Spinning Animal Cruelty

It is hard to escape bias in news reporting. For that matter, it always has. But last week, a story got universal praise and consistent coverage.

Congress passed and the president signed, to great fanfare, the “PACT Act,” the Preventing Animal Cruelty and Torture Act. The headline and first words of the newscasters were something like “animal cruelty is now a federal felony.”

It’s also completely false. Those reports were at least intentionally misleading and at worst a damn lie.  We have been served a helping of shameless bipartisan pablum.

[Should animal cruelty be illegal? Asking me that question is offensive. As one representing defendants, I didn’t do animal cruelty cases. As a prosecutor, I did not dismiss or make a deal in animal cruelty cases without the agreement of the animal control officer. That agreement was rare and should have been. So this post is not about animal cruelty so much is it is about the public swallowing a lie – hook, line and sinker.]

Let’s look at what the new statute says:

“(a) Offenses.—

“(1) CRUSHING.—It shall be unlawful for any person to purposely engage in animal crushing in or affecting interstate or foreign commerce or within the special maritime and territorial jurisdiction of the United States.

“(2) CREATION OF ANIMAL CRUSH VIDEOS.—It shall be unlawful for any person to knowingly create an animal crush video, if—

“(A) the person intends or has reason to know that the animal crush video will be distributed in, or using a means or facility of, interstate or foreign commerce; or

“(B) the animal crush video is distributed in, or using a means or facility of, interstate or foreign commerce.

“(3) DISTRIBUTION OF ANIMAL CRUSH VIDEOS.—It shall be unlawful for any person to knowingly sell, market, advertise, exchange, or distribute an animal crush video in, or using a means or facility of, interstate or foreign commerce.



That’s it.

This outlaws a sick but uncommon (and probably sexual) fetish and the distribution of videos to sick people.

Federal law contains little about animal cruelty.

Look for yourself – it consists of The Animal Welfare Act, 7 U.S.C. § 2131, et seq., [et seq. = “and sections following”], The Horse Protection Act, 15 U.S.C. § 1821, et seq., The Humane Methods of Slaughter Act, 7 U.S.C. § 1901, et seq., The 28-Hour Law, 49 U.S.C. § 80502 [providing that a common carrier, railroad, trucking company, ship’s master, etc., “may not confine animals in a vehicle or vessel for more than 28 consecutive hours without unloading the animals for feeding, water, and rest.”], The Animal Crush Video Statute, 18 U.S.C. § 48 [unlike PACT, it prohibits just the distribution of the videos], and The Animal Fighting Venture Prohibition Act, 18 U.S.C. § 49.   The last statute probably furnishes most of the federal prosecutions for animal cruelty because, among other things, it prohibits interstate dogfighting schemes.

And it’s the “interstate” part that means that most animal cruelty is not going to violate federal law.

We live under a Federal constitution. 

The Tenth Amendment (ratified December 15, 1791), says that “ The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

In other words, local crime is a local problem to be dealt with by local – that means statewide – statutes. Without some interstate effect, or occurence in a federal territory as opposed to a state, Congress does not have the power to prohibit a crime, no matter how serious the crime is.  The 10th amendment, as well as the “Commerce Clause,” [U.S. Constitution, Article I, Section 8] limits the powers of the national government. These powers have been stretch over the years but stretch to the point that animal cruelty, however bad, will automatically be a federal felony.  Drugs move in interstate commerce, so that’s why they violate Federal criminal laws.  Schemes and scams use communication devices or the mail, and that gives the Federal government power.  But murder?  Nope, it’s a state crime.  Sexual assault?  Ditto.  Robbery?  Mostly a state crime.

And so, for someone who cares about crime, it is FAR more important to track what happens in your state.  For Heaven's sake, don't depend on Congress to solve all of life's problems.  They don't have the power and they're not smart enough anyway.

Everybody political and all of the breathlessly dramatic media outlets have sold us a bill of goods.

Mizpah!