The Preventing Animal Cruelty and Torture (“PACT”) Act of 2019 established the first federal criminal penalties targeting the most extreme forms of animal abuse. Hailed by humane groups as a watershed moment in the development of animal welfare law, the PACT Act created a new federal crime: “animal crushing”—i.e., the crushing, burning, drowning, suffocation, and impalement of living non-human creatures. But as the first defendants convicted under the PACT Act face sentencing in federal courts, judges and other stakeholders find little direction in the Federal Sentencing Guidelines. The United States Sentencing Commission, which until recently lacked a voting quorum, has yet to promulgate an amendment to the Guidelines that accounts for this change in the law. Instead, the current framework perpetuates a loophole in which the recommended penalty for animal crushing is typically less than the recommendation for offenders convicted of creating or distributing videos of that conduct. As federal prosecutors increasingly bring charges under the PACT Act, this gap in the Guidelines will continue to lead to unjust sentencing disparities that do not adequately reflect the depravity of animal torture.
This Essay is the first to identify what it terms the “animal crushing offense loophole.” It offers three potential solutions on the eve of the Commission’s annual amendment cycle: the creation of a new Animal Crushing Guideline, the express recognition of animal victimhood, and the use of a set of sentencing factors that distinguish among animal crushing defendants.
In a 1999 hearing before the House Judiciary Committee, members of Congress were introduced to the growing interstate market in animal “crush videos.”1 1.H.R. Rep. No. 111-549, at 2 (2010), as reprinted in 2010 U.S.C.C.A.N. 1224, 1225.Show More Animal crush videos glamorize small creatures being tortured to death in brutal fashion, often for the viewer’s sexual gratification.2 2.Sirin Kale, ‘Sometimes They’re Boiled Alive’: Inside the Abusive Animal Crush Industry, Vice (Nov. 3, 2016, 9:50 AM), https://www.vice.com/en/article/d3gv7q/inside-abusive-animal-crush-fetish-industry [https://perma.cc/63P9-MRJX].Show More At the time, thousands of crush videos were available for purchase in some of the darkest corners of the internet.3 3.H.R. Rep. No. 111-549, at 2.Show More One such video, described in graphic detail by the Humane Society of the United States in a 2010 amicus brief, shows a speckled kitten, locked to the ground, shrieking in pain as a woman slams her high-heeled stiletto into its eye socket.4 4.Brief for the Humane Society of the United States as Amicus Curiae Supporting Petitioner at 2, United States v. Stevens, 559 U.S. 460 (2010) (No. 08-769).Show More Viewers hear the kitten’s skull shatter.5 5.Id.Show More Yet the woman keeps stomping. By the time the video ends, all that is left of the kitten is a “moist pile of blood-soaked hair and bone.”6 6.Id.Show More
Following that initial hearing, Congress passed a series of laws that criminalized the creation and distribution of animal crush videos. But those laws contained a crucial exception: the actual conduct depicted in animal crush videos was not subject to a federal penalty. Not until 2019 was the act of “animal crushing”—which is a term of art encompassing the most extreme forms of animal cruelty—prohibited under federal law. The United States Sentencing Commission, however, has yet to promulgate an amendment to the Federal Sentencing Guidelines7 7.U.S. Sent’g Guidelines Manual (U.S. Sent’g Comm’n 2021).Show More (“Guidelines” or “U.S.S.G.”) that accounts for this change. Today, courts are sentencing animal crushing defendants using guideline calculations that do not reflect the depravity of extreme animal abuse. That gap in the Guidelines—which this Essay terms the “animal crushing offense loophole”—presents a serious threat to the administration of justice in cases involving some of the most depraved and sadistic forms of human behavior.
This Essay is the first to identify and offer solutions to this glaring gap in the Federal Sentencing Guidelines. It calls the problem to the attention of the United States Sentencing Commission as it prepares to enter a new amendment cycle in late spring 2023. This Essay also provides guidance to judges, prosecutors, probation officers, and defense attorneys on how to approach sentencing in animal crushing cases. It proceeds in four parts. Part I briefly addresses the history of the federal anti-animal cruelty statute, 18 U.S.C. § 48. Part II explains the animal crushing offense loophole and how it leads to dramatically insufficient recommended guideline sentences for defendants convicted of animal crushing. Part III suggests three reforms that would help courts fashion a sentence that adequately accounts for the cruelty of animal crushing offenses. The Commission could create a new Animal Crushing Guideline; alternatively, it could amend the Guidelines to recognize animal victimhood. In addition, sentencing judges can utilize a set of factors to better distinguish among animal crushing defendants. This Essay concludes by assessing the likelihood of reform.
- H.R. Rep. No. 111-549, at 2 (2010), as reprinted in 2010 U.S.C.C.A.N. 1224, 1225. ↑
- Sirin Kale, ‘Sometimes They’re Boiled Alive’: Inside the Abusive Animal Crush Industry, Vice (Nov. 3, 2016, 9:50 AM), https://www.vice.com/en/article/d3gv7q/inside-abusive-animal-crush-fetish-industry [https://perma.cc/63P9-MRJX]. ↑
- H.R. Rep. No. 111-549, at 2. ↑
- Brief for the Humane Society of the United States as Amicus Curiae Supporting Petitioner at 2, United States v. Stevens, 559 U.S. 460 (2010) (No. 08-769). ↑
- Id. ↑
- Id. ↑
- U.S. Sent’g Guidelines Manual (U.S. Sent’g Comm’n 2021). ↑