Pardoning Dogs

Abstract

In 1994, the Governor of New Jersey pardoned a dog. In 2017, the Governor of Maine did the same. Each of these dogs had been ordered to be euthanized after killing another dog. While the Governor of New Jersey relied on the property status of the dog in issuing her order, the Governor of Maine relied on his standard pardon power, despite the fact that the being to be pardoned was a dog rather than a human. Both of these cases generated a great deal of popular press and attention, and recently, a New York state senator petitioned his state’s Governor to pardon a dog in a similar situation.

Against the backdrop of these novel but increasingly frequent actions, this Article is the first to consider extending the pardon power to nonhuman animals, and the expressive function such an act might carry with it. The Article begins by examining the roots of the pardon power, exploring the breadth of that power based on constitutional text. It also describes the motivations and ideas that animate the pardon power, and ties them to recent cognitive studies showing that many nonhuman animals have the ability to feel emotions like grief and regret. The Article then takes a broader, more normative look at a decision to pardon a dog. It considers what impact that decision could have on the laws and norms that govern the treatment of nonhuman animals. Here, it examines the different expressive functions that are furthered by a true, “full and free” pardon as compared to a form of pardon that relies upon the property status of the nonhuman animal. This comparison animates a key debate in the animal law literature: whether nonhuman animals should be viewed as more akin to property or persons under the law. The Article argues that important values are served when a chief executive publicly states that animals are the proper subjects, and worthy, of pardons. These values — including that nonhuman animals are deserving of moral consideration and forgiveness — could eventually help shift the law toward a paradigm that treats animals more like persons and less like things.

Keywords: Pardon Power, Executive Power, Property, Animal Law, Remittitur, Gubernatorial Power, Nonhuman Animals, Criminal Law, Criminal Justice

JEL Classification: K11, K14, K32, Z18