Among the challenges and dilemmas faced by activist groups is the question how to strike a proper balance between advancing the group’s particular goal and fostering solidarity with other groups. Animal rights organizations are no different. Questions of coalitions and fractures come up all the time, be it the issue of financial and sexual misbehavior of leadership or concerns about outreach to other leftie organizations, who may misperceive the animal liberation struggle as trite concentration on “first-world problems.” Some efforts to bridge these conflicts make a lot of sense by pointing out similarities between some animal struggles and human struggles: Karen Morin’s work comparing cattle towns to prison towns is a worthy effort, as is the consensus-building work between animal rights activists and slaughterhouse workers; after all, working in a cruel industry harms the human workers as well as the animals.
But the strong emotions evoked by human armed conflict can lead animal rights organizations to choices that reflect, at best, organizational shortsightedness. One classic example is the political diversity of the ideologically engaged, dedicated, and successful Israeli vegan movement. About a decade ago, a lecture by animal rights activist Gary Yourofsky went viral, converting many Israelis across the political spectrum to veganism. Some important U.S. animal rights actions (such as a kaparos intervention in New York on behalf of roosters, which I played a small part in by providing legal advice) were guided by Israeli activists. Some of the most powerful interventions against the factory farm industry were conducted by entrepreneurial Israeli animal liberationists.
By the same token, it turns out that some of these folks, as they fight against the caging and slaughter of animals, simultaneously see the occupation is a-ok, which is a bone of contention in the Israeli activist scene. When activist leader Tal Gilboa quickly linked hands with the Netanyahu government after rumors of her unsavory leadership in the animal rights movement spread, many vegan communities were torn asunder, and with good reason.
But what really takes the cake is this week’s romance between DxE, an organization that has benefitted for many years from my energy and expertise, and… Hamas, a well-known animal rights organization (caution: the footage in the link is harrowing). DxE Bay Area issued a call to participate in one of the loony city council meetings issuing statements of solidarity.
Just to get a sense of what happens at these city council meetings that animal rights activists were so eager to attend, here’s an assortment of nutty comments from my fellow citizens, some of whom call Hamas “the armed wing of unified Palestinian resistance.”
Examples of the terrorists’ cruelty to the animals living in the kibbutzim they rampaged through abound: slaughtered dogs and cats, lost animals in search of their murdered human family members. Total devastation. Mia Leimberg, pictured above, was kidnapped from her home with her dog, Bella. When the terrorists realized Bella was a living being, rather than a doll, they wanted to take her away from Mia. But Mia protected her dog, shared her meagre rations with her, and insisted on remaining with her to the end, even as Hamas terrorists tried to take the dog away from her as she was being released. Stories of released hostages reuniting with their dogs are heartwarming – virtually every hostage has family members still in captivity, and to encounter their pets on the outside must offer so much comfort to their bruised hearts.
Released hostage Amit Susana with her dog Sunny
Released hostage Emily Hand (9) with her dog Schnitzel
The Brodech kids reuniting with Rodney after their release from captivity
Moran Yanai, who took care of many animals, reuniting with her dog
Released hostage Rimon Kirscht with her dog, Tovah
It’s easy to dismiss a lot of the DxE idiocy on this topic as a generational issue. Many activists are very young; moreover, all around me I see evidence that, from a moral maturity standpoint, 40 is the new 20, and in activism circles in particular absolutist thinking is very common. But since doubling down on this topic, the movement is losing allies left and right, not only their many Jewish (former) members, and notably, when I wrote to admonish the organizational leadership for this post, the reply was, essentially, “where did you see this?” as if the concern here should be about covering up the forensic tracks of this travesty rather than wondering why it was posted (and liked, and shared) in the first place.
My new rule for collaborations with activist organizations in all areas–law enforcement, prison conditions, human rights, animal rights–is this: I do not breathe the same air with, nor do I spend a drop of energy or a red cent on, or contribute my expertise to, anyone who does not think I have a right to exist. Fortunately, there are plenty of avenues to help humans and animals that do not require these unsavory collaborations. Such is, for example, the massive effort by Achim LaNeshek and animal rights activists to locate the displaced pets and farm animals and return them to their families, or to call attention to the animals in Gaza under heavy fire. Animals are not “Zionist imperialists” any more than they are “Islamic terrorists”. They are innocent bystanders in this horrid conflict (as are so many of the humans, men, women, children, literally caught in the crossfire) and should receive help and relief. Think what you may about petting zoos, etc.–I’m not a fan–these animals, like all animals, deserve our love and help. This is the side animal rights orgs should take: The animals’ side.
In the sixties, Todd Gitlin, then a young, passionate student, became involved in the fight against the Vietnam war and in the struggle for equality. Alongside his friends at Students for a Democratic society (he was the president in 1963-1964) he agitated, organized, protested, held movements, registered people to vote in the Deep South, and fought against orthodoxy in the Democratic party and for a New Left. Many years later, already a sociology professor and incisive critic of the movement he helped create, he evocatively wrote about how much activism had meant to him. The first half of his masterpiece The Sixties reads like a manifesto of hope; the second half, though, is rife with confusion. Plans for political action got muddled with self expression and individuality a-la diggers and the Mime Troupe (to read a different perspective on those, read Peter Coyote’s fantastic memoir Sleeping Where I Fall); people he admired and respected as leaders disappointed at best and disintegrated at worst; former comrades slid further and further to the left, established the Weather Report, and engaged in clumsy but frightening violent actions Gitlin could not condone or comprehend (learn more about those in the podcast Mother Country Radicals). Gitlin’s later books reveal an author and thinker who still very much believes in the ideals of socialism and peace, but resents the splintering and performativity of identity politics that he believes shattered the movement in the 1970s.
Today I found myself going back to one of my favorite books by Gitlin, Letters to a Young Activist, which evokes that deep ambivalence and wisdom that comes only from spending years in a movement you both admire and fiercely critique. Gitlin talks about the importance of passionate motivation but also reminds young activists not to “think with their blood”; highlights the crucial role of shining a light on the wrongs of your own side, but also the importance of letting self-flagellation by the wayside; and warns against the dangers of “marching on the English department”, as it were, while one’s opponents “march on Washington.”
What brought me back to Gitlin were a number of recent conversations with younger folks I like and admire a lot about their disillusionment with infighting and lack of integrity in radical movements and organizations with noble goals and true dedication. People admired and respected in positions of leadership turn out to behave in disappointing ways; serious issues get buried or, on the opposite end of the spectrum, debated to death, complete with public denunciations and humiliations; minute complaints turn into struggle sessions that sap everyone’s will to come back; and eventually people come to demonize their comrades and brothers in arms more than they do the bad guys they are fighting against.
Hearing about this stuff is always heartbreaking, especially when I see folks who I know put in countless, tireless, thankless energy, time and effort into organizing and activism express disillusionment and despair. I can offer very little solace in this sort of situation; dealing with big disappointment as an idealist is really hard, and calls for more than one self-compassion break.
Kristin Neff, who has written and spoken extensively about self compassion and mindfulness, offers a three-step formula for anyone who is struggling. The first step is to admit that this is, indeed, a moment of suffering, a low point in the person’s life. The second, which I’ll elaborate more on in a bit, is understanding that suffering is universal, a part of life, and that everyone suffers–sometimes intensely–from time to time. And the third is offering oneself some kindness, either through expressing it or through a gentle hand touching one’s own heart.
I like this exercise a lot, and find the second step especially important, because as Brené Brown explains, one of the traps of shame and self-pity (by contrast to self compassion) is to see one’s experience as unique and idiosyncratic. I see a lot of this horror in young, committed activists, who are so distraught by occurrences in their group or community that they believe it must be prey to some special variety of pathology. This is where I can offer some comfort. As regular readers know, I’ve written and spoken quite a bit about the sixties, and part of my work on Yesterday’s Monsters included learning about cults and movements that swirled around the California counterculture when Manson put together his “family.” When the murders occurred, and when Manson and his followers were identified as the culprits, they evoked a wave of horror because cults and their inner workings were not well known or understood at the time. Indeed, the idea of thought control and brainwashing was associated at the time only with Communist regimes such as China and Korea (see an example of this in The Manchurian Candidate.)
But while this group stood out in the heinousness of their crimes, they were by no means the only group led by charismatic leaders and/or a vision to be plagued by exploitation, violence, and oppression. In the mid-seventies, the California legislature held a hearing for family members of young adults who had joined cults, hearing testimony after testimony about how their loved ones fell in thrall to some charismatic leader or other, started believing some stranger things, dramatically changed their appearance or habits, isolated from them to the point of estrangement, and gave all their effort and resources to the cult. Witnesses testified about the Moonies and about a variety of Christian apocalyptic cults. The legislators at the hearing tiptoed between expressing deep concern and sympathy and reminding everyone that cult members were adults with the freedom of religion and expression.
To this day, whenever I see people criticize radical activist movements that fall prey to unsavory activity and conflict, the demonizing language compares the movement to a cult. This is not a scientific or easy process, because cults turn out to be quite a malleable category. But one need not go into the reeds to identify pathological cultish elements in pretty much every activist movement, including influential and notable ones. Three years ago I wrote a post about this stuff that identified a lot of the obvious issues: betrayals of the cause, identitarian splintering, sexual exploitation or perceived exploitation, financial malfeasance, etc. Having read a lot about movements in the 1960s and 1970s, I see situations where the FBI were infiltrating and persecuting organizations and cells and eventually didn’t have to do anything to hasten their demise: these outfits crumbled on their own, without the malignant interference of the feds, because they suffered from these inherent issues. Stanley Nelson’s fantastic documentary about the Black Panthers is a case in point: there’s nothing the FBI could have done to dissolve the Panthers that Huey Newton didn’t do himself. Larry Kramer’s acerbic account of ACT UP in The Normal Heart shows the awful indifference and demonization the activists were working against, but also how they sabotaged themselves through horrendous infighting. I see this stuff again and again.
Here are some factors–and this is by no means an exhaustive list–that are part of this malignant cocktail. Oftentimes, radical organizing draws people who seek the type of camaraderie and belonging that membership in a close-knit group of likeminded people working for an important cause can provide. Some young folks get swept in this energy because home life is rife with trauma or neglect, or because their school or employment networks haven’t improved their lot socially. I’m not saying their commitment to the goal is not genuine; all I’m saying is that excitement about a common vision is infectious and promises an embrace that is very difficult to resist if one feels lonely or traumatized. The fact that a lot of radical movements strive toward ideological purity is also part of this. It isolated people and drives them further into the insular experience of the group, with no reality checks and balances on the outside. I’ve spoken to mixed-race couples that broke up on account of a commitment to racial justice that was so strong that it eclipsed years of love and commitment. I know of people who took the Liberation Pledge (not to eat where animals are served) and ended up unable to eat with anyone from their family or friend group outside vegan movements. Not only does this mean all of one’s social efforts are invested in a relatively small group of people, but that group ends up being an echo chamber and it’s very difficult to test ideas in the real world. And moreover, anytime purity and adherence to principles are the yardstick for worthiness, people turn on each other and compete over who is a more zealous advocate for social change. This process of eating each other seems to accelerate as shit starts hitting the fan, because people who are afraid and fighting for their own survival are sure to lash out at the people standing closest to them.
The fact that crappy things are happening to committed activists throughout the social justice field is not cause for cheer, but I think that anyone who thinks their organization is uniquely pathological might derive some comfort from knowing that, apparently, homo sapiens seems to find a way to ruin communities centered on ideals and struggles pretty much all the time. I don’t think we’ve found a way to organize and seek social change that doesn’t end up marred in these kinds of self destructive crap. I wish we could, but I’m in my late forties, have organized and agitated plenty, and I’m just not seeing it. The one that came closest to being a healthy organizing container, for me, was the #StopSanQuentinOutbreak coalition; it wasn’t without its warts, but it was highly effective and overall a really positive, supportive environment. I suspect the magic had something to do with the fact that, in addition to the long-term decarceration vision, we had tangible, short-term emergency goals, and thus no time for faffing. Perhaps human nature, like nature in general, abhors a vacuum, and will fill any available space with infighting and oneupmanship.
I don’t know what the answer is. But I do think that understanding we’re talking about universal phenomena that radical movements go through can be helpful to people who think they’re stuck in a uniquely dysfunctional scenario. Every unhappy family, as Tolstoy famously wrote, is unhappy in its own unique way, but they are still all unhappy. And that means that any person who believes in an ideal, a vision, a blueprint for far-reaching social change, and is committed enough to put a lot of work into it, will experience heartbreak from time to time. If this is you now, then it’s simply your turn. Offer yourself all the kindness you need to get through the rough patch, and then see if there’s another path for you to change the world or bring about your values in a way that supports your heart better.
What a day of good news! First, we hear winds of reform at San Quentin. Then, Chad Goerzen and I receive word that FESTER has been approved for publication by the UC Press Editorial Committee (and coming to a bookstore near you in January 2024.) And then, I hear the verdict in the Foster Farms trial: NOT GUILTY!
As explained in this Los Angeles Times story by Christian Martinez, two activists, Alexandra Paul and Alicia Santurio, faced misdemeanor charges for rescuing two chickens, Ethan and Jax, from a truck, moments before they were brought to a slaughterhouse. This video depicts the rescue:
This is the second time that activists rescuing animals prevail in criminal courts. I’ll know more about the trial later next week, though I do know that a legal opinion I wrote in 2018 played a role. When I learn more about the legal issues, I’ll post a follow-up. For now, good news all around. Saving animals is not a crime!
In the last few weeks I’ve been making big changes to my nutrition and fitness routine, which call for some careful reflection. The whole thing started when a colleague–a badass athlete in her own right–lent me her copy of Stacy Sims’ new. book Next Level, the first (as far as I know) book about perimenopausal and menopausal athlete. Just a few days later, I attended an open water swim camp in Hawaii, where my wonderful and knowledgeable coach, Celeste St. Pierre, recommended the same book, and impressed upon me the vital importance of Lifting Heavy Shit.
Up to this point, my athletic endeavors were almost squarely in the endurance world. I swam long (and slow) in open waters, transitioning then to multisport to protect myself from injury. In the heyday of my marathon swimming days, I did no cross training whatsoever – only swimming. Later, I added on calisthenics, in the form of fusion classes (which I took and taught) and antigravity fitness (using silky hammocks.) I’m not quite sure whether I was fully aware of the importance of doing all these things at the same time, and I’m also pretty sure I wasn’t told to increase the resistance and challenge or to eat more. Generally speaking, and relatedly, my weight has been almost entirely the product of my diet: when I eat more and poorly, I gain weight; when, with great control and care, I eat less and well, I lose weight. Going in the former direction is easier than the latter.
For many important biological reasons that Sims explains in a lucid, straightforward way in her book, the wellbeing and athletic priority during perimenopause and beyond should be building lean muscle and bone. For many of us, this means changing our body composition, which is not an easy thing to do and not one that can be accomplished merely with dietary changes. The building block for muscle is protein, which has to be consumed in adequate amounts, and the muscles must be used in a progressively challenging fashion for them to grow stronger.
I read the book cover to cover and then, through the recommendation of another wonderful athletic colleague, was introduced to lifter Casey Johnston and her excellent couch-to-barbell program. Two weeks ago, for the first time, I mounted plates on my barbell, and am quite fascinating with this transformation, though I still have many questions and uncertainties. Here is some of what has been happening:
I am lifting three times a week – twice at the school gym with my colleague, once or twice at home. This has required a certain change to my routine. I lift on Sunday, Tuesday, and Thursday; I now swim on Wednesday, Friday, and Saturday. I also kept up my pilates on Saturday and my boot camp (which includes lifting) on Sunday. On lifting days I also do a short plyometric set (quick, HIIT-type jumping). Monday is somewhat of a lighter day, though I do ride the cargo e-bike, as I do every weekday, to drop my son off at school. That means shorter but more intense workouts, which is what Sims recommends. It does feel weird, as someone used to endurance workouts, that there’s none of the prolonged suffering that we marathoning people tend to glorify. Hilariously, I am finding the mantra “I can take anything for twenty seconds” useful for both HIIT and lifting.
I am already experiencing improvement in my strength. Last week I flew to Atlanta for a conference (ASC was very good this year, and I’ve already posted about some of what I learned–on court fees and on extradition) with a big, heavy backpack containing everything I needed for four days. When I got to my airplane seat, I lifted my bag into the overhead compartment–and was immediately struck by a big difference. Reader, it was child’s play. Not that it wasn’t heavy; I was stronger, noticeably so, and it was very gratifying. Same story with groceries. My partner was astonished yesterday when I came back from the co-op with a gigantic box of produce, oat milk cartons, and the like, and carried it myself as if it was nothing despite its weird shape. All of this is very good news and provides ample motivation to keep going.
The progress arc at the beginning is very satisfying. Every time I lift I think to myself, there’s no way in hell I’ll be able to lift five pounds more in two days. And then the next workout arrives, and to my astonishment, I can! I’m sure this fast progress will slow down as I progress, but for now, this linear improvement (2.5-lb increments for upper body, 5-lb increments for lower body) is providing a huge motivation boost. This is a good thing. Throughout my life, I’ve often see-sawed between two good sensations: growth (picking up a sport or a skill I know nothing about and getting through the uncomfortable months/years that it takes to become “good enough” to enjoy it) and relishing skill (making small improvements in a sport I’m already quite proficient at.) Sometimes it feels like I need to stay in my comfort zone (as with, say, swimming or flute.) Sometimes I pick up something new (such as tai chi or the handpan.) Now is a time for the latter, and I feel excitement building for when I get “good enough” to know what I’m doing.
I’ve also introduced some changes to my swimming. At the open water swim camp, Celeste taught us to activate our muscles through dryland practice before getting into the water. I’m finding this highly effective, and I’ve made one more adjustment–my sets are shorter and sprintier now. I cover fewer yards overall, but the intensity of the practice has increased, which is exhilarating. I’m also hitting some surprising times with my 50s and 100s – times I hadn’t seen in the pool since I was training for Tampa Bay in 2012. At 48, this is gratifying and makes me feel like I’m doing the right thing.
I’m still not 100% sure what I’m doing, nutrition-wise, despite having gotten excellent advice. Sims’ book, the coaching figures in my life, and my awesome new acquaintance, vegan fitness coach Karina Inkster, have all emphasized two principles: I have to eat a lot more than I’ve been eating, and I have to prioritize protein. These things go hand in hand, because it is a pretty impossible job to double one’s protein intake (especially on a vegan diet) and keep the caloric situation low. Sims discusses the common problem of low energy availability, or LEA, and stresses how crucial it is to fuel properly before, during, and after workouts. We vegans love to scoff at ignorant meat eaters who ask us “where do you get your protein?” and, indeed, one can get a lot of protein on a plant-based diet, but it does require more planning, as the things one should eat (good, plant based food with fiber and phytonutrients) don’t tend to come in easy protein-rich packages. On Karina’s website, one can find lots of excellent resources for protein and other nutrition strategies for vegan athletes. She even has a handy vegan protein calculator, which instructed me to eat twice as much protein as I had been eating. This means I’m chasing protein throughout the day (tofu scramble; adding vegan protein powder to green smoothies; adding hemp, flax, and chia to my morning oatmeal) and all the other calories sort of work themselves out.
I’m also not sure what’s happening with my body size-wise. Despite eating almost twice what I ate during the Big Weight Loss and Health Restoring Project, and despite putting on about 12 lbs or so, my size doesn’t feel significantly different. My measurements are almost the same. The scale is unhelpful, as its body composition readings are inconsistent and bizarre. Parts of me feel more muscular, other parts softer, and, in general, I feel more like a work in progress than like the chiseled ancient Greek statue my mind imprinted on as the picture of health and strength. I can’t argue with the functional improvement, but there is definitely a part of me that is terrified of regaining all the weight I lost through so much effort–if only because I have wonderful clothes and would like to continue wearing them. This is a really interesting and juicy place to explore in meditation–attachment to body, attachment to clothes, the possibility that I purchased my current wardrobe as a protective talisman against weight gain, lots of new things to learn about myself and my relationship to my body.
Spiritually, the whole thing is weird, fun, and a bit discombobulating. One of my favorite teachers, Pema Chödrön, speaks of “positive groundlessness“: coming to a sense of tentative, floating peace with the idea that nothing is permanent and there is really nothing to hold on to:
The idea of letting go of fear and becoming comfortable with groundlessness has been a recurring theme for me in the last few weeks, pretty much since I participated in the Smithfield Trial and experienced the elation of its aftermath. Recently, Wayne Hsiung and I recorded our third podcast together, in which I espoused a theory about the judge’s closed fist where it came to affirmative defenses and evidence in the trial. I’m increasingly convinced that what drives these aggressive judicial court-management maneuvers is the fear that the trial will evolve and bloat into some landmark political moment beyond the judge’s ability to handle. Fear of uncertainty, of having nothing to hold on to, no buffer or protection, drives a lot of behavior, including very bad behavior. This includes my own fear: during the trial, as Wayne and I discuss in the podcast, I was sure that taking a mistrial was the right choice for him, but he decided to take the chance and see what the jury would decide. Happily, he was proven right. It was a moment that taught me that Wayne has more guts than me, and that I need to develop my relationship with positive groundlessness.
In his book Becoming a Man, one of my favorite authors, Paul Monette, wrote: “When you finally come out, there’s a pain that stops, and you know it will never hurt like that again, no matter how much you lose or how bad you die.” I think this is true for virtually anything worth being brave about: animal rights, helping incarcerated people, fighting against an unjust regime, resisting orthodoxies (from the right and from the left), and changing something as solid and fundamental as one’s relationship with one’s body. Let’s just say this lifting journey is a wonderful opportunity to explore my own bravery in picking up something new, and it’s a spiritual journey as well.
I have excellent news. After almost eight hours of deliberation, the jury found both Wayne and Paul NOT GUILTY of burglary and theft. They are free!
This is a resounding victory for the animal rights movement, for the #RightToRescue, for open rescue activists, and for everyone who has compassion.
It is also a resounding victory for the curiosity, thoroughness, and courage of the jury, who saw through the evidentiary obstacle course that Judge Wilcox concocted for them and through the machinations of Smithfield. It is a resounding victory for anyone who wants their taxpayer money to be spent on worthy causes, not on persecuting innocent animals and their friends.
It is also a resounding victory for excellent lawyering – Wayne, who represented himself and did an incredible job despite having his life on the line; Mary Corporon, who represented Paul with a wealth of experience, talent, common sense, and wit; and numerous wonderful law students (Andre, Taj, Josh) who worked tirelessly backstage on legal arguments, research, and strategy.
Here’s what I learned from following this trial, and especially from paying attention to the jury’s questions: even when people’s hearts are in the right place, and they want to do the right thing, it is essential to give them a legal “hook” for the decision. In this case, in the absence of necessity, the “hook” was the argument about the value of the pigs. In many ways, this was better than having the necessity defense available, in that the argument was so technical, so value neutral, and so part of the legal core of the elements of the offense, that it might have provided a bridge between those who were moved to acquit on ideology and those who could not bring themselves to do that outside of the law and facts. This is something we can all take from this to animal rights lawyering everywhere.
This is also an important lesson for activists planning open rescues in the future about how to craft their rescue in ways that skirt such trumped-up charges.
And it is a lesson to powerful corporations in the cruelty business and their state attorney lackeys not to persecute, hound, overcharge, and expend resources to abuse, people who save animals.
The first thing you notice upon waking up in Saint George, Utah, is the breathtaking, majestic beauty of the mountains. The striking nearby towering rocks, a bright red against the blue sky, are echoed in the grandeur of the far away mountains in shades of gray and blue. Let your gaze drop a bit and you’ll contrast this dramatic natural scenery with the ugly sprawl of an extensive strip mall, festooned with motels, cheap restaurants, and highways. But much of the town is a celebration of beauty, starting with its most visible landmark. Established by Mormons who fled Vermont and then Illinois, the town was divided into lots, which were raffled between the pioneer cotton-growing families. Brigham Young, whose winter residence is open for public touring, dreamed up the big temple, which gleams in its colossal whiteness, along with its steeple, in the middle of town. Elder Edwards, who leads the tour, tells us that Young was unhappy with the original, shorter steeple; After his death, lightning struck the offending steeple, which persuaded the townspeople that Young was speaking to them from the next world, and they built one of more impressive stature.
Mormon Temple in St. George, Utah
The town nowadays is a mix of Mormon heritage, a faith still practiced by much of the population and ever-present in landmarks and street names; college professors and students from Utah Tech and Dixie University, among other institutions; artists, who are responsible for the many works of public art decorating the town’s many squares and traffic circles; and endurance athletes running and cycling along the mountainous trails. There is a phenomenal independent bookstore, an old-fashioned barbershop, a historical theatre showing international horror films, and a vegan restaurant, Gaia’s Garden Café, which whips up delicious rice bowls and exquisite matcha lattes.
In the center of town stands the Fifth District Courthouse, where my friends, Wayne Hsiung and Paul Picklesimer, stood trial this week for burglary and theft. The facts? Wayne and Paul, along with two others who pleaded out, entered a pig factory farm in Beaver County, Utah, operated by Smithfield Foods, and rescued two dying piglets, Lily and Lizzie.
“Operation Deathstar”, featuring footage capture by DxE activists.
The two piglets the activists removed from the facility, Lily and Lizzie, were nearly dying, suffering from a variety of ailments. Importantly, Smithfield had falsely declared that it ceased its use of gestation crates (confinement cages for mother pigs that do not leave them any room to move), and the investigation exposed that these were still in use.
Smithfield was extremely invested in its good name, which allowed it to market its pig meat as “humanely raised.” Exposing the truth would have adverse consequences for the company. And so began an investigation by the FBI, which would not only involve spending my tax money and yours on an extensive hunt for the piglets by a “six-car armada of FBI agents in bulletproof vests”, but also hurting the pigs and traumatizing sanctuary employees. Glenn Greenwald, who covered the story for the Intercept, wrote:
The attachments to the search warrants specified that the FBI agents could take “DNA samples (blood, hair follicles or ear clippings) to be seized from swine with the following characteristics: I. Pink/white coloring; II. Docked tails; III. Approximately 5 to 9 months in age; IV. Any swine with a hole in right ear.”
The FBI agents searched the premises of both shelters. They demanded DNA samples of two piglets they said were named Lucy and Ethel, in order to determine whether they were the two ailing piglets who had been rescued weeks earlier from Smithfield.
A representative of Luvin Arms, who insisted on anonymity due to fear of the pending criminal investigation, described the events. The FBI agents ordered staff and volunteers to stay away from the animals and then approached the piglets. To obtain the DNA samples, the state veterinarians accompanying the FBI used a snare to pressurize the piglet’s snout, thus immobilizing her in pain and fear, and then cut off close to two inches of the piglet’s ear.
The piglet’s pain was so severe, and her screams so piercing, that the sanctuary’s staff members screamed and cried. Even the FBI agents were so sufficiently disturbed by the resulting trauma, that they directed the veterinarians not to subject the second piglet to the procedure. The sanctuary representative recounted that the piglet who had part of her ear removed spent weeks depressed and scared, barely moving or eating, and still has not fully recovered. The FBI “receipt” given to the sanctuaries shows they took DNA samples “from swine.”
Several volunteers at one of the raided animal shelters said they were followed back to their homes by FBI agents, who dramatically questioned them in front of family members and neighbors. And there is even reason to believe that the bureau has been surveilling the activists’ private communications regarding the rescue of this piglet duo.
Value of the pigs
Lest this suggest that the pigs were of immense value to Smithfield, between 15 and 20 percent of the piglets, who grow up sickly and starved in the factory conditions, are exterminated. And sometimes, this mass extermination take the form of mass suffocation, as another DxE investigation revealed in 2020. Matt Johnson, who uncovered this horrifying practice, was charged with a violation of Iowa’s ag-gag laws, but the charges against him were dropped. It’s worth reading Marina Bolotnikova’s Current Affairs story about Matt’s legal exploits.
Paul and Wayne were not so lucky, and the trial against them, with charges for agricultural burglary and theft, proceeded, animated by the interest of Utah’s state attorney, who receives campaign donations from Smithfield. On Wednesday night, I flew to Las Vegas and drove two hours into St. George, ready to testify on Wayne’s behalf.
I was not there as an expert witness, but rather as a character witness: I know, like, and respect Wayne, have collaborated with him on lawful campaigns such as the fur ban in San Francisco (which was successful and later expanded throughout California), have spoken on his podcast, and have invited him to my classroom to show the footage and speak with my students (many of whom considered his visit the highlight of the entire course.) Coming up with a witness list and crafting the legal arguments was complicated. Judge Wilcox, who presided over the trial, severely limited what would and would not be admitted. In a series of blog posts, and in a book chapter, I explained that the natural legal framework in open rescue cases was the necessity defense: a justification for breaking the law in order to prevent a worse evil from occurring where no legal options to prevent it exist. But arguing necessity would open the door to ample proof of this “worse evil”, including showing the footage of Smithfield’s barbaric practices, and that Judge Wilcox did not want to allow. So, Wayne and Paul would rely on other defenses: claim of right, lack of mens rea (no “intent to commit a felony within”), and a lack of value of the “property” in question. They would show the footage to illustrate that the piglets were worthless to Smithfield. Even so, Wayne, Paul, Paul’s Utah attorney Mary Corporon, and the small team of dedicated law students who supported them with research, would face a ferocious uphill battle in their efforts to introduce relevant evidence in the face of Judge Wilcox’s determination that this was “a burglary case” and he would not tolerate it becoming a political soapbox.
Because I gave testimony only on Friday, I was banned from watching the trial footage in advance. I say “trial footage” because Judge Wilcox, who described the activists as “criminals” and “vigilantes” severely curtailed access to the trial. The activists, many of whom flew or drove hundreds of miles to support the defendants, would not be allowed in the courtroom. Judge Wilcox allowed only five people in the court at the time, anonymized the jury and, at some point on Thursday, cut off the WebEx streaming of the case, launching into an angry tirade against “vigilantes” (there is no evidence of intimidation or, really, anything that was not peaceful, 100% legitimate protest). Moreover, the legal team, who operated from a nearby AirBnB, saw strangers in suits skulking around the bushes surrounding the property and removing their trash, and when they came out to speak to them, the strangers fled in a black van, saying something into a worn microphone, and falsely claimed to be the “owners” of the AirBnB. At least one side of the trial was determined to uphold due process, and I didn’t want to mingle with the activists who were watching the trial, so I spent hours on Thursday hiking the mountain ridge and visiting Pioneer Park,Red Cliffs Desert Garden, and several city landmarks, like the temple and Brigham Young’s home. I got to talk to a lot of kind and pleasant city residents, many of whom knew that the trial was taking place there (it landed there through a change of venue from Beaver County, where half the jury pool would be comprised of Smithfield employees.) Throughout it all, I wondered why this trial evoked such panic or, more accurately, why the panic was so painfully misdirected at those who exposed the horrific cruelty rather than those who perpetuated it.
The answer I came up with, which I later saw play out again and again throughout the trial, was this: There is nothing more threatening to a human being than raising even the remote possibility that one is not a good person. People will go to incredible lengths of self deception, cognitive contortion, and actions in the world, to avoid confronting even the remotest possibility of a blemish on the goodness that is such an inexorable part of their self identity. This is true for all those who consume Smithfield’s products, or, really, any other animal products, and try to avoid any footage that might show them that they are complicit in something horrible. This is also true for all those who protect these abominable secrets–law enforcement agents, prosecutors, judges–who so desperately want to cling to the belief that they are the good guys and on the right side of this that they flout due process, the constitutional public trial clause, the jury trial rights, and pretty much any other constitutional protection the defense has.
Fifth District Courthous
The panicked blockade of transparency was evident throughout the trial (as I’m now piecing together from what I saw with my own eyes, my conversations with the legal team and the journalists, and the WebEx footage and twitter stream I followed after I got off the stand.) During voir dire, one prospective juror said he knew what jury nullification (the power of the jury to decide a case according to their moral convictions, rather than the law and the evidence) was. The judge struck him, saying that he wanted to “save a peremptory challenge for the prosecution.” This strikes me as outrageous, even against the backdrop of hostility to nullification in criminal courts. Judges admonish juries that they must decide the case according to the law and the evidence, and, as explained in this useful and well-written piece by Jordan Paul, “deliberately conceal [nullification power] by scrubbing references to nullification from the entire process.” In United States v. Kleinman, a Ninth Circuit case, the Court held that a jury instruction “severely admonishing” against nullification was unconstitutional, but that the resulting error was harmless. But the fact that nullification exists and is lawful is a matter of general knowledge, so it seems that Judge Wilcox overstepped the constitutional line here.
It would not be the last time. The most ferocious battles in court were fought over the extent to which the very limited allowable defense scope (what with necessity and, subsequently, claim of right off the table) required showing the jury footage from Smithfield. The entire field of evidence law deals with the balance between admitting evidence with probative value and suppressing evidence that is prejudicial. The kicker, of course, is that what makes a good piece of evidence probative is also what makes it prejudicial–namely, that it evokes a strong response. This kind of strong response might suggest that there is something awry at Smithfield and, by extension, that consuming their pork was not a good thing to do, so Judge Wilcox would not allow it. Many of the films were censored and limited to still images. In a more reasonable decision, the judge cut off the sound of the video, to exclude Wayne’s narration of what he was seeing inside the facility. but with the effect of silencing the agonized screams of the pigs. Nevertheless, some footage would have to be allowed, because of its direct import to the questions of mens rea and value. To commit agricultural burglary in Utah, one must have a specific intent to remove property: Wayne and Paul argued that their intent was to document conditions on the ground, and that the removal of the pigs was for the purpose of saving them. As to value, Wayne and Paul argued that the pigs, deathly ill from deprivation, a foot injury, and an inability to nurse, were of no value to Smithfield, undermining the definition of “property” in Utah’s theft statute.
The jury trial for Hsiung and Picklesimer stretched throughout the week, and was filled with objections from the attorneys in an attempt to keep the trial within the parameters set by the judge. Mary Corporon, who represents Picklesimer, and Hsiung, representing himself, would argue that certain steps taken by the state should allow them to bring in more information about the farm conditions, including showing the video.
Janise Macanas and Von Christiansen, Beaver County attorneys, objected when a witness started talking about other conditions, specifically about a dumpster on the farm with dead piglets inside or the mother pig’s health.
Testimony was offered by veterinarians chosen by both sides, an investigator, a Smithfield employee and a man who was part of the same undercover operation of the farm in 2017.
After all of the testimony in the case had been offered, the judge issued a directed verdict dismissing the first count against both Picklesimer and Hsiung. Corporon argued that each of the burglary counts was specific to a building, and that the two defendants did not expect to see piglets in a gestation barn — meaning they would not have been entering the barn with an intent to steal.
There was also a discussion about a possible mistrial. Hsiung and Corporon argued that the prosecution asking a state veterinarian about care for the pigs at the farm opened the door for them to bring in new evidence about the conditions of the farm. The prosecutor said that was simply an effort to show that the two specific piglets would have had a chance of receiving medical care that next day.
The judge said bringing in that much new evidence at the end of the day on the last day of trial was not an option.
“I’m not going to open up testimony again in this case, and if we need a mistrial, we’ll have one,” Wilcox said.
Ultimately, Corporon and Hsiung decided to continue with the trial, after the state’s attorneys agreed with asking the jury to not take into account that testimony.
On Thursday, Hsiung called himself to the witness stand, asking himself questions and then opening himself up to questions from the other attorneys. While questioning himself, he admitted to taking the piglets, but said it was not theft because he took piglets that were of no value to Smithfield.
Hsiung said the case is not about burglary and theft but about animal cruelty and animal rescue. The two piglets were given names after they were taken from the facility, Lilly and Lizzie, and he spoke about their conditions.
Although he said they did not intend to take piglets, during his testimony he admitted they had a veterinarian on hand in case they brought out animals and that they had evidence that there were animals dying on the farm. Hsiung said they had taken animals in the past during similar operations, sometimes with the owner’s permission.
He argued that he had a belief that the piglets were abandoned property, and prompted witnesses to testify that the piglets were more of a liability to Smithfield and he may have been helping them by removing the piglets from the property. Ultimately, though, he said the purpose was to save the piglets from “certain death.”
“We were not there to be burglars or thieves,” Hsiung told the jury. “We were there just to give aid to dying animals.”
I witnessed the judge’s wrestling with the factory farm content firsthand. Under direct examination, I spoke about how Wayne and I met and about some of the animal rights advocacy we had done together. When asked to give examples of Wayne’s honesty and integrity, I started explaining how open rescue works–that open rescuers keep their faces revealed and their identities known and take responsibility for what they’ve done even when it means facing scary consequences. Just as I started speaking, Janise Macanas objected, the judge (who seems to have been a bit taken aback by fancy professors siding with the defendants) put the kibosh on the rest of my testimony, and that was that.
Here’s what I would have said, if I were allowed to speak: Wayne’s honesty and integrity are obvious to anyone who meets him. His willingness not only to face incarceration in Utah, but possibly to lose his license to practice law in California (a previous attempt to disbar him for saving animals failed), is admirable. Every social movement that tries to improve the world must encompass lots of different people: the food engineers and companies that bring us Beyond Burgers, the chefs and bloggers who bring us wonderful vegan recipes, the mainstream advocacy groups that seek legal change, the law clinics and nonprofits, and yes, the people who are willing, at great expense and sacrifice, to actually risk going into these horrendous facilities and tell us how our food is being made. These folks provide an invaluable service to the movement, which should embrace them rather than distancing itself from them. It’s crystal clear who the good guys and who the bad guys are in this case. And intelligent, curious people should be very suspicious when someone is trying to keep important information from them.
The mistrial issue was quite heartwrenching to experience. Dr. Sherstin Rosenberg, the veterinarian at Happy Hen sanctuary, testified about the condition of the piglets, discussing their inability to nurse and their injuries. Not content with this, the prosecution put Dr. Dean Taylor, the state veterinarian, on the stand as a rebuttal witness. But it turned out, during Dr. Taylor’s evidence, that Smithfield employed a grand total of two veterinarians for more than a million pigs. Later rebuttal testimony from a Smithfield employee, which confirmed this, led to a flood of questions from the jury about the medical condition of pigs at Smithfield (to the point that I wondered how many of the jurors would eschew pork, or become vegan altogether, after this trial). Judge Wilcox was visibly despaired by all this. He had tried so hard to rein in the trial and avoid discussing the real issues, but, despite his best efforts, the animal cruelty stuff slipped from under him and occupied front and center at the trial. In desperation, he proposed holding a mistrial. I thought this would be a fantastic end to the whole thing. My hope (perhaps misguided?) was that the state of Utah would realize that they should stop throwing good taxpayer money after bad, and refrain from reprosecuting–particularly in Paul’s case. I also hoped (perhaps against hope?) that, after declaring a mistrial, Judge Wilcox would pick up the phone, call the state attorney, and tell him that reprosecution was not worth it. But Wayne and Paul decided to proceed forward with the trial. The unsatisfying compromise was that Judge Wilcox instructed the jury to ignore the rebuttal testimony from the veterinarian and the Smithfield employee.
What happened at closing arguments is aptly described in the KSL article:
On Friday evening, Christiansen claimed Hsiung admitted to taking the animal, but attempted to minimize his crime with contradictory testimony. He said Hsiung testified that he didn’t intend to take a pig, but in the script of the video shared at trial, Hsiung said, “If we see an animal we can take out, we’ll take them out.”
He talked about how Hsuing and the rest of the group went into the facility on March 6 and March 7, but did not take any animals on March 6. Christiansen said this shows they were not just taking piglets that needed emergency care but were taking pigs as part of a publicity move.
“The pigs were just props in a video, props in a movie,” Christiansen said.
He said the animals were alive and did have value, and any evidence of poor health displayed at trial is speculation.
Christiansen also talked about the charges for Picklesimer, and said holding the camera was a very important role in the burglary, allowing Direct Action Everywhere to produce a video and raise donations.
“Every person that participated in the burglary that night was part of the crime,” the prosecutor said.
Picklesimer’s attorney, however, said he did not even touch a pig, and did not intend to commit a theft and should not be held accountable for something he didn’t do.
She told the jury if they do believe Picklesimer might be guilty based on being part of the group, the should directly consider the worth of the piglets to Smithfield.
“Bottom line these piglets are worth nothing, it’s a net negative,” Corporon said.
She said what Picklesimer did was like standing next to someone else who was emptying a trash can.
Hsiung presented his arguments last, making a plea to the jury to consider their feelings and recognize a difference between stealing an animal and helping an animal.
“We did not intend to take a piglet out who had anything of value for Smithfield,” Hsiung said, arguing that these two piglets did not have any commercial value.
He told the jury he did not want to be acquitted based on a technicality, but hoped they would make a ruling that would make a difference to animal rights.
“If you defend our right to give aid to dying animals, defend the right of all citizens to aid dying and sick and injured animals, there’s somethings that will happen in this world. Companies will be a little more compassionate to the creatures under their stewardship. Governments will be a little more open to animal cruelty complaints. And maybe, just maybe, a baby pig like Lilly won’t have to starve to death on the floor of a factory farm,” Hsiung said.
He argued that theft and burglary are not the right way to charge him in this case, and suggested different steps should be taken to address actions like this, including companies and governments listening to their suggestions or charges for trespassing.
I’m now back at home, processing what I saw and heard at the trial, as the jury in St. George is deliberating the verdict. I very much hope that the little exposure they received to the horrendous evil that is factory farming will persuade them of the negligible value this “property” has for its “owners”. I only wish they could see the piglets now. One member of the legal team, who lives in Colorado, gets to visit with the pigs once ever few weeks, and reports that they are lovely and doing very well. I also hope Wayne and Paul made the right call. We had some conversations about whether going with the mistrial was “good for the movement” or not; both parties made numerous mistakes, as is inevitable in the course of a complicated trial, and those would not be repeated in the second trial. But a well educated, curious jury is also something that is difficult to give up. Having done my very small part in this case, I’m keeping my fingers crossed for the right outcome. If you want more coverage, following @SmithfieldTrial on twitter, as well as journalist Marina Bolotnikova and activist Jeremy Beckham, will be useful, or use the hashtag #SmithfieldTrial.
It was such a pleasure last week to be a guest on Wayne Hsiung’s excellent podcast The Green Pill. Wayne is one of my favorite people, whom I admire a great deal for his selflessness: he is a relentless animal rights activist and one of the founders of Direct Action Everywhere. For his involvement in intrepid open rescues of animals (piglets, chickens) and documentation of the horrific conditions in so-called “humane” and “cage-free” slaughterhouses, he has faced serious criminal charges in multiple states, the latest of which is his upcoming trial in Utah. Wayne is also a deep thinker, a
We took some time to talk about the trial, from legal and emotional perspectives, but also about so much more. Our conversation, which you can listen to here, revolved around animal rights, prison litigation, and in general–how to remain hopeful and healthy, for oneself and for one’s kids, in a world so full of suffering. I hope you enjoy the program! For those who prefer reading to listening, here’s Wayne’s blog post about our conversation.
But perhaps there is another way to go, which learns from contemplative and deep ecological perspectives. At 5:30am on election day I rode my bike to the polls and was treated to a magnificent dawn chorus of San Francisco’s diverse and colorful bird population. A thought flew through my mind: The birds don’t know and don’t care that there is an election today. Much of what we will vote on (transit, construction, garbage collection) will directly affect their lives, but they are not involved in this process–they live adjacent to it, oblivious of what it may bring in its wings. Who will speak for their interests at this election?
I’m obviously not the first person to introduce contemplative practices into ecology and animal rights. In their 1988 book Thinking Like a Mountain: Toward a Council of All Beings, John Seed, Joanna Macy, Pat Flemming and Arne Naess propose a blueprint for human decisionmaking that takes all perspectives in mind. Through transformative, contemplative practices, a Council of All Beings invites humans to deeply adopt and articulate the perspectives of nonhuman entities in decisionmaking. I participated in one such Council as part of a facilitator training; I spoke for a mushroom and some of my fellow participants spoke for parrots, rocks, and blades of grass. It was a profound immersion in the interests, if they can be called that, of nonhuman entities.
This transcendent notion of perspective taking has migrated from deep ecological theory to the legal realm, with some expressing optimism for its potential for transformation. In his article We Are the River, my colleague and friend David Takacs offers some examples: The New Zealand Parliament has recently granted the Whanganui River and the Te Urewera mountain ecosystem rights as legal persons, with a Māori governing board to speak for the nonhuman entities, based upon traditional cultural precepts. Similarly, governments in Australia, Colombia, Ecuador, Bangladesh, India, Uganda, and the U.S. have also declared that rivers and other living systems have legal rights. While these initiatives stem from disparate historical, philosophical, and legal backgrounds, and pursue disparate goals, they all seek to enshrine in the law the fundamental symbiosis between human and nonhuman ecological health, and to empower suitable stewards who will nurture that symbiosis. As Takacs explains, newly vested spokespersons for nature–often indigenous populations, who savvily position themselves as more authentically empowered to speak for natural entities–can, and sometimes do, turn novel legal theories into real legal work that protects human and nonhuman communities.
So, perhaps the solution to our failure to effect real change through animal personhood is to eschew performative (often prosecutorial and anthropomorphized) rhetoric on behalf of animals and give some careful thought, through discerning political considerations and contemplative experiences, to two important questions: what are the genuine interests of nonhuman animals and who should be vested with the authority to represent these interests? As I explained here and here, and as Justin Marceau explains so well here, deep engagement with the true interests of nonhuman animals does not and should not include a reliance on incarceration. The answer, perhaps, is that criminal courtrooms are not the right places for deep, thoughtful perspective-taking. This is not to say that meditative retreats or multiparty government meetings would be completely free of anthropomorphism: any humans speaking for nonhuman entities necessarily translate very different lives to their own into human terms and might, manipulatively or carelessly, twist or convert these into their own interest. This is why it is essential to identify speakers for animals who are truly curious, knowledgeable, and sincere.
When we understand on a deep level what animals want (they are more similar to us than we might think, as Larry Carbone explains in his treatise on laboratory animals), the solutions are up to us. Bruce Friedrich of the Good Food Institute often explains that the true solution to the horrors of factory farming lie at least partly in the hands of the market: we must create substitutes to animal products that taste the same or better, and cost the same or are cheaper. Would factory farmed animals provide us with this solution? Naturally not. This is an entirely human solution, derived from an entirely human conceptual world, for the genuine problem nonhuman animals face–the horrific reality of exploitation and torture that is the CAPO industry. What Friedrich’s solution shows us is that, when we set out to comprehend the unmediated experience of our fellow living beings, with as little imposition of our own agendas on it as possible, we can then fashion human solutions to these problems. I resolved to participate in (human) elections and vote on measures that humans introduced, and on human candidates, while “thinking like a mountain” at the ballot box.
But we can find even more uses for thinking like a community, such as in physical and mental health matters. Recently, I read and enjoyed Will Bulsiewicz’s Fiber Fueled and listened to this podcast with him, in which he explained that we should think of our eating habits as eating not just for ourselves, but for a whole community including trillions of microbes. What I eat is for them as much as it is for me, or for whatever “me” is (not that easy to parse, with so many microbes in the mix, right?) So, when you crave a mountain of nutrition-empty things, consider that there’s an emotional aspect of “you” who wants them, while there are many aspects of “you” – the physical, biological, mental “you”, that needs other things. Think of the cliché of pregnant women “eating for two:” we’re all eating for trillions.
There’s also a psychological aspect to this: I’m enjoying Richard Schwartz’s No Bad Parts, an excellent introduction to family systems theory in psychology, which is all about the notion that we contain multitudes. It is useful to give a voice to neglected parts of the self, even if one believes there’s some “core self” (a better fit for western psychology than for Buddhist psychology.)
Next time you’re involved in decisionmaking, for yourself or for others, try thinking like a community and see how it feels.
Happy Return of the Light to all my readers! I hope the lengthening days and multifaith holidays of light are giving you some hope, even in the face of some difficult challenges we face (I’ll talk about some of the newest developments regarding COVID in prisons in my next post.)
I’m using this post as a way to organize my ideas for a new chapter in an anthology about animals as victims of crime. One of the most common advocacy paths in animal rights has been an effort to enhance the statutory structure of cruelty to animal laws: creating more offenses, raising sentences, and pursuing prosecutions. As Justin Marceau explains in Beyond Cages, this agenda–which hopes to change the lives of nonhuman animals for the better–tends to target, most of the time, a demographic that is already suffering in serious ways: impoverished people trying to take care of their pets (as I explained elsewhere, the landmark decision State v. Newcomb, in which the Oregon Supreme Court found that removing a dog from the household and testing his blood is not a “search” under the Fourth Amendment, involved precisely that scenario.)
My views on the punitive animus behind so-called progressive movements are well known; in the last few years, I have been alarmed by the amount of mobbing, vindictiveness, and shrill calls for Draconian punishment in the guise of seeking social justice, and this regrettable phenomenon shows no sign of abating, even as moreandmorepeople are vocal about how fed up they are with it and how, again and again, it targets the wrong people. More prosecutions deployed against the low-hanging fruit of poor people, as opposed to against the vile factory farm industry, are not the way to go. But there are several ways in which we can support animal liberation through criminal law tools.
The first thing we should consider is what “victim status” actually means–legally, culturally, and symbolically–when said victims don’t actually “use their voice.” Rather, a variety of spokespersons try to assume the role of speaking for the animals. This reminds me, to some extent, the ways in which the parties in a homicide trial try to bring forth the decedent’s perspective, which is of course tragically missing from the trial–but at least there they can rely on the decedent’s history, what they might have said or done when alive. This is not something we can do for animals, though we can and should be enlightened about the extent to which animals can and do suffer, physically and psychologically. Nonetheless, I don’t think that it’s useful to think of the problem of serious crimes against animals through the common formulation of criminal law’s importance for victims–getting “justice for A” by “punishing B.” What would “justice” mean to a nonhuman victim? In one of the most recent conversations about crime survivors and criminal justice, the high-profile trial of Brock Turner, much of the conversation revolved around Chanel Miller’s victim impact statement. What would be the equivalent of such a statement on behalf of an animal? And, more importantly, what would it mean to a nonhuman animal if there were ways to present their perspectives in court?
As you can tell, I have serious doubts about using the “justice for A by punishing B” framework even for human animals, but it seems pretty clear for me that, for nonhumans, symbolic victories of this nature are meaningless. It seems to me that the goal of pro-nonhuman-animal criminal law reform should be making actual, practical headway in animal liberation as well as in animal protectionism. Because of this, I propose the following avenues for reform:
If seeking status for animals in criminal law, we should emphasize ways in which this status actually promotes welfare for animals–such as recognizing harm to animals as “harm to someone” to provide animal rights activists and open rescuers the necessity defense. I think that the common law definition of necessity already supports this interpretation and urge courts to clarify it.
We need to develop better ways to help folks who participate in animal exploitation and abuse as part of a cultural tradition that is important to them (I’m thinking of Katie Young’s ethnography of Hawaiian cockfighters, but Passover lamb slaughter rituals and the U.S. traditional consumption of turkey during Thanksgiving would also count) interrogate their own assumptions about the personhood/sentience of the animals. These questions can be very difficult to explore and we need to find ways to make inroads in these sorts of situations. This also matters when looking at criminal defendants clearly suffering from mental illness, such as animal hoarders, who often believe they are caring for the animals they abuse. Insights that go against the grain of cultural traditions and mental health landscape are very difficult to develop in the context of an adversarial trial, where one is already antagonized by the very fact of being a criminal defendant.
In the area of companion animals, one way to prevent prosecutions before they even happen is to provide people who live in poverty dignified ways to care for their animals, which would be good for the humans as well as the nonhumans. Expanding on the work of Paw Fund and Pets of the Homeless is crucial, as is the financial assistance program of the San Francisco SPCA.
It is surprising how little attention is given in conversations about animals in criminal law to the exploitation of animals in law enforcement. We talk about the racial symbolism of using horses to quell protests for humans (see here also) but not nearly enough about the appalling aspect of involving these horses in human conflicts in this brutal manner (so much of human warfare has relied on animals–you’d think this would be a topic of conversation already.) Contrary to what activists may think, one conversation here does not have to come at the expense of another. This conversation has to go beyond labor rights for police animals (a great example of animal personhood that actually has practical importance!) to questioning their use in the first place.
In Beyond Cages, Marceau proposes shifting the prosecutorial focus from impoverished individuals to corporations; I understand where he’s coming from and empathize with his perspective, though I think that this proposal suffers from the same problems as many anti-carceral proposals: they don’t go far enough–merely expanding the population of “defendants we care about” and leaving the last bastions of carcerality (corporations, rich people, white supremacists, cops) in place. Instead, I think it is wiser to let go of the criminal framework even for corporations, choosing instead to pursue civil liability strategies involving monetary damages, which can potentially incentivize changes in industry standards. The threat of civil action can go hand in hand with the kind of business incentives that Leah Garcés discusses in her book Grilled and Bruce Friedrich promotes at the Good Food Institute.
Does any of you have other ideas for ways in which criminal law can promote animal liberation without the punitive/carceral focus?
My two biggest research interests–criminal justice and animal rights–come together in Karen Morin’s new book Carceral Spaces, Prisoners and Animals (New York: Routledge, 2018.) Morin, a geographer by discipline, applies insights from carceral geography to both human and nonhuman confinement contexts.
Carceral geography is a growing area of scholarship that examines prisons through a lens of spatiality. Building on work by Michel Foucault and Giorgio Agamben, carceral geographers problematize the overly simplistic notion of prisons as carceral spaces, arguing that prison boundaries are porous and that carceral ideologies of domination through confinement permeate spaces beyond the prison–beyond the formal dichotomy between “inside” and “outside.” Some themes studied by carceral geographers include spaces within prison and how they affect the experience of incarceration (“public” and “private” spaces within the prison; the impact of prison on the body); the interface between prisons and surrounding communities (prison towns, family members, transportation); mobility within and between prisons; and prison architecture and design. Carceral geography is directly relevant to my current research project, which is a book in progress about the COVID-19 catastrophe in California prisons; I rely a lot on the idea of prison permeability, which brings together notions of carceral boundaries, logics of opportunity (for people and for the virus,) insights from situational crime prevention, and miasma theory. In addition to this, I’m deeply interested in animal rights, and am working on a project involving the criminal prosecutions of animal rights activists who break into factory farms to release suffering animals.
In many ways, my interest in liberating nonhuman animals is an obvious extension of my interest in alleviating suffering in prisons. But the comparison is socially fraught from many directions. I often hear prison reform activists and abolitionists criticize prisons for treating people “like animals,” as if treating animals this way is fine; I’ve also heard animal rights activists criticize experimentation on animals, proposing to experiment on prisoners instead (Justin Marceau criticizes the myopic assumptions of the latter phenomenon in Beyond Cages.) I’ve also had to contend with people who find the comparison deeply offensive. Morin is well aware of these emotional and political landmines and writes:
I recognize though that the politics and ethics of making comparisons between racialized and classed human lives and that of nonhuman animals in respective carceral spaces can be problematic and fraught. It is challenging for humans who are embedded in violent, racialized, and criminalized human histories and spaces to not be offended by posthumanist comparisons to animal suffering. As noted above, the category of ‘human’ is contested in any case, and it is important to not move too quickly ‘beyond the human’ without acknowledging the continued exclusion of many human lives from full incorporation within it. And yet thinking particularly about race and animals together is important, precisely because of the way that racialized people have been and continue to be animalized in carceral spaces (Chapter 3). Moreover, the carceral logics of domination are intertwined across human and nonhuman groups. To take one more example, as Deckha (2013b) has shown, animal anti-cruelty legislation has the double effect of selecting certain animals for protection while targeting the behaviors of certain minoritized populations of people as deviant and transgressive. Meanwhile, industrial practices involving the dominant culture – as well as the abuse and killing of most animals – remain immune from critique.
Morin, Karen M.. Carceral Space, Prisoners and Animals (Routledge Human-Animal Studies Series) (p. 15). Taylor and Francis. Kindle Edition.
This avenue is deeply productive, not only because the analogies and similarities are analytically interesting, but because solidarity across movements is essential for success. Morin’s analysis ties together the prison-, agricultural-, and medical industrial complexes, showing the intricate connections between them and the profit logics that underpin them.
Morin’s book proceeds to analyze a series of contexts in which she sees parallel developments between human and nonhuman carceral spaces. She compares execution chambers and slaughterhouses, discussing the notions of “humane” slaughter and of death sentences that are supposedly not “cruel and unusual.” She discusses the intersection of the medical and carceral spaces in the context of medical experimentation. She even asks difficult questions about prison boundaries when discussing zoos and supermax facilities. The book also makes an important contribution to two seemingly unrelated growing literatures: the one about forced labor in prisons and the one about the possibility and structure of labor rights for nonhuman animals. Throughout these topics, Morin shows deep sensitivity to the broader social structures that allow cruelty to persist.
My favorite part is Morin’s comparative analysis of prison towns and cattle towns. She shows how the introduction of an exploitative industry into a “company town” shapes the economy and the tenor of the entire town, without granting much in the way of economic benefit to the town itself (by contrast to the industry that exploits the town.) Morin doesn’t explicitly say this, but a big thing here seems the creation of a municipality that is collectively impermeable to compassion, which I think is a serious issue even when the industry is profitable.
We often talk about dehumanizing conditions in prisons. But perhaps the question is not whether or not we’re all human; the question that should matter is whether we are sentient and whether we suffer. A few years ago I read Michael Dorf and Sherry Colb’s Beating Hearts, which compares the logics of sentience underpinning the pro-life and animal rights movements and finds a way to reconcile them into a cohesive pro-choice and pro-animal perspective. I think there’s a way for advocates and activists to find peace with Morin’s comparison in a way that allows them to support both movements.
Morin admits that she has not analyzed all the scenarios that her comparison speaks to, and I found at least two that I would like to read future works on. The first has to do with the concept of overcrowding. Morin discusses issues of caging in depth, but the book does not delve into the movement toward humane farming and “cage-free” chicken facilities. Now a major selling point for eggs and for pig meats, the notion of no-cage or no-crate is deeply misleading, and some states, such as California, use various parameters to try and measure overcrowding. I’ve seen parallel developments in the context of prison population reduction orders. It’s no big secret that I think the measuring yard used in Brown v. Plata–percentage of design capacity systemwide–was deeply shortsighted, and a more careful calculation of minimal per-person area, as in other countries, would have helped us mitigate the COVID-19 catastrophe we’re experiencing right now.
The second issue I would want to read more about has to do with movement strategy, and with the reform-versus-revolution debate in the prison advocacy community. There is a parallel debate–quite a heated one–in the animal ethics community, between animal welfarism and animal liberation. Movement strategy and tactics, attention to incremental reform, and the use of the criminal justice process to challenge cruelty and obtuseness are relevant to both movements, and I think there’s more room to write about this.
These two issues notwithstanding, the book makes a fascinating read. Unfortunately, Routledge has priced it quite prohibitively, but prospective readers should know that you can rent it from Amazon for a reasonable price.
