His Day in Court?

• originally published in ‘Raucous Caucus’ blog, Pleasanton CA Weekly

Twenty-eight year-old “Jimmy” (not his real name), who lacks the mental capacity of an ‘average’ adult human being, has been kept in solitary confinement, inside a small concrete room with steel bars in Niagara Falls, NY, for many years. Furnishings are spare, including only a rudimentary bed and a TV. The floor is lined with newspapers, and heat is intermittent. He has committed no crime, nor been declared incompetent. Jimmy needs a good lawyer.

In fact, he needs a great lawyer; Jimmy is a chimpanzee, a fellow social primate kept isolated in the back of a business that rents out reindeer, in season (holiday, not hunting). Fortunately, he has excellent legal representation in the person of Steven Wise, who heads the Non-human Rights Project https://www.nonhumanrights.org/ . Wise recently filed habeas corpus petitions on behalf of Jimmy and three other known chimps held in New York State. Habeas corpus proceedings challenge the legality of holding a captive in confinement. Wise seeks his clients’ release from custody and their transfer to any of seven “gold standard” primate sanctuaries that currently host some 500 chimps.

In addition to his concrete cell, Jimmy lives in a kind of legal limbo ? somewhere far from the rights and duties enjoyed by humans, and much closer to the same status the law accords to his bed and television set. Owing to their histories as beasts of burden, food or other sources of utility, animals are classified in Anglo-American law as “chattel,” or mere personal property.

That condition is increasingly out-of-step with the culture, at least as regards the animals we actually see, as opposed to those who enter our world in shrink-wrap, or whose ghosts inhabit our medicines and cosmetics. Law based on court precedent, however, changes gradually and uncertainly, and usually only in response to sustained and vocal demands for reform. It’s that kind of change Wise hopes to achieve for Jimmy, and his companion plaintiffs.

Aware that the animal protection and abolitionist movements evolved together in England, and that America inherited its common law from British antecedents, Wise looked for precedents across-the-pond that might bolster his case. He needs the law to confer “Personhood” on his clients, such that they have capacity to enjoy legal rights like freedom from unjust incarceration.

Note here that Personhood is not the same as humanity, for, as we all know “corporations are people too, my friend.” Companies are persons in the eyes of the law, without being biologically classified as homo sapiens. Personhood means that they have the capacity to hold legal rights, although not necessarily Human legal rights.

The British research turned-up an important 1772 habeas corpus petition, filed on behalf of a slave held in confinement (who was also considered mere legal property, at that time). The English judge granted the petition (Somerset v. Stewart, if you’re keeping score at home), thus conferring “Personhood” and so-called immunity rights on that individual. Pre-Civil War American courts followed suit, at least in northern states. NY State’s habeas corpus right is based on the common law, rather than statute (For the lawyers: CA law is an uncertain mix of those two sources).

What, then, should courts look-to, to determine personhood in living things, sufficient to bestow similar immunity rights? The easy answer is “species,” the biological classification markers that attach to all known plants and animal inhabitants of the earth. It’s a convenient convention since it’s us, and it allows humans to have or retain rights even when they lose or lack capacities normally associated with humanity: self-awareness, culture, tool-making, understanding of consequences, mental acuity, etc. Even humans in a so-called vegetative state have rights, simply because of the happy accident of their births into our club.

But ‘species’ is also a rather arbitrary classification, made by some scientist, somewhere. What if a lost tribe of Neanderthals (species: homo neanderthalensis, to be exact) is discovered next year? Would they be persons? Or considered human? What are the real capacities that underlie biological Personhood ? and are They Really limited to we homo saps?

Wise drills down to identify some forty characteristics that comprise what he calls “Autonomy.” Chimps meet them all. They are intensely social, they have morals and culture (sometimes bleakly war-like, but who are we to judge?), they make different tools, they learn and plan, they suffer, they communicate with each other and with us via our chosen medium of sign language, they operate on a mental level we would associate with pre-adolescence. Indeed, he attached affidavits from nine leading primatologists attesting to these elements of Autonomy in our fellow great apes (who also share 98%+ of our DNA, but who’s counting?). His Memorandum of Law is particularly good reading.

As Wise writes: “The struggles over personhood of human fetuses, human slaves, women, Native Americans, corporations and other entities have never been over whether they are human, but whether, under the circumstances, justice demands that they count in law. Legal persons count, whether they are rivers, religious idols, former slaves, corporations, or human fetuses [all of which have achieved Personhood for some purposes ; legal ‘things’ don’t.” (Memo, page 54)

As expected, each of the trial courts has rejected these petitions, bound as they are by prior precedent that Personhood is species-delimited. In Jimmy’s case, Judge Joseph Sise did so with evident regret:

“Your impassioned representations to the Court are quite impressive. The Court will not entertain the application, will not recognize a chimpanzee as a human or as a person who can seek a writ of habeas corpus. I will be available as the judge for any other lawsuit to right any wrongs that are done to this chimpanzee because I understand what you’re saying. You make a very strong argument. However, I do not agree with the argument only insofar as Article 70 applies to chimpanzees.

Good luck with your venture. I’m sorry I can’t sign the order, but I hope you continue. As an animal lover, I appreciate your work.”

So Mr. Wise and Mr. Jimmy soldier on, to two possible levels of appeal in the NY courts. If they win, it will open a barrel of monkeys that will attempt to define which characteristics are critical to Personhood (my collies operate on a perpetual three-year-old level, at least, and our pack has a culture), and what legal rights are appropriate to chimps.

It has actually been a pretty good year for other primates, in addition to these cases ? the NIH has amended its approved research protocols for chimps, and a parallel move to these cases is afoot (abetted by august Harvard Law profs Tribe and Sunstein) to grant legal standing to various other animals (if not to trees here, for a lengthy, fascinating video discussion between Wise and Pepperdine law prof Rick Cupps, hosted by Science magazine.

As above, American law is messy, and evolves uncertainly by lurches — generally in arrears of the culture. The pressure is building for better treatment of our fellow travelers on the planet, whether they be our companions, recreational targets, development victims, research ‘guinea pigs,’ or our food (indeed, 95% of those beings we generally consider to be animals are raised to feed us).

Here’s hoping for a better future for Jimmy/Tommy — and for all our other relatives, near and far. DoG bless us, every one.