring humans in the criminal punishment apparatus.
Thank you for analyzing the NhRP’s ongoing nonhuman animal rights litigation in your book. In brief, to what extent do you think our work aligns with what you’re advocating for?
I think the work of the NhRP is a great example of civil rights-focused litigation on behalf of animals. Several years ago Steve and I co-authored a chapter in a book on wrongful convictions (in the human context), and it occurred to me when I invited Steve to join me that the work of the NhRP is consistent with a project that does not treat human and animal well-being as a zero-sum game. The NhRP seeks to advance the well-being of animals, but not at the expense (literally or rhetorically) of diminishing the well-being of humans.
I am approached often to do work on legal cases and I resist the temptation to join efforts that I think will either be harmful to animal protection efforts or to civil rights more generally. Carceral animal law is not the defining feature of animal law, but it has played a central role in the narrative about how the law should protect animals. I should also say that several persons I have viewed as mentors have said pretty nasty things about me because of the positions I take in this book—it has been very personal to some that I would critique the system of aligning with criminal punishment.
But my view is that if we can’t have these conversations, then we are kidding ourselves that we want to be taken seriously as a field of study. And more generally, we are blind if we don’t think that a focus on prosecution will unnecessarily isolate the movement. Many academics really disagree with me (and all I do is invite conversation), when I make what seems to me a rather simple claim: it might be bad for animal protection and the animals to be aligned with the prosecuting state as opposed to civil rights and liberation campaigns. Why would a civil rights scholar come to the aid of the animal protection movement if our discourse and outreach is often carceralist?
To what extent do you think there is still a place for criminal prosecution and incarceration for people who abuse nonhuman animals?
I think the role of criminal law is limited, very limited. If corporate prosecutions were being pursued, that would be something we could celebrate (or at least not condemn). But the focus in the flyers and outreach is on “jail” and avoiding slaps on the wrist for individual actors. There has never been any data showing that a system of incarceration will reduce the incidence of animal cruelty, yet the movement has touted incarceration as a central pillar of animal law. To be fair, cruelty prosecutions have never been the exclusive or even primary focus of any major organization in the US. And lots of good litigation has been done outside of this realm. But the reality is that our movement has sought longer prison sentences, filed briefs in support of sentencing juveniles as adults, sought to have low-level employees deported and imprisoned, and celebrated felony laws at the state and federal level as central to the goals of animal protection. Groups described the recent federal felony law as one of the greatest achievements for animals in decades. Only criminal law exceptionalism could imagine an expanding felony-web as a monumental victory for animals.
How do you hope a shift away from carceral animal law will positively impact animal advocacy? What sorts of difficulties or forms of resistance do you expect along the way?
I have never claimed that animal groups cared only about incarceration or criminal punishment, or even that it was their primary focus. I have simply highlighted recent efforts and results and questioned whether it is the best use of resources, or instead whether it might be alienating our movement. It is a question, a call for dialogue and self-critique and growth. But the pushback I have received is intense, particularly from the most senior members of the field. One senior law professor in the field wrote to me and said, “You have shown a willingness to throw others under the bus for the greater good of your ideas … Maybe part of my pain is that it came from someone within the movement.”
I should also say that some of the strongest negative reactions to my book have come from other law professors. One angry animal law professor told me that noting that the criminal justice system had race and class problems was tantamount to calling him a racist! In response to a paragraph that merely notes that tough-on-crime policies, of the sort that seem to permeate movement outreach, have been shown through the most rigorous empirical studies to have disparate race and class effect, he flippantly responded, “Can you deny that this language classifies the movement as being racist? Am I not in the movement? Therefore, you have said I am racist whether or not you use my name.”
There is a sense that critique from within is senseless and counterproductive, tantamount to “throwing someone under the bus.” But there is no sentiment more foreign to the academic enterprise. My internal critique of the movement is offered in the spirit of exchanging ideas and to suggest that such a conversation is not worth having is, well, rather baffling. Persons who take the time to earnestly engage with what I am actually saying or with me personally may disagree, but I don’t think they will leave with any well-founded suspicion that I am out to undermine or personally attack anyone.
Focusing on issues of gender in the movement, Emily Gaarder, in her book Women and The Animal Rights Movement, wrote a passage that embodies the ethos of what I take to be a series academic approach: “At times I found it painful to discuss inconsistencies and problems within the animal rights movement, partly due to anxiety about revealing too much to opponents … and concern that I would be vilified by others in the movement for doing so. Yet hiding conflicts for the sake of unity is surely a fatal move … It is my belief that such issues must be addressed before a fully actualized vision of human and animal liberation can be realized.”
To what extent do you think social justice and civil rights organizations that advocate for human beings will be more eager to support nonhuman rights once animal advocates reduce their reliance and emphasis on carceral animal law?
As I say in the book, I don’t have a crystal ball. I cannot predict whether other groups will eagerly embrace the rights of non-humans in any circumstances. But I can tell you that if I ran a civil rights group that was focused on helping non-citizens or other marginalized communities, I would be reluctant to get into the fray and support animal protection efforts if animal protection groups are neck-deep in promoting criminal responses to animal suffering. Picture asking a labor group or an immigration group to help you with factory farming litigation when you have filed briefs supporting the deportation of persons. There is a strand of progressive carceralism that my book and others identify as isolating, limiting, and outdated.
I have had so many people approach me after publishing this book to thank me for detailing an issue that has bothered them for years. It does not mean I am 100% right. It does not necessitate decriminalization. But it is probably worth some hard conversations about why our movement prefers to work with prosecutors as opposed to defending activists. Imagine if as a way of showing their habeas prowess lawyers for the NhRP filed amicus briefs opposing habeas relief for any animal abuser. Even if you won. Even if you could fundraise off of it. Even if the animal suffering is horrific. Do you really think that is the path to civil rights or habeas rights for nonhumans? I don’t.
Governments and social justice organizations are investing in efforts to battle climate change. Do you think that the nonhuman animal rights movement can benefit from this investment?
Of course. The failure to consider climate change, population, and other matters has been a blind spot for some groups (not all of the groups). But increasingly there are cases and outreach focused on these issues, and my sense is that it is well received. These issues are easier for the movement to pivot towards because they do not necessitate backing away from prior strategies. Acknowledging that climate change and over-population will disproportionately harm marginalized communities is tolerated, but acknowledging that criminal interventions also tend to have disparate impact on marginalized groups is not well received.
How do you suggest that animal protection and welfare organizations best proceed to reduce the suffering of nonhuman animals? What would be some practical actions we can take now?
Ha. If I had those answers I would not have written such a narrow book! I think that litigation and legislative efforts aimed at protecting animals from suffering continues to be essential. I tend to always find truth in William Kunstler’s insight that the best thing a lawyer can do is protect the activists on the ground who are agents of community change. But I am not an absolutist about anything, and I am not so arrogant as to imagine that I have the answers. I have confidence in the next generation of animal lawyers, and in the meantime I am looking forward to supporting you all with another amicus brief!
If you could fast forward 20 years, where do you see the nonhuman rights movement?
I can barely imagine 20 hours ahead in my life, so this is pretty much science fiction to me! I hope we find ourselves in a position where nonhuman struggles and human struggles are viewed as part of the same fight. I hope we find a way to engage in what Lori Gruen calls entangled empathy, a process of recognizing that we have responsibilities to help nonhumans through non-violence.
To read the amicus briefs Justin co-authored with Samual Wiseman, visit this page (habeas for elephants, 2018 brief), this page (habeas for chimpanzees, 2018 brief, with Brandon Garrett as third co-author) and this page (habeas for chimpanzees, 2016 brief). To purchase Justin’s book, visit this page. If you have a question you’d like to Steve and Justin to answer in their May 20th Zoom conversation, email email@example.com!