Prisoner 914095 waited on death row in New Jersey's Bergen County jail while his lawyer worked furiously to have his sentence overturned. The case had taken years to wend its way through the state's court system. Now the prisoner's attorney was making a final appeal to the New Jersey Supreme Court. Friends and family knew that if the tribunal rejected the defense argument, state officials would likely be given the go ahead to carry out the sentence: death by lethal injection.
Meanwhile, calls of support for the condemned were coming in from all over the world. French actress Brigitte Bardot wrote a letter to then Gov. James J. Florio asking him to pardon the prisoner. Public demonstrations against the conviction and sentence were taking place as far away as Kenya. All of this activity was attracting the attention of The New York Times, The Washington Post and other newspapers.
It is not unheard of for people on death row to receive support from celebrities and others. Still, this case was special. First, the condemned was not a person, but a dog named Taro, whom the state had ordered euthanized after finding that he had bitten a 10-year-old girl. More important, Taro's case was taken on by attorneys working in a new and nebulous realm of public advocacy known as animal rights law.
Using the courts to work on behalf of animals is not easy. Unlike other forms of public interest law, there are no clear constitutional or statutory markers, like the 14th Amendment or the Clean Water Act, to guide judges and attorneys. “We try to argue that the law, at least on some level, recognizes that animals have some sort of rights,” says Gary Francione, founder and co-director of the Animal Rights Law Center at Rutgers University.
Often, animal rights lawyers try to reinterpret existing animal welfare laws. In Taro's case, lead attorney Isabelle Strauss of East Orange, N.J., argued that the state's vicious-dog statute, under which the 2-year-old Akita was impounded, was flawed because it did not account for normal canine behavior. She also offered evidence to suggest that Taro, a dog with no history of violent behavior toward humans, had been provoked by the little girl.
Sometimes animal rights lawyers base their arguments on laws that were written without animals in mind. For instance, Francione has used the First Amendment to successfully argue that students have the right to refuse to dissect or vivisect animals. In several cases, attorneys have filed suits against policemen for shooting people's pets, arguing that this deprived the individuals of their property without due process of law.
Strategies like these have given lawyers some latitude in making their case for animal rights in the courts. But, Francione says, as long as animals continue to be considered property in the eyes of the law, he and other lawyers will never be able to make more than incremental improvements in the lives of other creatures.
Still, animal rights law is slowly becoming more established. “It's definitely an area of the law that's growing . . . and is more recognized now than it was 10 years ago,” says Strauss. Indeed, the Animal Legal Defense Fund (ALDF), a San Rafael, Calif., group that litigates on animal issues, maintains a compendium of animal rights cases and attorneys. A growing number of law firms are now accepting animal rights cases as part of their pro bono or charity work. In addition, there are now a number of animal rights law journals as well as textbooks on the subject, including Francione's Animals, Property and the Law.
Moreover, a number of schools, including the Pace University School of Law in New York and the Detroit College of Law, offer animal rights law courses. And there is the animal rights law clinic, run by Francione and his wife, attorney Anna Carlton, at Rutgers. Law students at Rutgers can earn six credits by taking an animal rights law class taught by Francione and working on animal rights cases at the clinic.
Still, animal rights is not likely to become a major source of public interest litigation any time soon. For one thing, animal rights law is not regarded by most lawyers and judges as a valid legal discipline. According to Francione, Strauss and others, most people in the legal profession are skeptical, dismissive or downright hostile to the field.
Another important, if more mundane, problem is money. Many animal rights cases pay little or nothing, making it difficult for lawyers to do this type of work unless they are paid by a university or other nonprofit organization. Strauss, for example, at one time worked almost exclusively on animal cases. Although Taro's owners and other clients paid for her services, “it simply was not lucrative enough,” says Strauss, who is no longer a practicing attorney.
Still, she can take some satisfaction in the final resolution of her star client's case. Although the courts never reversed the order to euthanize Taro, New Jersey's Republican Gov. Christine Todd Whitman pardoned him on Jan. 28, 1994.