The Volokh Conspiracy

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Shoot a Cat, Lose Your Dog (and the Right to Own Other Dogs, Forever): Not Cruel and Unusual Punishment

Special bonus: It used to matter, under Washington law, that cats and dogs were both carnivorous mammals.


From State v. Doll, decided Tuesday by the Washington Court of Appeals (Chief Judge Rebecca Glasgow, joinedby Judge Bradley Maxa and Bernard Veljacic),

John Fredrick Doll fired a rifle across a street, gravely injuring a neighbor's pet cat. Neighbors found the injured cat the next morning and it had to be euthanized. After a bench trial, Doll was convicted of first degree animal cruelty and discharge of a firearm in a public place. ["A person is guilty of animal cruelty in the first degree when, except as authorized in law, he or she intentionally (a) inflicts substantial pain on, (b) causes physical injury to, or (c) kills an animal by a means causing undue suffering or while manifesting an extreme indifference to life …."] …

Doll was sentenced to 30 days of confinement. In addition, former RCW 16.52.200(4)(b) (2016) permanently barred anyone convicted of first degree animal cruelty "from owning, caring for, or residing with any similar animals" to the one harmed in the offense. "Similar animal" was defined as "[f]or a mammal, another animal that is in the same taxonomic order." This prohibition was included in Doll's judgment and sentence. {The legislature has since amended the statute to provide that a conviction for first degree animal cruelty results in a lifetime ban on "owning, caring for, possessing, or residing with any animals," not just similar animals.}

At the time of his sentencing, Doll owned a dog. Cats and dogs are the same taxonomic order, Carnivora….

The court concluded, among other things, that this wasn't cruel and unusual punishment, which sounds right to me:

First degree animal cruelty is a class C felony. It is not a "most serious offense" or a "violent offense." But the nature of the crime requires the intentional infliction of substantial pain, injury, or death upon an animal through a means that causes undue suffering or manifests an extreme indifference to life…. [T]he nature of first degree animal cruelty, especially in light of the facts of the present case, where Doll shot a cat in the dark and did not check whether it had survived, supports concluding that a lifetime prohibition on ownership of similar animals is proportionate to the crime of first degree animal cruelty….

Doll argues that no other state has a mandatory lifetime ban on animal ownership as a punishment for an animal cruelty conviction….

Several states have some form of mandatory ban on allowing individuals convicted of animal cruelty to possess animals and many more have permissive bans allowing for trial court discretion. For example, a defendant convicted of attempting to kill a cat or dog in Maine may be prohibited "from owning, possessing or having on the defendant's premises an animal for a period of time that the court determines to be reasonable, up to and including permanent relinquishment." Virginia allows lifetime prohibitions on "possession or ownership of companion animals" at the discretion of the trial court. In Delaware, a person convicted of felony animal cruelty "shall be prohibited from owning or possessing any animal for 15 years after said conviction," except for the licensed sale of animals or animal products. And Illinois allows courts to impose bans for all animals on both the defendant "and persons dwelling in the same household as the convicted person who conspired, aided, or abetted in the unlawful act that was the basis of the conviction, or who knew or should have known of the unlawful act … for a period of time that the court deems reasonable." …

We have found no other state that imposes a mandatory lifetime ban on possession of animals for people convicted of first degree animal cruelty, although the nationwide trend has been to reduce trial court discretion and require longer prohibitions on animal ownership as a consequence of such convictions. We acknowledge the countervailing trend toward easing reentry and allowing defendants more opportunities for rehabilitation, which cuts against endorsing any lifetime punishment, including a permanent prohibition on animal ownership. No lifelong punishment allows the full opportunity for rehabilitation. But Washington's statute is relatively close to the national norms. We conclude that this factor supports an assessment that the permanent similar animal ownership prohibition is proportional to the crime of first degree animal cruelty….

[Finally, we compare] the punishment for the defendant's crime against Washington's punishments for other offenses. Doll contends that the prohibition on owning similar animals bars him "from permanently possessing a family member," comparing the prohibition to the loss of custody of a child. We disagree.

Doll points to no law that guarantees a fundamental right to possess animals. "Pets, as a matter of law, are considered personal property" without any constitutional protections for ownership…. Owning an animal is a privilege, not a right. Washington revokes driver's licenses for vehicle-related offenses that do not necessarily involve any harm to persons or property, for example. Revocation can occur even though the ability to operate a motor vehicle is crucial to the necessities of life and participation in society.

We also emphasize that the legislature's punishment for animal cruelty is not without nuance. A person commits second degree animal cruelty if they "knowingly, recklessly, or with criminal negligence inflict[ ] unnecessary suffering or pain upon an animal," abandon an animal, or fail "to provide the animal with necessary shelter, rest, sanitation, space, or medical attention and the animal suffers unnecessary or unjustifiable physical pain as a result of the failure." At the time of Doll's offense, a single conviction for second degree animal cruelty resulted in a two-year prohibition on possession of similar animals that became permanent after the second conviction. But the right of possession could be restored in such cases upon the defendant's petition to a court. The legislature took care to fine-tune the punishment for animal cruelty and allows leniency for lesser versions of Doll's offense if the defendant presents evidence of rehabilitation. Only defendants convicted of the most severe form of animal cruelty are more permanently prohibited from animal ownership. …

Doll's actions were intentional, and he plainly caused unnecessary suffering when he shot the cat through the spine without following up to confirm whether it was experiencing ongoing suffering…. [I]t was not disproportionate to prohibit Doll from possession of similar animals, especially given the legislature's limitation of the lifetime ban only to the worst animal cruelty offenses.