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† Criminal InJustice is a weekly series devoted to taking action against inequities in the U.S. criminal justice system. Nancy A. Heitzeg, Professor of Sociology and Race/Ethnicity, is the Editor of CI. Kay Whitlock, co-author of Queer (In)Justice, is contributing editor of CI. Criminal Injustice is published every Wednesday at 6 pm.

Animal Rights, Human Wrongs and the Limits of the Law
by nancy a heitzeg

For Inesperado ~

On March 19, 2014, Joe Drape and the New York Times published the following article, “PETA Accuses Two Trainers of Cruelty to Horses.” The trainers in question were Steve Asmussen, who is second in career victories and racing’s fifth all time $$ winner,, and his right hand man Scott Blasi. The complaints come as the result of an undercover investigation (with 7 hours of video) at Asmussen’s barns at Churchill Downs, home of the Kentucky Derby, and Saratoga Race Course in New York. PETA filed a 285 page complaint with both state agencies and federal authorities charging that Asmussen  “forced injured and/or suffering horses to race and train.” Among the infractions documented in the video (PETA quoted and paraphrased below):

• “Although it’s approved only as a prescription medication for horses with hypothyroidism, the drug thyroxine was being administered to many, if not all, horses in Asmussen’s New York stable, without any apparent testing or evidence of any thyroid condition. (This is the same drug linked to the death of 7 Bob Baffert – trained horses in a sixteen month period ). This drug was recklessly administered seemingly just to speed up metabolism—not for any therapeutic purpose.

• Lasix—a controversial drug banned in Europe on race days—was injected into “basically all” of Asmussen’s horses who were being raced or timed in New York. A powerful drug meant to prevent pulmonary bleeding in the lungs during extreme exercise, Lasix is a diuretic that can serve as a masking agent for other drugs and also dehydrates horses to make them lose weight and run faster. One of New York State’s top horse-racing veterinarians admitted on camera to PETA’s investigator that Lasix is a performance-enhancing medication.

• Horses’ legs showed multiple scars from being burned with liquid nitrogen―a process called freeze-firing―and burned with other irritating “blistering” chemicals, purportedly to stimulate blood flow to their sore legs.

• Horses were also given muscle relaxants, sedatives, and other potent pharmaceuticals to be used for treating ailments such as ulcers, lameness, and inflammation, at times even when the animals had no apparent symptoms.
• Some horses were reportedly electro-shocked with concealed buzzers. One of Asmussen’s trainers, Scott Blasi, jokingly called his top jockey, Ricardo Santana,  a “machine rider”―a nickname for riders who shock horses. And Hall of Fame trainer D. Wayne Lukas laughed as he described how, at New Mexico’s Ruidoso Downs racetrack, it was like “a full-blown orchestra. Zzz. Zzz. Zzz. Zzz. Everybody had one.”
  
• Of particular note was the abuse suffered by Nehro, a horse that came in second in the 2011 Kentucky Derby. What race enthusiasts and reporters never knew was that just a few years later, Nehro was racing and training on chronically painful hooves with holes in them. One of the hooves was, at one point, held together with superglue…yet Nehro was kept on the track and forced to participate in workouts. Just two years after that Derby finish, Nehro developed colic and went mad from pain. He was euthanized at Churchill Downs on the day of the 2013 Kentucky Derby.”
• PETA also accused Asmussen of employing undocumented workers, requiring them to use false names on Internal Revenue Service forms and conspiring with Blasi to produce false identification documents, according to complaints filed with state and federal agencies.

In the immediate aftermath,  Scott Blasi has been fired by Asmussen Stables, and Asmussen himself was removed  as one of the finalists for the Racing Hall of Fame. Zayat Stables  (owners of Nehro) has terminated Steve Asmussen and moved all 12 of its horses that were previously in the trainer’s care. 3-year-old Finesse – ridden by Ricardo Santana and trained by Steve Asmussan – collapsed and died of an apparent “cardiac issue” on March 21 after finishing second in a race at Oaklawn. And, the New York State Gaming Commission, the Kentucky Horse Racing Commission and the New Mexico Racing Commissions have launched investigations. Demands increased again for federal oversight of horse-racing and the passage of the Horseracing Integrity and Safety Act of 2013 (Senate Bill 973 and House Bill 2012). To be sure, more to follow.

For even causal observers of horse-racing, these revelations, however disturbing, were no surprise. Horse-racing is the USA is not the “sport of kings” but rather a marginalized meat-grinder industry which chews up both young and old horses at an alarming rate. It is a loosely regulated association of state “gaming” commissions with little Federal oversight, (and in fact, Federal exemptions to profit from  off-track and internet betting). an industry where serial dopers are Eclipse Award winners and mufti-millionaire breeders may neglect and starve their horses. U.S. horse racing is awash in drugs – both legal and otherwise. Lasix, steroids, Clenbuterol, cortisone, lidocaine, mevipacaine, EPO, cobra venom, “milk-shaking”/TCO2, amphetamines and vodka injections are just a partial listing of licit and banned substances used regularly in racing.

Mostly, it is an industry that kills off its’ athletes. Some of the dead are famous like the ill-fated Barbaro, Eight Belles who died in the dirt with two broken ankles after finishing second in the 2008 Kentucky Derby, and Go For Wand, whose breakdown in the 1990 Breeder’s Cup Distaff was one racing’s most gruesome nationally televised moments. Most of the dead are lesser known – some former stakes horses, like Inesperado. that have fallen down through the claiming ranks, others are mere 2 year olds, and many are old geldings raced endlessly long past their prime. The majority of horses die in low level claiming races or during training with little fanfare and perhaps less remorse. They have inelegant names and ignominious ends like Private Details whose breakdown caused a 5 horse pile-up at Aqueduct or Mr. Smee, a five year old gelding who broke a hind leg, went through the rail and drown in the in-field lake at Lone Star Park.

For obvious reasons, there is little transparency here. The industry only recently began to collect and does still not regularly publish national fatality data, but an average of 24 horses suffer fatal breakdowns at tracks across the country every week, – more than 3 Dead per Day — and 10,000 broken-down thoroughbreds are sent to slaughter every year. (Please see the excellent New York Times investigation, Breakdown: Death and Disarray at America’s Race Tracks).

For jaded observers, questions remain as to whether or not this will finally finally finally — how many do you need? – be the wake-up call that leads to federal oversight and long needed horse-racing reforms. But no one is holding their breath. The truth of the matter is this – perhaps the harshest legal consequences to result from the ensuing investigations will be for the Federal  violations around use of undocumented workers and falsification of tax records. Even if the accusations of animal cruelty meet the legal bar (and they should), this case will most likely reveal again, that when it comes to animals, there are many limits to the law.

The Limits of Legal Protections for Animals

Much like the horses, most animals in the United States are mostly unprotected by the law. Despite increases in “animal welfare” legislation in the mid to late 20th century, their legal status remains that of  “property”, and the protections they are afforded are largely in the negative, i.e. the right not to be abused. These laws are often weakly worded, and even when they are not, under enforced. As a result, tens of billions of animals are used for entertainment, medical, psychiatric, military and consumer product testing/experimentation, fur and/or leather, meat milk and eggs, breeding operations and more with minimal regulations and even less enforcement efforts protecting them from injury, pain or death.

State Laws

The bulk of animal protection statues are at the state level. State regulations vary widely in terms of degree of regulations and what animals are covered. While some forms of animal cruelty is now a felony in 47 states, there is great variation in which animals are covered. Many states limit coverage to “companion animals”, and often etch out extensive exceptions for a variety of practices such as “farming, hunting and research”. Or even more expansively for “fishing, hunting, trapping, veterinary practice, farm management, humane slaughter, research, training or discipline of a vertebrate animal, protection of person or property, and prolonged suffering of the animal.” (See, for example, Indiana) That excludes almost all animal “abuse” from prosecution doesn’t it?

Even states like Minnesota, which prohibits the torture of “[E]very living creature except members of the human race” (MINN STAT. § 343.20, subd. 2) , certainly does not investigate nor prosecute the daily cruelty that is in a fact a requisite of factory farm operation, transport and slaughter. It also does not extend to “wildlife” or prohibitions on hunting or trapping, including that of formerly endangered species such as the wolf.

Further, at closer examination, many state statues are ultimately designed at protecting humans rather the animals themselves; this includes a plethora of new legislation on “vicious animals”, dangerous dogs”, “exotic animal ownership and exhibitions”, and use of animals in sexual assault and domestic violence cases. (See Animal Legal & Historical Center , Michigan State University College of Law for a complete overview of recent state amendments). For a complete overview of all animal protection legislation in your state, please see:

Animal Protection Laws of the United States of America and Canada, Animal Legal Defense Fund  (Download the complete compendium)

Federal Legislation

Animals are even less protected on the Federal level. The bulk of the legislation here falls under the administrative jurisdiction of the United States Department of Agriculture (USDA) with oversight carried out by U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS). Major federal regulations ostensibly ensure ” minimum standards of care and treatment”  for certain animals bred for commercial sale, used in research, transported commercially, or exhibited to the public (Animal Welfare Act or AWA, 1966 with later amendments, most recently, federal bans on animal fighting (Animal Fighting Prohibition Enforcement Act, 2007 and 2014), prohibit inhumane slaughter and transport (Humane Methods of Slaughter Act, 1958 with additional amendments), and prohibit practices related to the soring of horses (Horse Protection Act of 1970). A full list of federal regulations re animals can be found here. You will note that this is such a Federal priority, this list was last updated in 2009.

Books could be written (and  have many  been) on the endless legislative and enforcement loopholes in all these “regulations”. The Horse Protection Act of 1970 applies almost exclusively to Tennessee Walkers and their specialized shows; it has no jurisdiction over other breeds or horse events, nor to the horse-racing debacle of dope and abuse outlined in the introduction. The Animal Fighting Prohibition Enforcement Act – like comparable animal protection legislation –  relies on reaction to violations rather than prevention. In addition, the prohibitions here do not apply to depictions of animal fights or to the sale of animal fighting training manuals. This was once banned under the federal Depiction of Animal Cruelty Act, a law criminalizing visual or auditory depictions of animals being “intentionally mutilated, tortured, wounded, or killed” if such conduct violated federal or state law where “the creation, sale, or possession [of such materials]” takes place.” (The law was aimed principally at makers and distributors of “crush videos” wherein women wearing high heels grind small animals to death.) That law was declared in violation of the First Amendment by the Supreme Court in 2010, U.S. v Stevens. (Despite the never-ending racialized vilification of Michael Vick as the Public Face of Dog-fighting, old white man Bob Stevens, of Dogs of Velvet and Steel fame, is it. But that is another story. Someday.)

The two pieces of Federal legislation designed to protect the greatest number of animals are actually the weakest of all. The AWA, which outlines the “minimum” standards of care and/or suffering for animals used in experiments and exhibits, explicitly excludes 95 percent of all animals used in laboratory experiments. Mice, rats, birds, livestock and cold-blooded animals such as snakes, frogs, turtles and fish are exempt from the AWA. Humane Methods of Slaughter Act is equally illusory. Exemptions are made for Kosher and Haal slaughter, and inspections precursory, with regularly timed walk-throughs that often fail to capture the routinized abuse of inadequate stunning and other unspeakable abuses. Those scenes remain to captured by the undercover investigators, whose revelations are often the only impetus for the USDA and APHIS to take action. Case in point: The largest meat recall in U.S history – some 143 million pounds of beef, some of which was used in school lunch programs, was made by the Westland/Hallmark Meat Company after undercover Humane Society footage showed workers kicking downed cows and using forklifts to force them to walk. Even then, the primary concern was food safety ( downed cows are associated with mad cow disease) not animal cruelty.

Legal Threats to Animal Advocates and Activists

While animals remain ill-protected by existing legislation, law-makers are working overtime to make the work of those who advocate for them more difficult, and in fact, felonious. On both the federal and state levels, the successes of animal rights activists in exposing the manifold abuses of related “industries” has resulted in increasing harsh laws that attempt to limit animal (and environmental activists. Regardless of whatever anyone may feel about the “ethics” of undercover investigations, it is indisputable that this approach has been the cornerstone of exposés of hidden cruelty, and the impetus for both public outrage, bad publicity, boycotts, and calls for change. It is indisputable too that this approach, along with the monkey-wrenching property destruction tactics of Animal and Earth Liberation Fronts ( ALF and ELF), have put economic dents in mufti-billion dollar industries. And so, the back lash.

Animal Enterprise Terrorism Act (AETA)

Long before 9/11, the U.S government was expressing concern over the threat of terrorism. Domestic terrorism was the focus in the early 1990s, and no the focus was not right-wing militias, or the KKK or abortion clinic bombers, but instead, animal rights activists  were deemed the Number 1 Domestic Terrorism threat.  The result was the Animal Enterprise Protection Act of 1992. That was chilling enough (see The SHAC 7), but greater cause for concern is the 2006 amended Animal Enterprise Terrorism Act (AETA) which now terms mere vandalism “terrorism” and expands the scope to constitutionally questionable limits.

The “Green Scare” relies on this harsh legislation and a variety of nefarious tactics to disrupt once lawful protest against animal abuse.  There is no better critic of this dangerous legislation and chronicler of the related backlash towards animal rights/environmental activists than Will Potter of Green is the New Red, cited here and highly recommended. Please  see below for his full Analysis of the AETA.

For additional background and legal analysis, see the Center for Constitutional Rights which is currently bringing a federal legal challenge to the AETA in  Blum v. Holder, and Democracy Now! “Why Did the FBI Label Ryan Shapiro’s Dissertation on Animal Rights a Threat to National Security?”

“Ag-Gag”

Back in the states, the latest tactic for suppressing undercover investigations are  so-called whistle-blower protection laws aka Ag-Gag, which heavily criminalizes the secret recording of animal abuses, well almost anywhere. Heavily backed by the meat milk and egg industries and pushed (as was the AETA)  by the American Legislative Exchange Council (ALEC), Ag- Gag  laws have passed in Utah, Iowa, Idaho, Missouri, Arkansas, Kansas and South Carolina.  Montana and North Dakota have comparable laws dating back to the early 1990s. These laws have been proposed and are pending or defeated in 15 other states. (For a detailed history see Mother Jones, Gagged by Big Ag).

Due to their broad reach into public places, the criminalization of reporting criminal conduct in the workplace, and the the chilling effect on free speech, the ACLU and  a broad coalition has legally challenged Idaho’s new law. Like other Ag-Gag laws, Idaho’s law  would makes it illegal for anyone to take photos or videos at a factory farm or slaughterhouse without the owner’s express consent. If convicted , a whistle-blower would face up to a year in prison and a $5,000 fine. Ironically, that penalty is more than double the penalty for animal cruelty.

Because this goes on unprosecuted everyday. And they don’t want you to see it.

 Thoughts…

After this exhaustive ( and exhausting) look at animals, their advocates, and the law, we come to the conclusion here that we always do: The law will not save us, and indeed, may surely harm us. This is not to say that efforts to legally protect animals should abate — they must not. The law if nothing else serves an important symbolic function, one that sends a message as to what and who matters in a society driven by so many codified rules.

But it is important to remember that much of the legal protections currently in place are largely illusory, and much like those associated with corporate crime, are pieces of loop-hole laden fluff, which are rarely enforced and serve mostly to create a veneer of regulation where little exists. And perhaps, it is even more important to remember too, that calls for criminalization most often splash back in repressive ways. In the end, our law is designed to protect property/profit, and as AETA and AG-Gaga have illustrated, those powerful interests often prevail at the expense of people who advocate for an end to abuse, and ultimately at the expense of the animals who are still legally regarded as mere property too.

What is required is an end to the idea of supremacy, an end to the notion that other species exist merely for our purposes, to be used and abused — often along with other supposedly “disposable” humans be they LSP Angola inmates or undocumented backside race track workers. Some are optimistic now that horse-racing may finally change, that preventive measures, surveillance, federal oversight and drug bans will end a culture seeped in abuse. But until the day that sentient beings matter more than money, until the day that justice is loved more than the law, the horses will be run into dust, the cattle will be prodded to slaughter,  the bears, milked for bile, driven to suicide, and the mighty, beautiful Blackfish consigned to life in a bathtub.

Until that day, there will be for the animals, literally, No Day Off.

No Day Off,  HBO Real Sports Documentary: “Running For Their Lives”

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