Should I embrace a felony conviction?

I don't want to be a felon. But there are some benefits.

NOTE: I’m writing every day in memory of Lisa, who died on October 13. Not all of these posts will be sent out by email, and some I may write from jail/prison, as I am on trial right now. So if you want to follow this journey, visit the blog every day.

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As most of you have probably heard, I am facing two felony charges in relation to the removal of a baby goat from a meat farm in Transylvania County, North Carolina. The potential sentence is 39 months for each offense, meaning a total of 6.5 years in prison.¹ That maximum sentence is unlikely, but there is a history of animal rights activists facing unusually severe punishment for their crimes. Given the judge’s leanings in this case, that might very well happen here.

I’ve written previously about the personal fears and political opportunities presented by this trial. I’ve also stated many times, after advice from legendary figures such as gay rights activist Evan Wolfson, that “we win even if we lose.” The reason is that, if we harness the sympathy that a prosecution can engender, even a “loss” in court will build power for the movement. This is a lesson of many successful social movements over the past 100 years.

There’s also a distinct legal reason, however, that a loss in court, in some ways, presents more opportunities than a win: Our right to appeal. There have been plenty of procedural errors over the last week — including denying me the right to make a complete opening statement and denying an entire body of relevant evidence (namely, my observations of the farm before the night in question) — that could form the basis for an appeal. But the most crucial potential appeal questions relate to the animals.

Is an animal a “person” under the law?

Is the intent to rescue a legitimate defense to a charge of larceny?

Do citizens have the “right to rescue” animals who are suffering and/or on the verge of death?

These are important questions, not just for this single proceeding, but for our entire legal system. And while a win at the trial court level would set a powerful precedent, it would not have binding legal impact on future courts the way an appellate victory would. Juries, after all, do not have to explain their reason for a verdict. And trial court decisions have no binding legal impact on future judges.

That’s not true for appeals. When an appellate judge makes a ruling, and drafts an opinion on some issue of substance, it becomes the law of the land. And the higher the appellate court, the wider the scope of that ruling. Appellate judges are also generally more thoughtful and reflective, as they have both the time and resources to give attention to legal issues. Finally, an appeal, if we can move it into federal court, could have nationwide impacts. In a wildly unrealistic scenario (at least for now), it could even land us in the Supreme Court.

But perhaps the most important reason an appeal is an important opportunity is because appeal is how many of the most important expansions in legal rights have been achieved over the last 100 years. Starting with the Warren Court in 1953, appellate advocacy, from Brown v. Board of Education to Roe v. Wade, has allowed new legal and moral theories to become the law of the land. And fighting for animal rights, through criminal defense, is one of the most promising avenues through which this appellate advocacy can work.

Take, for example, the question of animal personhood. The vast majority of courts have simply dismissed legal actions seeking a ruling on animal personhood, on the grounds that there’s no one with “legal standing” to bring the suit. The animal themselves is not recognized as the sort of thing that can bring a suit. And any human acting on an animal’s behalf has no “injury in fact",” i.e., a cognizable harm that can be resolved by the court system, that gives them the right to bring suit.

In a criminal case, however, where a human defendant is arguing that it was necessary to save an animal’s life, we can leverage the human’s clear right to present a defense to advocate for the animal’s right to be treated as a “person” — i.e., a living creature whose interests are visible to the law. The reason is that the defense of necessity, in many jurisdictions such as North Carolina, requires a finding that an animal is a “person.” While most courts have dismissed this argument outright in the context of general litigation, offering the argument as part of a human being’s defense in a criminal case is much more favorable terrain. An appellate court cannot simply say, “There’s no injury here.” A defendant’s freedom is literally at risk! And the history of appellate courts, over the last 100 years, has been favorable to defendant’s rights.

It’s how we got the idea of Miranda warning; the right to remain silent; the right to counsel; and so many other crucial legal rights. And we can use that same tendency in the appellate courts, in theory, to expand the horizons for animal rights.

But that all depends on a conviction in the lower courts. A conviction, in short, is a way to leverage a human being’s freedom to make progress for the animals’. Does it lessen the personal consequences? No. But does it present a greater political opportunity? Just as surely, yes.

1. We previously stated that the maximum sentence was 38 months in total. The judge corrected us on the first day of trial because there’s apparently no guarantee that various sentencing factors won’t adjust the total sentence upwards.