Monday, April 30, 2012
Laurie Serafino (Pepperdine University School of Law) has posted No Walk in the Dog Park: Drafting Animal Cruelty Statutes to Resolve Double Jeopardy Concerns and Eliminate Unfettered Prosecutorial Discretion (Tennessee Law Review, Vol. 78, 2012) on SSRN. Here is the abstract:
This article evaluates animal abuse and cruelty laws throughout the United States. It demonstrates that, although an emerging trend treats animals more like humans and less like property in some criminal cases and statutes, the laws of many states still adhere to the traditional view of animals as property, causing unique charging and sentencing issues that must be clarified in order to bring predictability and consistency to the law.
In the article, Professor Serafino explores the option of creating a new paradigm in this area, in which animals are treated as a hybrid category of "living property," "legal personhood," or some other type of entity entitled to equal protection, and in which animal cruelty statutes serve greater purposes than to protect property or enforce desirable moral character principles. She also discusses whether the injury of each and every animal can or should constitute a separate offense, and outlines the extent to which double jeopardy principles may apply to bar sentences on multiple counts. She argues that, by failing to legislate in this area, forty-one states have effectively allowed prosecutors unfettered discretion to charge defendants in these cases however they chose. Finally, she explores the challenges faced by courts and legislatures as they grapple with situations of abuse involving multiple animals, providing a comparative analysis of how this issue is being handled in various jurisdictions across the country.