Friends of Every Friendless Beast: Carceral Animal Law and the Funding of Prosecutors

AuthorJustin Marceau & William Dewey
PositionProfessor and Animal Legal Defense Fund Professor of Law, University of Denver Sturm College of Law/Juris Doctor candidate, University of Denver Sturm College of Law, Class of 2021
Friends of Every Friendless Beast
Carceral Animal Law and the
Funding of Prosecutors*
Justin Marceau** & William Dewey***
In the mid-nineteenth century, the founder of the American Society for the Prevention of
Cruelty to Animals (ASPCA), Henry Bergh, saw criminal punishment as the lynchpin
of the protection of animals. Bergh lobbied the New York legislature for the adoption
of animal cruelty laws, and took it on himself to enforce those laws. Animal law has
evolved considerably since then, but Bergh’s tactics have experienced a renaissance. e
animal protection movement’s reliance on criminal law and incarceration to prop up
animal status is the subject of a book-length critique by Justin Marceau in Beyond
Cages: Animal Law and Criminal Punishment. Picking up on the book’s call for
greater scholarly attention to the relationship between criminal justice and animal
protection, this essay focuses scrutiny on three aspects of the modern animal protection’s
xation with criminal justice: (1) the animal protection movement’s renewed interest
in privatizing the prosecutorial function; (2) the view that by framing the animal as
a victim, social change will be more readily possible; and (3) more generally, the view
that prosecutors will serve as catalysts for the sort of radical social change the animal
protection movement is pursuing.
* From Henry Wadsworth Longfellow’s Tales of a Wayside Inn (1863),
written, according to Sydney Coleman’s Humane Society Leaders in
America, as a tribute to Henry Bergh:
Among the noblest of the land,
ough he may count himself the least,
at man I honor and revere,
Who, without favor, without fear,
In the great city dares to stand
e friend of every friendless beast.
** Professor and Animal Legal Defense Fund Professor of Law, University of
Denver Sturm College of Law.
*** Law student, class of 2021, University of Denver Sturm College of Law.
Marceau & Dewey, Friends of Every Friendless Beast
A. e Success of the Private Prosecutor Position in Oregon
B. e Terms of the Private Prosecution Arrangement
C. Putting the Promise of Private Prosecutions in Context
I. Introduction
In nineteenth century America, buyers and sellers of livestock would tie
animals by their legs and pile them in carts like cords of wood. When
a Brooklyn butcher was arrested for the practice in 1866, he became the
f‌irst person convicted of animal cruelty in the United States, and some
would point to the conviction as a turning point in the country’s collective
recognition that animals are not mere property.1 e conviction was a
direct result of the work of Henry Bergh, the founder of the American
Society for the Prevention of Cruelty to Animals (“ASPCA”). Criminal
prosecution, according to Bergh’s vision, could serve as the non-human
animal’s f‌irst-best hope for legal protection.
Before Bergh came onto the scene, legislatures exhibited no great
concern about cruelty to animals. e laws that did exist existed to protect
valuable property; a man could be prosecuted for harming animals that
belonged to someone else, but the law stopped there. Americans were
free to abuse animals that belonged to them, or that belonged to no one.
In David Favre and Vivien Tsang’s overview of nineteenth-century anti-
cruelty laws, the authors note: “[w]hat a man did in the privacy of his
home to his animals, his children, and sometimes even his wife, was his
1. Sydney H Coleman, Humane Society Leaders in America (Albany:
American Humane Association, 1924) at 42.
(2019) 5 CJCCL
concern alone, not that of the legal system”.2 roughout the country
the scope of criminally prohibited harms to animals was narrow, and the
punishment minimal.
Henry Bergh’s ASPCA was instrumental in the development of New
York’s animal protection bill of 1866, which served as a template for
modern criminal law reforms across the country.3 e f‌irst of two key
features in the Bergh-inspired law made it a misdemeanor of‌fense to
“over-drive, over-load, torture, torment, deprive of necessary sustenance,
or to be unnecessarily or cruelly beaten, or needlessly mutilated, or killed
as aforesaid any living creature”.4 As Favre and Tsang point out, this New
York law applied regardless of the ownership of an animal, and it covered
negligent as well as intentional acts.5
Of course, legal reforms alone do not always translate into
meaningful change on the ground. ese more expansive laws might
have been meaningless if the ASPCA had no means of enforcing them.
But Bergh’s adept political sense had recognized as much, and a second
notable element of the legislation he crafted was a novel mechanism for
enforcement. Rather than relying on the state to police animal cruelty,
Bergh’s statute granted police powers to Bergh himself. at is, of‌f‌icially
designated agents of the ASPCA were allowed to “make arrests and
bring before any court…of‌fenders found violating provisions of this
act”.6 According to Favre and Tsang, “[t]his delegation of state criminal
authority to a private organization was, and is, truly extraordinary”.7
Bergh’s reforms are widely heralded as ushering in a turning point
in the country’s view of the legal status of animals. He expanded the
criminal law and ensured its enforcement. Henry Bergh loved animals,
2. David Favre & Vivien Tsang, “e Development of Anti-Cruelty Laws
During the 1800’s” (1993) 1:1 Detroit College of Law Review 1 at 4.
3. As Coleman observed in 1924, “[e]very state in the Union has testif‌ied
to the soundness of [Bergh’s] work by passing legislation for animal
protection modeled after the laws which he caused to be enacted in New
York State” (Coleman, supra note 1 at 61).
4. NY Rev Stat ch 783 § 1 (1866).
5. Favre & Tsang, supra note 2 at 14.
6. NY Rev Stat, supra note 4 § 8.
7. Favre & Tsang, supra note 2 at 17.

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