DEFIANT DISSENT: Voluntary prosecution and the case of animal rescue
Open rescues believe they have the legal right to rescue sentient animals, and that the profit concerns of a corporation should not override their suffering. Open rescues also invite prosecution, and the prosecutions provide a platform for illustrating the failures of the law when it comes to protecting animals, especially those raised for food in factory farms. The activists use the trial not just to illustrate the cruelties of modern factory farming or to showcase an act of disobedience, but also to test the standing of animals under the law.
JUSTIN MARCEAU, ET AL: The impacts of voluntary prosecution are canonical in American history, from the women’s suffrage movement to the civil rights movement… They can reverse the traditional accountability rationale of the criminal law, which counsels, “Don’t do the crime, if you can’t do the time.” If the public views the charges (or even the criminal statute itself) as unjust or unlawful, then accountability may come, but in the form of a backlash against the legal system. The prosecutor, the judge, and even the law itself will be held to account when the injustice of a prosecution — or its tension with other, more important principles of law — becomes apparent…
Central to voluntary prosecutions in the animal rights context is the growing movement for open rescue. In an open rescue, animal activists enter an animal-abusing facility (usually a factory farm), document its deplorable conditions via photos and videos, and rescue a small number of sick and dying animals. These rescues are “open” because the investigators do not conceal their identities or the nature of their activities, and they widely disseminate footage of the rescue.
Open rescues perform the legal right demanded — namely, the right to rescue. By their very performance, they envision a world in which the profit concerns of a corporation do not override the suffering of sentient animals. Open rescues also invite prosecution. Because open rescuers bare their identities and widely publish their rescues, they become easy targets for zealous prosecutors in rural counties. And the prosecutions provide a platform for illustrating the failures of the law when it comes to protecting animals, especially those raised for food in factory farms.
One prominent voluntary prosecution of animal activists was the so-called Smithfield Trial. The trial had as its basis an open rescue in March of 2017 from a factory farm owned by Smithfield Foods. Several animal activists, including one author of this Essay, entered this farm — one of the largest industrial pig farms in the United States — and removed two injured and ill piglets. No one disputes that the pigs would have died if they had not been taken by the activists and given immediate veterinary care. And no one disputes that the entry and the removal of the piglets was done entirely without consent from Smithfield.
However, the pig production facility was so large, with approximately 1.2 million pigs raised every year, that the removal of the pigs was not noticed until the activists released footage of their rescue to the New York Times, which ran a feature story on the conditions of the pig farm and the animals’ rescue.
The work of these activists served the goal of promoting transparency by showing that the largest pig production company in the world was breaking a pledge it had made ten years earlier to phase out the use of so-called gestation crates, two-by-seven-foot cages where mother pigs live for up to seven years with severely limited freedom of movement. But more importantly for the purposes of this project, having rescued two baby piglets and openly filmed and published the entire event, the activists also invited prosecution.
For the activists, the prosecution and eventual trial was the plan. It was an effort to force a legal discourse about factory-farming conditions. Indeed, the two activists who ultimately went to trial declined pleas to substantially reduced charges that would have resulted in no jail time. The activists planned to use the criminal trial as a way of exposing and challenging the prevailing legal norms toward farmed animals.
It was not an act of civil disobedience; it was an attempt to make law and to focus attention on the abuse of animals. The activists used the government’s aggressive and overzealous prosecutorial tactics against them, effectively putting Smithfield — and the law enforcement officials who did its bidding — on trial. Indeed, this reversal was so effective that the trial became known as the “Smithfield Trial” in media coverage.
More generally, the trial that unfolded in October of 2022 provided a dramatic stage for highlighting one of the core features of modern animal law: the law punishes those who attempt to save animals from cruelty and protects the industry that inflicts the cruelty. A stunning rebuke of the legal norms governing animals was effectuated by the very court system that entrenches and vindicates the diminished legal status of animals…
The Smithfield Trial ended with a stunning outcome: the acquittal of the activists by a conservative jury in southern Utah. Interviews with the jurors revealed that the prosecution’s aggressive and overbearing tactics backfired, allowing for the role reversal in which the state became the object of suspicion rather than the activists…
Less than six months later, in March of 2023, two more activists were unanimously acquitted of theft by a jury in the heavily agricultural county of Merced, California, even though there were videos of them removing chickens from a truck heading to a slaughterhouse.130 This trial, dubbed the “Foster Farms” trial, similarly turned the tables on law enforcement. The two activist-defendants refused multiple plea deals, including one that came with no jail time and would have eventually cleared the charge from their records.
The activists welcomed prosecution as an opportunity to spotlight cruelty against farmed animals and make the case for the right to rescue. Jurors again unanimously acquitted the defendants, and in a remarkable turnabout, jurors from both cases have now written op-eds supporting animal activists and spoken at animal rights conferences…
In these landmark cases, the activists used the trial not just to illustrate the cruelties of modern factory farming or to showcase an act of disobedience, but also to test the standing of animals under the law… These landmark animal rights acquittals, as well as the historical phenomenon of voluntary prosecution more generally, present important lessons for activists and movement lawyers. Most obviously, these case studies overturn the common wisdom that views prosecutions as antithetical to social change. SOURCE…
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