Outside the ballot box

When federal election results are being tallied on the evening of November 8th, the votes of nearly 6 million American citizens will be missing as a result of systematic disenfranchising laws that disqualify ex-convicts from voting. The majority of states in the U.S. enforce some penal restrictions on voting: In the most egregious cases, Florida, Iowa, and Kentucky permanently bar all people with felony convictions from voting while Alabama, Mississippi, Arizona, Nevada, Wyoming, and Tennessee permanently disenfranchise at least some ex-criminals. As you can see in this interactive state-by-state map of disenfranchising laws, the only states that do not restrict voting for ex-offenders are Vermont and Maine.

The practical implications of these laws are problematic for representative democracy, while the ethical grounds on which they stand call into question why they were imposed in the first place. The biggest and most obvious problem is that for those who have been convicted and are no longer incarcerated, being stripped of voting rights provides another barrier to reintegration and civic engagement already made difficult by challenges that exist in obtaining gainful employment, stable housing, and societal acceptance.

Proponents of disenfranchising laws argue that ex-criminals have forfeited their rights by engaging in activity that runs contrary to the goals of a lawfully-functioning society. Let’s put aside for a moment that not all those who are convicted and serve time are even guilty of the crimes for which they’ve been charged. This is a big problem, but we’ll assume that most who are sentenced are guilty and even so we can dismantle the arguments behind the practice of disenfranchising.

The next logical problem here is that no state strips voting rights for all types of illegal activity so instead we have a system in which some crimes lead to disenfranchisement while others don’t, even in instances when the alleged threat to the public good is nearly identical. Proponents would like to believe severity is commensurate with consequences, but the arbitrary nature of the justice system means that isn’t necessarily the case. For instance, a driver in Iowa cited thrice for operating a vehicle under the influence receives a felony sentence and is permanently barred from voting even after release. An equally unsafe driver who similarly violates traffic laws and is charged with reckless endangerment or excessive speeding while sober will not face the same disenfranchisement despite that their behavior is a similar threat to the safety of the public and can reasonably be assumed to result in the same outcome (property damage, injury or loss of life, etc).

This arbitrary lineation and disenfranchisement violates the bioethical principle of justice, described by Stanford Medical as the concept of fair distribution of resources (or in this case, consequences) among society. In the case of the drunk drivers versus reckless drivers, states make their best guess at what constitutes impairment, with the majority thresholds falling around a .08 blood alcohol concentration (BAC). Our understanding of neurobiology, tolerance, toxicity and metabolism, however, recognizes that this is an inexact science and a nondrinker with an even lower BAC may be significantly impaired while someone with a higher tolerance is able to maintain homeostasis and normal functioning well over the .10 mark. This is an unfortunate inexactitude but realistically necessary as a preventive mechanism for deterring drunk driving.

However, the permanent disenfranchisement that happens for one but not the other makes no sense through the lens of the justice principle. It also makes no sense from a penal perspective, because disenfranchisement is unlikely to be an effective deterrent against such crimes since the consequences are often years in the future.

There are myriad reasons why a repealing of disenfranchisement laws results in a more just, equitable, and most importantly, democratic society. Permanent barring of voting is a counterproductive and oppressive practice that discourages reintegration and erects insurmountable barriers to representation that no free citizen should be without.

– Tyler

Corporate animals or social welfare

Perdue raises 676 million chickens annually, and for the first time, these chickens are being given the opportunity to enjoy sunlight.

The company is overhauling its animal welfare practices, and the changes have the potential to influence other producers in the country to follow suit. They will be following standards similar to those in Europe that has long been considered unnecessary and overly costly for the poultry industry in the United States. Their large position in the marketplace gives them unmatched power over the food industry. The chickens at Perdue will have windows, additional space in barns, and the company is investigating its breeding practices to potentially decrease the speed of growth in order to avoid the multiple injuries to the animals this practice has caused. Given this influence, is corporate social responsibility the answer to issues in animal welfare?

Corporate social responsibility (CSR) is a concept that suggests corporations may be held socially and ethically accountable by a variety of stakeholders including customers, employees, governments, communities, NGO’s, investors, unions, regulators and the media.[1]Formal discussion on the merits, effects, and definition of CSR began in the 1950’s.[2] It grew throughout the last half century and has now been adopted as an important part of business practice and an expectation of the public.[3] Social responsibility means that a business is aware and responsive to society. This obligation could translate into reduction of pollution, improvement of the community, better health benefits for employees, or changes in production requirements to improve animal treatment.

Positives of Corporate Social Responsibility in Animal Welfare

            There are many positive aspects to corporate social responsibility in the food industry. At its core, it represents a movement to consider the impact of practices in business that effect animal welfare.

  • Animal welfare can actually improve no matter where the request comes from, be it Perdue, the government, or animal rights activists.
  • Companies can require sweeping changes for their suppliers. In 2007 Burger King began requiring that its pork and eggs come from suppliers who did not confine their animals to cages and crates, and that they would favor suppliers who rendered the animals unconscious before slaughter.[4]
  • Companies influence each other. National restaurant chains including Burger King, Wendy’s, Denny’s, Red Robin, Quiznos, Sonic, Hardees and Carl’s Jr., have all started using cage free eggs.[5]
  • CSR is often proactive. Consumer criticism of perceived CSR deficiencies can be very damaging to a firm’s profitability.[6] CSR may draw attention to the problem and establish greater awareness of the unnecessary suffering of animals. Consumers who may not have paid attention to the production of their food would know more about it because the places they eat or shop were talking about it.
  • Finally, CSR in food production gives people a direct power to influence industry practice. Platforms like Facebook and twitter make a company’s practices more visible and the potential for backlash is significant.[7] It is a way of providing for animal welfare that is not based in government regulation in a time when government regulation is anathema.

Negatives of CSR in Animal Welfare

  • Corporate social responsibility is influenced by a company’s profit. If the mechanics of profitability shift drastically away from animal welfare, the corporation may renege on their policy. CSR gives no guarantee.
  • Corporate social responsibility in scope, method, and motive is entirely controlled by the corporation. The corporation establishes the definition of what is humane treatment. If the corporation, like Perdue, is in control, there is no enforcement mechanism. Relying on the public as a check is limited because animal production is not a very visible industry.
  • Self- regulation by corporations may be a way to avoid regulation by the government. In creating their own policies, these companies can make minimal changes to avoid public scrutiny, and remain free from laws that might require bigger change, more frequent check- ups, or putting the industry in a more public setting.

Current Laws

The Animal Welfare Act and many state animal cruelty laws don’t cover farm animals.[8] Current U.S. laws that cover farming were enacted to protect U.S. family farms from unfair competition, and so there are few regulations.[9]There are a few federal laws that regulate cruelty to farm animals but they fall short of being effective based on enforcement and limited scope. These are the Twenty Eight Hour Law, the Humane Methods of Livestock Slaughter Act, and the Animal Welfare Act.

The Twenty Eight Hour Law, first enacted in 1873 and amended in 1994, requires that animals in transit get to stop every 28 hours for water, food, and exercise.[10] There is no private cause of action in the law, meaning the attorney general alone can prosecute.[11] Not only that, but this law has been interpreted not to cover poultry. The advancement from train travel to trucking has not been acknowledged meaning enforcement of this law is rare, leading truck drivers not to adhere to it.[12]

The Humane Methods of Slaughter Act was originally passed in 1958 and requires that animals be stunned to the point of unconsciousness before they are slaughtered.[13] This law is limited in that it entirely excludes birds,[14] which make up 90% of animals slaughtered for food.[15] This law does have a private cause of action and in Jones v. Butz, a plaintiff challenged one of a practice as inhumane because the animal was aware of its pain, but the Court upheld the slaughter method under the Act.[16]

The Animal Welfare Act (AWA) was passed in 1966 and represented the first legislative effort to regulate the animal research industry.[17] The Act was designed to respond to the large number of dogs and cats that were stolen for use in animal research by requiring research facilities to purchase animals only from authorized dealers.[18] It also provided regulation as to the humane handling, treatment and transportation of animals by dealers and researchers.[19] This Act has been amended over the past 40 years struggling to define “animal,” recognizing further protections for animals, and creating specific guidelines for animal researchers on aspects of research including the use of anesthetics and how many operations a single animal could undergo.[20] The Animal Welfare Act is the broadest animal protection law in the United States and is the primary federal law covering the humane treatment of animals in research and exhibition. Despite the significance of this act, it has enforcement problems and does not cover animals in the food or agriculture industry.

What Should We Do?

Improving regulation in the United States means additional funding, the AWA should be expanded to cover animals in food production, and Congress can create a private cause of action so that private citizens may sue to enforce the AWA. Yet, creating regulation faces challenges. Regulation in Europe of chicken cages is widely viewed as unsuccessful. Twelve years following the date marked to eliminate battery cages in Europe, half of the 27 European Union nations have failed to fully comply.[21] This has created problems for those farmers who have spent a lot of money to comply and face competition from those farmers who still operate factory farms.[22] Dealing with the cost to farmers would be difficult and in that area CSR seems to be the better option because McDonald’s and the like can agree to pay more for a humanely treated production process. Regulation can’t do the same to modify the contract between the farmers and the food industry, but perhaps adequate subsidies would reduce the costs to farmers.

Another way to affect change for animals in food production in the United States is the use of creative litigation. Creative suits have been based on false advertising under the Federal Trade Commission Act (FTC Act) and plaintiffs have filed suit under the Federal Anti- Trust Laws, environmental protection and nuisance claims. Consumers depend on the producers to be accurate in their labeling practices, but because there is not regulation concerning the meanings and verification of these labels, there is a lot of room for misleading claims on animal products.[23] For example, in 2009 the Humane Society of the U.S. (HSUS) accused the International House of Pancakes (IHOP) of putting false claims concerning their serving “cruelty free food” on their website. HSUS filed claims with the FTC and the Securities and Exchange Commission seeking for IHOP to stop making this claim.[24] IHOP acquiesced, removing the claims from their website and the company began using cage free eggs.[25] In addition, antitrust litigation has played a role. In 2010 plaintiffs filed a class action anti- trust suit against certain shell egg producers including Land O’ Lakes and Rose Acre Farms alleging they fixed prices using a classic supply restriction scheme.[26] Two defendants decided to settle for large amounts[27] but the publicity put the egg industry on watch and gave many consumers a look into production practices. Environmental protection laws, nuisance laws, and some state laws have also been a part of litigation against factory farming. Litigation is limited by the fact that several animal protection laws do not have private rights of action for citizen suits against big food, but creative litigation has been able to take other laws and use them to create positive outcomes for animals in food production.

Corporate social responsibility has developed over the last 60 years into a necessary practice for modern business. It is an exciting opportunity for corporations who want to be involved in their communities and to make real and positive changes for society. In the context of animal welfare there have been several examples of large corporations leading the way to better treatment of animals in food production. CSR is a great way for companies to give back, and despite some reservations about its genuineness, it should not be discouraged.

Supporting CSR though, does not mean that other options for protecting animal welfare should be disregarded. CSR has at times, in the United States, been at the forefront of animal treatment requirements, but because corporations have competing motivations concerning their profits and their shareholders, CSR cannot be the only measure of protection for animal welfare. In addition, the lack of enforcement in CSR is a concern that means other checks on the industry like government regulation or private rights of action should be in place.

It is a bad idea to rely on CSR, but it is a great idea to promote it. The positives are real in that corporations can make sweeping changes and spend their own money to do right by animal welfare, but the limitations on enforcement and the problems of self- regulation mean that corporate social responsibility can’t be the only mechanism for improving animal treatment Mark Bittman said, we can pat them on the back but we must “keep reminding them that there’s a long way to go.[28]

-Grace

 

[2] Caroll, Archie B. “Corporate Social Responsibility.” Business & Society, 38. 3 (Sept. 1999): 268- 295.

[3] Id.

[4] Martin, Andrew. “Burger King Shifts Policy on Animals.” New York Times 28 March 2007. Available online at: http://www.nytimes.com/2007/03/28/business/28burger.html?pagewanted=all

[5] Wal- Mart: Private Label Eggs All Cage Free. The Humane Society of the United States, Feb. 18, 2010. Available on the internet at: http://www.humanesociety.org/news/press_releases/2010/02/wal-mart_021810.html

[6] Id.

[7] Id.

[8] Id.

[9] Fox, Nicole. “ The Inadequate Protection of Animals Against Cruel Animal Husbandry Practices Under United States Law.” 17 Whittier Law Review 145. (1995): 145-181.

[10] 9 C.F.R. § 89.3

[11] Fox, Nicole. “ The Inadequate Protection of Animals Against Cruel Animal Husbandry Practices Under United States Law.” 17 Whittier Law Review 145. (1995): 145-181.

[12] “Farmed Animals and the Law.” Animal Legal Defense Fund. n.p., n.d. 22 April, 2012.

[13] 7 U.S.C.A. § 1902

[14] Id. See also Levine v. Conner. 540 F.Supp.2d 1113, 1121 (N.D.Cal. 2008).

[15] “Farmed Animals and the Law.” Animal Legal Defense Fund. n.p., n.d. 22 April, 2012.

[16] Jones v. Butz. 374 F.Supp. 1284, 1290 (S.D.N.Y 1974).

[17] Gardner, Joshua E. “At the Intersection of Constitutional Standing, Congressional Citizen Suits, and the Humane Treatment of Animals: Proposals to Strengthen the Animal Welfare Act.” George Washington Law Review. 68. (February 2000): 330-360. See also, 7 U.S.C. §§ 2131- 59.

[18] Gardner, Joshua E. “At the Intersection of Constitutional Standing, Congressional Citizen Suits, and the Humane Treatment of Animals: Proposals to Strengthen the Animal Welfare Act.” George Washington Law Review. 68. (February 2000): 330-360.

[19] Id.

[20] Id.

[21] Casert, Raf. “Illegal Chicken Cages: Lack of Enforcement Indicates Larger European Union Policy Issues.” Huffington Post. 11 Jan. 2012. Web. 22 April 2012.

[22] Id.

[23] Cranston, Sarah. “So Sue Me: How Consumer Fraud, Antitrust Litigatio, and other Kinds of Litigation Can Effect Change in The Treatment of Egg Laying Hens Where Legislation Fails.” Rutgers Journal of Law & Public Policy, 9 (2012): 72- 105.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Bittman, Mark. “OMG: McDonald’s Does the Right Thing.” The New York Times. 13 Feb. 2012.