Years ago there was a Minnesota judge, who when faced with the task of sentencing a defendant charged with cruelty to puppies, went off on a diatribe about how the law allows abortion and yet this guy was in court for killing puppies. Needless to say, it was the wrong thing to say and a firestorm of criticism ensued. There are not many times in a judicial career when animal cruelty cases occur, but if you have one there are resources to guide your thinking. Mirko Bagaric (Swinburne Law School) has posted A Rational Approach to Sentencing Offenders for Animal Cruelty: A Normative and Scientific Analysis Underpinning Proportionate Penalties for Animal Cruelty Offenders (South Carolina Law Review, Vol. 71, No. 4, 2019) on SSRN. Here is the abstract:

Over the past few decades, animal welfare groups and others have exposed the immense cruelty that humans inflict on animals. Despite this, the United States has been slow to criminalize comprehensively and penalize appropriately human cruelty towards animals. This is attributable to the lack of consistent, coherent definitions of animal cruelty, and established, considered jurisprudence regarding the objectives and principles that should inform the sentencing of animal cruelty offenders. As a consequence, there is a lack of uniformity and coherence regarding the sentencing of animal cruelty offenders.

This Article addresses this under-researched area of law and proposes an overarching definition of animal cruelty and a rational sentence framework for the sentencing of offenders who commit acts of animal cruelty. We recommend the development of a classification of animal cruelty offenses that differentiates between animals on the basis of their sentience, and encapsulates the varied nature of such offending. Further, we suggest that, in sentencing animal cruelty offenders, courts should pursue the objectives of community protection and rehabilitation to some degree, but most importantly they should attempt to impose penalties that reflect the principle of proportionality, which provides that the harshness of the sanction should match the seriousness of the offense.

We also argue that both classification and sentencing of animal cruelty offenses should be informed by: (i) scientific evidence of animals’ physiology and psychology (which helps explain the nature of animal cruelty); (ii) social norms regarding human interaction with animals; and (iii) moral theory (which establishes why it is ethically imperative to protect certain animals from human cruelty). The reform proposals advanced in this Article will make this area of the law more consistent and coherent, and often result in the imposition of harsher sentences on animal cruelty offenders