Sunday, October 4, 2009

Standing Above the Law

“It’s grotesquely painful and unambiguously illegal, but fuck the sheep, the university can do whatever it wants,” said Brian Blanchard, Dane County District Attorney in response to having it called to his attention that beginning in at least 1988, the University of Wisconsin, Madison has repeatedly violated one of the state’s “Crimes Against Animals” statutes. The law bars killing animals with decompression. Apparently, the university intends to keep breaking this law and DA Blanchard could care less.

Blanchard didn’t actually say, “fuck the sheep” of course, but he might as well have. Read his letter.

In 1985, the Wisconsin State Legislature passed into law statute 951.025. This short statute is short and unambiguous:
Decompression prohibited. No person may kill an animal by means of decompression. (Bolded text in the original.)
Even DA Blanchard acknowledges that the university’s attempt to distort this plain language is as lame as a sheep crippled in one of its hideously cruel decompression experiments:
If the death of each sheep by means of decompression does not qualify as a forfeiture violation, one is hard pressed to imagine what conduct, not intentional or negligent, would fit the definition of a forfeiture violation. No intent whatsoever is required. The plain terms of the substantive statute and its penalty provision ban any practice that kills by this means.

It is irrelevant that Wisconsin’s flat prohibition appears to have arisen out of concern about use of decompression chambers as a euthanasia technique, because the plain language of the statute is unambiguous and no purpose other than a flat ban can be read into the statute. The legislature established a per se category of offense, assigned it to the forfeiture level, and decided not to shield bona fide research from its reach, regardless of the degree to which these experiments are scientifically sound and morally justified. Legislators settled on language that goes beyond the euthanasia context. Whether or not the explicit thought ever passed through the mind of any legislator, the legislature decided to use sweeping language that unambiguously prohibits the use of decompression chambers for any use, even peer reviewed scientific research, that kills an animal.
Why would the legislature have passed an unambiguous flat ban? Because rapid decompression is so terribly painful.

The fact that the university argued that it wasn’t breaking the law is illustrative of many of the deep-seated problems inherent in its use of animals (and the use of animals generally in research around the United States.)

You don’t have to be an attorney to understand the plain language of the law: “No person may kill an animal by means of decompression.” Period.

Yet, instead of admitting that it had violated this simple restriction, the university argued that the plain language doesn’t mean what it says. Likewise, it claims that the experiments in its labs are humane. (Here's their response to Blanchard.)

The university argues: “There certainly has been no … reason to believe there was any debate regarding the legitimacy or legality of this research until this particular complaint was lodged.”

University of Wisconsin, Madison animal research oversight committees do not have any such discussions. Why would they? The university feels that it is exempt from all animal cruelty laws, and acts accordingly. The university has simply ignored the state law. If this isn’t the case, then there would be a discussion of the law in an oversight committee’s minutes, but the university acknowledges that it can find no record of such discussion.

The university’s self-interested lame arguments are to be expected. DA Blanchard’s decision to ignore decades of violations and his apparent decision to turn a blind eye to all further violations reinforce the notion that working within the confines of the legal system is bound to fail on a matter so deeply entrenched in society.

No matter how carefully or well-argued, the problem of human slavery was unable to be solved through a reliance on the law. Even after the Civil War, the law was unable to stop de facto slavery, and Jim Crow was robust even into the 1970s. (Some might argue that Jim crow is still with us today.) Throughout that fight for equality, the sometimes violent confrontations with law enforcement and with the defenders of the status quo were keys to victory.

This isn’t to say that legal efforts should cease or that the few and narrow legal avenues that are available should not be utilized, but that such work in and of itself is unlikely to be successful. It is unlikely to be successful because the authorities in positions to enforce the laws are so often part and parcel of the system that is being challenged. Like judges and police officers in the South who were themselves bigots, today’s officials making decisions about enforcing anti-cruelty laws eat the animals they are being asked to protect. That’s a recipe for consistent failure.

We may see a further instance of this phenomena when the NIH learns of the university’s now clear and unambiguous violation of its Animal Welfare Assurance. Unlike the Animal Welfare Act, enforced by the USDA through nominally annual inspections of labs using species covered by the Act, the National Institutes of Health relies on a signed statement by an institution receiving funding from the NIH. This statement is a written promise to the NIH that the institution will adhere to The Guide for the Care and Use of Laboratory Animals (The Guide). (National Research Council, 1996.)

Public Health Service Policy on Humane Care and Use of Laboratory Animals (the policy regulating NIH-funded research using animals) explains that the Policy “does not affect applicable state or local laws or regulations which impose more stringent standards for the care and use of laboratory animals.”

The Guide states:
Animal facilities and programs should be operated in accord with this Guide, the Animal Welfare Regulations, or AWRs (CFR 1985); the Public Health Service Policy on Humane Care and Use of Laboratory Animals, or PHS Policy (PHS 1996); and other applicable federal (Appendixes C and D) state, and local laws, regulations, and policies. (p 2)
The University of Wisconsin, Madison has assured the Office of Laboratory Animal Welfare in its Public Health Service Assurance (A3368-01) that it would follow the The Guide, but since at least 1988, researchers at the university have been killing sheep by means of decompression. The most recent instances of these crimes against animals and noncompliances with its PHS Assurance are documented in “Oxygen pre-breathing decreases dysbaric diseases in UW sheep undergoing hyperbaric exposure.” Sobakin AS, Wilson MA, Lehner CE, Dueland RT, Gendron-Fitzpatrick AP. Undersea Hyperb Med. 2008.

I suspect that PHS Assurances will prove to be a sham. But we’ll see.

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