Volume 57

Do We Need to Make a Federal Case Out of It? The Preventing Animal Cruelty and Torture Act as Over-Federalization of Criminal Law

by L.S. Stegman

“Our national government is one of delegated powers alone. Under our federal system, the administration of justice rests with the States except as Congress, acting within the scope of those delegated powers, has created offenses against the United States.” The notion that we should “be mindful of th[is] tradition” seems outdated, even quaint, in twenty-first century America. While this may have been true for the century following the ratification of the Constitution, the modern federal government has become significantly involved in criminal law. Today, there are over 4,500 federal crimes and even this number, based on a 2008 Heritage Foundation report, is surely outdated. Federal criminal law has expanded to huge proportions, making everything from carjacking to possession of a handgun in a school zone a federal crime.

Many of these crimes duplicate existing state law offenses, and simply add a jurisdictional hook to bring prosecution within the reach of federal power. And indeed, many of these jurisdictional links are highly tenuous and fail to limit federal jurisdiction at all.

This has led many academics to delve deeper into the purpose and consequences of over-federalization of criminal law. Critics have asserted that over-federalization of crimes has led to a wide variety of negative consequences: the development of a federal police state, disparate impacts on similarly situated defendants, significant burdens on the federal courts, the increased power of federal prosecutors, increased harshness in sentencing, constitutional concerns about duplicative trials under the Double Jeopardy Clause, and a serious undermining of the division of authority between federal and state governments.

Nowhere are these flaws more evident than in the passage of the Preventing Animal Cruelty and Torture Act (“PACT Act”). This legislation, signed into law by President Donald J. Trump on November 25, 2019, makes extreme acts of animal cruelty federal crimes, punishable by severe fines and up to seven years in prison.

The PACT Act certainly has great emotional appeal. Violence against animals is shocking to the conscience, and something that almost everyone in the nation can unite against. The fact that this law actually passed through the 116th Congress—which has been described as a “legislative wasteland” and “at a partisan impasse on most topics important to the American people”—speaks to the PACT Act’s appeal. When signing the bill into law, President Trump questioned “[w]hy hasn’t . . . this . . . happened a long time ago?”

This contribution offers an answer to President Trump’s question: there was, and is, no need for the PACT Act because this kind of conduct is traditionally regulated by the states, not the federal government. Supporters of the PACT Act would argue that the Act fills gaps in law enforcement that allow animal abusers to escape justice. This contribution will question that argument and, more generally, discuss whether making animal abuse a federal crime is actually a step backwards for our criminal justice system.

Given the novelty of this legislation, there appears to be little, if any, legal scholarship on the PACT Act. Accordingly, Part I of this contribution will first examine how criminal law, and specifically federal criminal law, dealt with the issue of animal abuse prior to the passage of the PACT Act. Part II will discuss the PACT Act, including the specific conduct it prohibits and the punishments violators can face. Part III will discuss the main arguments advanced by the law’s supporters: (1) the PACT ACT fills jurisdictional gaps in the enforcement of animal cruelty laws and (2) it is an important symbolic victory for the animal rights community. This piece concludes that these arguments are flawed and do not provide sufficient support for making animal abuse a federal crime. Finally, Part IV will discuss how the PACT Act bears all the hallmarks of problematic “over-federalization” legislation and why it will have unjust consequences on criminal defendants and our federalist system.

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