Animal Law Podcast 107: Prosecuting Cruelty

[00:00:06] Mariann Sullivan: Really interested to have you here because what you do is a lot different than what a lot of the people I interview do, and you're doing criminal work, and you have a very special position. Correct me if I'm wrong, but I feel like you've been doing this kind of work for a long time, but your position just changed in a really important way.

Can you go into that a little bit?

[00:00:23] Jake Kamins: That's right, that gives me a good opportunity to also say at the outset that obviously nothing that I say today should be constituted as legal advice, and the opinions and views expressed by me are solely mine and don't necessarily reflect the opinions of the Department of Justice, the Attorney General, or the Criminal Justice Division, which is where I currently work.

[00:00:44] Mariann Sullivan: And that's in Oregon.

[00:00:45] Jake Kamins: In Oregon, that's right. Let me give you a little bit of background and sort of work into it. In 2013, I was working at the Multnomah County District Attorney's Office, which is here in Portland. It covers Portland and some of the surrounding areas. At the same time, the Animal Legal Defense Fund and the Oregon District Attorney's Association, along with the Benton County District Attorney's Office in Corvallis, had the idea to create a statewide animal cruelty prosecutor position.

Resource prosecutors have been around for many years in many different areas: domestic violence, driving under the influence of intoxicants, now we're starting to see elder abuse prosecutors and bias crime prosecutors. But nobody had ever done an animal cruelty prosecutor as a statewide proposition.

[00:01:35] Mariann Sullivan: And so a resource prosecutor has sort of a special expertise in a particular type of criminal work, and then roams around the state helping out, and we'll get into the various ways, but is that the idea?

[00:01:48] Jake Kamins: That's exactly right. So that was not a model that had been applied to animal cruelty yet in America.

[00:01:54] Mariann Sullivan: But it existed.

[00:01:55] Jake Kamins: Yes, it existed. So the way that they set it up was Animal Legal Defense Fund had the bulk of the funding, they gave that money to the Benton County District Attorney's Office, who hired me as a contractor to perform that work.

So it was a little bit of a strange setup. There certainly are plenty of grant funded prosecutors in plenty of areas. But the fact that this resource prosecutor, who was ostensibly working throughout the state, was housed in a county district attorney's office, and as a contractor, was a little bit different than the norm.

[00:02:29] Mariann Sullivan: Well, congratulations for getting a state to accept something that was out of the norm and do some good. That's really great. And it actually served as a model for what you're doing now, right? Which has gone to a much more positive step even,

[00:02:44] Jake Kamins: That's right. So I, for 10 years, worked as a contractor at the Benton County District Attorney's Office. And then last year, a couple of things happened. In Oregon, we have a full, legislative session every other year, so it was on the full legislative session year. And we found out from ALDF that the grant funding was coming to an end.

So we saddled up and went down to Salem.

[00:03:10] Mariann Sullivan: So to speak.

[00:03:11] Jake Kamins: Yeah, right! And talked to legislators to convince them that the work that the program has done over the past 10 years really shows the need for this position, really shows the utility of this position. And you know, it was a chaotic legislative session, we had walkouts, we had delays, but we ended up getting it done, getting the bill passed that created this position in the Department of Justice.

Of course I had to apply for it and interview and prove that I was worthy to take the job, but they did hire me and I started on January 2nd of this year and it's been great.

[00:03:49] Mariann Sullivan: That is really exciting because when I first started looking into what you did, I was getting the information about your former job, which was great, but the model of having it funded by a private entity, I mean, it's just only so far you can take that model. I mean, obviously ALDF couldn't fund a prosecutor in every state in the country, which, you know, you'd like this model to grow.

So when I saw that it had actually taken that next step and become, not only helping the government, but being a governmental responsibility, I was really excited to hear about that. So congratulations. I'm glad you got the job. That would have been pretty annoying if you hadn't. So, I'm not sure whether there is any difference, in a grand sense, between what you do now and what you do then. But before we get into the actual duties, can you just talk a little bit about what you were telling these legislators? Because I think, you know, most of us have a sense why animal cruelty might need somebody really designated to understand why it is different from other kinds of criminal work.

But go through all of that and like why you told the legislators this is not something that just every line prosecutor should be doing on their own.

[00:04:59] Jake Kamins: Right. Well, there's two major components to it. One is that, as a former line prosecutor, I can say there are certain kinds of cases that prosecutors can try with one hand tied behind their back. You know, standard issue, driving under the influence of intoxicants, most assault cases, cases of trespass and burglary, these come up all the time.

Animal cruelty is underreported, I believe, and also difficult to get prosecuted and investigated, for a various number of reasons. And what that leads to is when these cases do come up, prosecutors don't know the laws off the back of their hand like they do maybe the laws around driving under the influence, the laws around motions to suppress certain evidence, and so because of that lack of investigation and prosecution, Deputy District Attorneys can be at a real disadvantage on these cases.

These cases are heavily litigated. They often involve orders for people not to possess animals anymore which leads them to be particularly adamant about not getting convictions.

[00:06:09] Mariann Sullivan: That's so interesting. It's that order that compels people maybe to go to trial instead of taking a plea or something. It's not so much going to prison, well, maybe they mostly don't go to prison, but not so much the other types of criminal punishment, but not being able to own animals.

[00:06:24] Jake Kamins: Yeah, yeah, that's a big one. The other side of it is the issue of investigations themselves. So, unlike with crimes against persons, or other kinds of property crimes, crimes against animals are largely investigated by non sworn officers. You know, you're thinking about your animal shelter employees, sometimes you have what would previously have been referred to as like a dog catcher investigating these cases.

Now, just because we're doing cases where animals are the victims, we don't get any kind of break on the burden of proof. And we don't get any kind of break when it comes to evidentiary production. So if we don't have proof beyond a reasonable doubt to convict somebody of animal cruelty, we're going to get not guilty verdicts.

So, just because they're animal victims doesn't mean that anybody is going to give us a break on that. Now, animal services folks are some of the hardest working, most dependable people that I have found in the criminal justice system. But, they're mostly trained on animal issues, right? They can catch the dog, they can deal with the noise abatement issues, they can deal with the licensing issues, vaccinations, stuff like that.

They're Johnny on the spot if you are having trouble feeding or caring for your animal. But they're not very often trained in investigation basics, evidence collection, interviewing witnesses, testifying in court. And it really creates a pretty big gap in their ability to translate their skills to the criminal justice system, which is where they find themselves.

And I'm charging people with real crimes that involve prison time, potentially, obviously collateral consequences, and potentially huge fines, and community service, things like that.

[00:08:19] Mariann Sullivan: It's a crime. It has to be prosecuted as well as any other case, I would hope.

[00:08:24] Jake Kamins: Yeah, and what I've found is the animal services officers largely lack that training. And so I spend a lot of my time developing materials for animal services officers.

[00:08:36] Mariann Sullivan: By animal services, you mean, what also might be called animal control?

[00:08:40] Jake Kamins: Yeah.

[00:08:40] Mariann Sullivan: That governmental entity that deals with animal problems..

[00:08:44] Jake Kamins: ThaT's right. And well, if you're lucky, it's a governmental entity. In a lot of circumstances, it's a non profit agency.

[00:08:50] Mariann Sullivan: Yeah, absolutely.

[00:08:51] Jake Kamins: So that's where I really focus my energy, training the prosecution side, training the investigation side.

[00:08:58] Mariann Sullivan: So do you ever take on cases yourself? I guess I have three possible ways. I mean, training people, taking on cases yourself and possibly also acting as a liaison on specific cases to advise other prosecutors. Are all of these part of the job?

[00:09:14] Jake Kamins: Yes, absolutely. And really it's what the Department of Justice's Criminal Justice Division has been doing for many, many years. They just haven't had an animal cruelty person in the past.

[00:09:29] Mariann Sullivan: Well, it certainly makes sense that you're there now. I want to get more into all of those investigatory issues a little bit more. But before we do that, let's just talk about the law a little bit. Oregon has a fairly extensive chapter of laws relating to animals, but I'm assuming that the primary law that you were involved in prosecuting is the cruelty law, which has both a misdemeanor and a felony.

Can you just tell us a little bit about Oregon's cruelty law? I know you've only practiced in Oregon, but you probably have some familiarity with other states. I don't know. But just give us an idea of what it is that Oregon's cruelty law requires you to prove.

[00:10:03] Jake Kamins: Yeah, so, Oregon's animal cruelty laws are contained in our Oregon Revised Statutes, Chapter 167. That's where most of my case work comes from, although it sometimes does bleed over into other areas. On a wide view, Oregon's animal cruelty laws are broken up into separate subsections.

The main ones are animal abuse and animal neglect. Animal abuse is, generally speaking, intentionally, knowingly, or recklessly, killing or causing serious physical injury to an animal in an unlawful fashion. Right? You don't have to actually own the animal, it can be somebody else's animal, it can be your neighbor's animal, it can be a wild animal.

And there's a lot of subcategories of animal abuse. Animal neglect, on the other hand, has to do with when somebody has custody or control of an animal, and they fail to provide that animal with what the law calls minimum care. And sometimes that means that the animal gets sick and dies, sometimes it doesn't.

But, as a general rule, I try to keep those categories pretty separate.

When we're talking about abuse, we're really talking about somebody hurting an animal with their actions. When we're talking about animal neglect, a lot of times we're talking about somebody hurting an animal through inaction.

Not doing what they're supposed to do. And then there are a couple of other categories that have to do with possessing animals unlawfully, and animal fighting offenses, things of that nature that are sort of in slightly different areas. But generally speaking, that's what I'm doing, abuse and neglect cases.

[00:11:44] Mariann Sullivan: Yeah, it is so important to keep them separate. They're so conceptually different as crimes. I don't know whether you're at all familiar with New York State's cruelty law, which is the one I'm most familiar with, but it's very archaic. I mean, which is a nice thing in the fact that we had one very early on.

But, like, it's all just crammed into one paragraph and like, the abuse and the neglect are kind of, like, in the same sentence. It's so much better... I know Oregon's is considered something of a model in really laying things out very carefully. It does still have, of course, though, and I know this is probably not your main subject area, but like any animal cruelty law in the country, it has its exemptions, right?

[00:12:25] Jake Kamins: That's right. We do have exemptions. We, like every other state, have an understanding that in our current society, there are a lot of activities that are protected, and that people engage in every day, where animals are going to get hurt, they are going to get sick, they are potentially going to die, you know.

You have things sort of one end of the spectrum, hunting, fishing, wildlife trapping. Then on the other end you have, you know, scientific experimentation. And there's various levels of controversy around these.

[00:12:56] Mariann Sullivan: Of course, it's a big subject area of conversation, but we all know that cruelty laws are not covering like, you know, factory farming, because the world would be very different if they did.

[00:13:06] Jake Kamins: Right. And in Oregon, the idea with our exemptions is so long as people engaged in those activities are not acting in a grossly negligent fashion, they're not in violation of the animal cruelty laws.

[00:13:20] Mariann Sullivan: Right. Which is similar to the more common configuration of an exemption for customary farming practices. It's kind of the same kind of mindset, but Oregon has very different language, really.

[00:13:32] Jake Kamins: Yeah, it is a little bit different, but, you know, at the same time, any prosecutor, that has one of these cases come across their desk, if that case is in one of those contexts, really has to look carefully about whether the facts would support criminal action in that regard.

[00:13:51] Mariann Sullivan: Yeah, I'm sure it becomes complex. How common are special prosecutors for animal cruelty around the country? Are you the only one or are there other states that have this as well? Statewide animal prosecutors.

[00:14:02] Jake Kamins: Yeah, as far as I'm aware, I think my original home state of Virginia got on board very quickly after Oregon did, and actually put somebody in their Attorney General's office fairly quickly after I started. I think that Georgia also has somebody. And I think maybe Minnesota.

It's still relatively rare. What I guess I should say is that sometimes in bigger district attorney's offices, they will have a person or a unit who will specialize in these cases. But generally speaking, those folks are also going to have a caseload of other kinds of cases. For example, in The Multnomah County District Attorney's Office there was one woman who was tasked with these cases for a long time, but she also had, you know, gang murder cases on her docket. So, it wasn't like she was focusing her full time on animal cruelty.

[00:14:56] Mariann Sullivan: Yeah, I know that in New York, the Queens County in New York City has a specific person. I don't know whether their caseload also includes other cases because Queens is a huge county. So you probably could, like, make an entire job out of animal abuse, sadly. But it's not this statewide idea of having this roaming person, who can kind of help out everywhere. And it sounds like, you know, you've started something that is catching on, and this might be a big project for people who want to pass progressive laws in their states. It sounds like it's a great idea and an idea whose time has come, especially, you know, getting it out of the sense of being too mission driven when it's funded by an animal protection organization.

People might think that's, of course it's not, but might think it's like, you know, prejudicing the cases or something. Now it's, exactly where it should be, I would say, in Oregon. All right, getting back to what you were saying about cruelty versus neglect, and we both understand these are very different. Which are you mostly seeing?

[00:15:53] Jake Kamins: I mostly see neglect cases.

[00:15:55] Mariann Sullivan: That's what I would guess everywhere. Yeah,

[00:15:57] Jake Kamins: Yeah, I, I think when people do harm animals intentionally, knowingly, recklessly in that way, I think that they tend to keep that in their own, private confines. The thing about animal neglect is that when you have horses or cows out where people can see them when they're driving by, it's very easy for people to report that kind of neglect.

But, you know, neglect can also happen in a home, in a way that is undetectable to the outside world. So that's part of the reason that I really do believe that these cases are significantly underreported.

[00:16:34] Mariann Sullivan: Yeah, no, one of the questions that I really wanted to ask you, and I'll get to it now, is like, we all know that murder cases are really hard to try, largely because the victim can't testify, but every single case that you work on, the victim can't testify. What are the evidentiary issues that arise, and what are other things that make these cases particularly hard to find, to get arrests on, and then to prosecute?

In addition to the fact that, you know, the victim can't call the cops, can't do anything.

[00:17:05] Jake Kamins: Right. Cannot testify, and can't tell their side of the story, really. So that leads to relying on people like myself and all of the partners that I work with in law enforcement and animal services to tell that story. I think the one of the biggest things is what I mentioned before about animal services not being as well trained in evidence collection.

So maybe they're not asking the right questions. Maybe they're not picking up the evidence in a way that's going to be admissible in court. Maybe they're mishandling that evidence you know and we work really hard to make sure that they're not. The other thing that I would say is that so, say you've got a murder case, right?

Where is that body going to go? It's going to go to the county morgue, where a coroner, who's a state employee, is going to do forensic testing, you know, an autopsy, they're going to figure out what the cause of death is, they are a sworn public official, who's then going to come on the stand and going to testify about, well this is the cause of death, this is what we found, X, Y, Z, we sent this to the police crime lab, where another trained, state employee did the testing there.

There's nothing analogous to that for animals. If I have one or a dozen or fifty dead animal carcasses, there's no state agency for me to send them to for testing. So a lot of times what happens in these cases is whoever is the local, closest in mileage, veterinarian gets roped into these cases.

And they have to continue, obviously, their private practice. And, sometimes they are extremely busy. I've never met a vet who isn't. And, tend to work on these cases, you know, very well and very diligently, but also do things like if they need to send samples to a lab, they don't think twice about dropping it in, you know, the IDEX box outside of their clinic and just having somebody pick it up.

And what it turns out is that those samples then go across the country, right? I've had lab tests run in Maine, in California, in Michigan, and then that presents a real evidentiary problem for the prosecutor, because at the end of the day, if I want to introduce those lab results, which show that the animal was being neglected, which show that the animal was being abused, I have to bring that person who actually did that lab work in from across the country.

I can't just introduce those results.

[00:19:45] Mariann Sullivan: That's crazy.

[00:19:47] Jake Kamins: Because there's no way for the defense attorney to cross examine, you know, the piece of paper. So that's a big thing, is trying to make sure to keep everything in the state, just keep my evidence in the state. One thing that's happened over the past couple of years is that the Oregon Humane Society, which has an investigations unit housed inside it, also opened up a forensic lab for animal cruelty cases.

And this runs into the same concerns that we were talking about about my position being privately funded. Like, the Oregon Humane Society is a non profit organization. They are not a branch of the state. They do have sworn police officers that work for them who are under the auspices of the chief of the Oregon State Police.

But they themselves, the organization, is not part of the government, I guess I should say.

[00:20:44] Mariann Sullivan: So does that end up with the evidence not being able to be admitted or is it just a question that goes to the jury? That like, you know, this is not reliable evidence or how does that cause the problem?

[00:20:56] Jake Kamins: Yeah, well, so in the worst case scenario, evidence gets sent out of state, to a lab where they batch evidence together with other testing samples and they just return something and, you know...

[00:21:07] Mariann Sullivan: Yeah, but no chain of custody.

[00:21:09] Jake Kamins: No chain of custody, the lab tech doesn't even sign the report, so you don't even know who you're supposed to call.

So yeah, evidence out the window, right? When you do have an organization like Oregon Humane stepping up to create this resource, there probably will be some arguments, in terms of reliability of evidence and, you know, potential bias of witnesses.

But you can get it in.

[00:21:35] Mariann Sullivan: I mean, those are problems when the animal's dead, or maybe not just dead, but when science has been taken. But the other problem in these cases that seems like the huge problem is what happens to the animal? And I understand Oregon has a way to have some changes of custody pending resolution of criminal cases, but I don't know whether that always works, and there's just the immediate, like, I'm just thinking, all right, an animal control officer goes in, realizes, uh oh, this is bad, this is potentially a crime.

I need to get these animals out of here or they're going to end up dead. So what happens then? Where does the animal go? Like, and that animal is now evidence.

[00:22:16] Jake Kamins: Yeah, right, exactly. There's a great article called Time to Feed the Evidence. My, my cases are the only cases in the criminal justice system where you have a sentient being who is going to be out of the custody of its owner, and needing care going forward.

You know, you don't have to feed a car, or a gun, or even a house, you don't have to do anything for those pieces of evidence. But if you have an animal, and it's even more serious than just, you know, you have to feed it. Under our laws, a person or an entity with custody or control of an animal has to provide it with legally sufficient minimum care at a baseline.

[00:23:00] Mariann Sullivan: One would hope.

[00:23:02] Jake Kamins: Right, yeah. But certainly, you know, the nightmare scenario is you get an animal out of a person's custody, they're at, you know, a certain level of care and in a certain condition, and then it goes into, you know, county custody, or, as is more often the case, a non profit's custody, and somehow deteriorates from there.

Right? That makes criminal prosecution pretty much impossible. Now, I haven't had that experience, in most of my cases. I think there's only, like, one or two situations, where I've seen animals get worse, after having been removed.

[00:23:36] Mariann Sullivan: But even if they get better, isn't that a problem? I mean, the animal is evidence. So you have to have some kind of evidence of the exact condition of the animal at the moment they were seized. Cause that's what's relevant.

Because even if the animal, like, you know, is treated wonderfully and gets better, like, all of a sudden they're not very good evidence anymore.

[00:23:53] Jake Kamins: Well, I think that the improvement is itself a good piece of evidentiary material. And what I do when I'm doing trainings with not just animal services officers, but the people who run these animal rescues, is talk to them about the vital importance of documenting each and everything that happens with these animals along the way.

And I've had cases where we've shown before and after pictures of these animals and it's just night and day. You can't even believe that it's the same animal. But that relies on those agencies being competent to do these things and also being trained on them. Because, again, with animal rescue operations, there's no reason that they would intrinsically have any kind of training on evidence, right?

Somebody needs to reach out to them and provide that training.

[00:24:51] Mariann Sullivan: That's, I mean, the first thing people are going to think of is, I have to feed this poor dog, not, I have to write down and take pictures of the exact condition of this poor dog. I mean, that's not what would occur to people, I don't think. But it's got to be incredibly important to you.

So I started this scenario with animal control goes in and says, oh dear, this is bad. Is it animal control that generally is the one that's going to make that call? That's going to say a crime is being committed here and put that, the criminal process in motion? Is it ever the police or does anybody else make that decision?

[00:25:24] Jake Kamins: Yeah, sometimes it's, there are police agencies that are called in. I've worked with sheriff's offices, city police, state police as well. You know, it's really a collaboration. Because what ends up happening is police will know the law, or you at least will hope that they know the law. Animal services will know the animal codes, things that have to do specifically with animals.

And then there's a third part, which is veterinary input. And I really, really encourage law enforcement and animal services, if they're faced with a case, even what seems like to them to be obvious abuse or neglect, to consult with a veterinary expert. I had a case, several years ago, I was assigned to a case where a police officer had been called out to a person who was living in a tent with a dog, and the dog had a very gross looking growth on it. And, you know, it had gotten raw, and, understandably, this police officer was like, whoa, this looks awful, seized the dog, brought it to a veterinarian, the veterinarian wrote up a report, and the officer had given this person a citation. I reviewed the Officer's report and had the same reaction that he did.

Whoa, this this is gross. This is awful. Glad he did this. Then I followed up with the vet and my question for the vet is if somebody had brought this animal into you in this condition, you know a client of yours, would there be a thought in your mind that this person had committed a crime as to their treatment of this animal?

And the vet said no No, not really. This just seems like a person who needed some education on what to give their animal, how to treat this condition. I don't really think so. And so I said, okay, hold on, let's back up. Do you think that this animal, given all this information, I give them all the context, do you think that this person committed a crime as to this animal?

And they said no. And I said, okay, well, I guess we have our answer. So give that dog back and we're done here. And you know that piece of it is really important not only for that, but also for sometimes veterinarians can see things that officers don't see. You know one tool that veterinarians use that most officers are not trained on is body condition scoring. So there are ways to judge malnutrition of an animal, particularly livestock animals like horses and cows, but also dogs and cats, just by looking at them.

Right, you do a visual assessment and you know, you can walk up to the animal and you can feel and sometimes you can feel their ribs, you can see certain bones that protrude, and you can actually judge that animal on a scale of 1, which is extremely emaciated, to 9, which is extremely obese, and you generally want animals to be in the 5 6 range.

So veterinarians can use that tool, among others, you know, they can do fecal tests and blood tests and things like that to see more about the whole health picture of an animal than just a police officer and an animal services officer rolling up on the scene and seeing animals.

[00:28:44] Mariann Sullivan: But that's an instance in which it's so important for there to be training because these, you know, these are serious neglect that may not be totally obvious to just a police officer. How would they know if they're not trained in that? But the other thing that it brings up, especially this story about the guy living in the tent with his dog, like with neglect particularly, I mean, veterinary care is very expensive.

Even though it's very necessary, obviously some people they're not able to get it. Even though in some ways it is neglect, they can't really be blamed for it. And then even with other things, there's such a range of behavior. I mean, I would assume most abuse cases, it's pretty cut and dried.

Like, all right. let's prosecute this. But neglect, how do you deal with the people who are really neglecting their animals, people who are not feeding their animals, who have their dog tied out in the back and, you know, in the worst of weather. And, and these cases of neglect, which I imagine come up so often.

Which, you know, it's one of those issues where the criminal justice system may not be the best way to deal with it, but it's all we've got, where people have gotten in over their head, people like have problems, they're not well educated about what animals, you know, it's a million reasons why people don't take as good care of their animals as they should. And they should, but, is it a crime?

Like, where do you decide whether that's a crime or whether there's another way to deal with that situation?

[00:30:10] Jake Kamins: Yeah, I think that's a great question. I think sometimes it doesn't even get to me because one of the things that I've noticed that animal control, and animal services officers are so great at is evaluating cases on that very, You know, they go in, they see somebody, who maybe they even know from past years to have been a good animal owner, struggling.

And they can ask those questions. Is there something going on financially? Is there something going on medically? What's happening that's brought you to this point? And the animal control officers that I know are, by and large very sympathetic and empathetic people that understand how important people's animals are to them, and not just on the level of like, you know, the chickens provide the eggs that they eat, but like, companionship wise, I think that there's a real understanding that, you know, people feel very strongly about their animals and, it's very hard for them to accept in a lot of situations that their circumstances have changed and they're no longer able to care...

[00:31:15] Mariann Sullivan: And also we're looking at this in a world where there is probably not a place for that animal to go. I mean, it's not like there's wonderful homes out there waiting to take better care of these animals. So even from the point of view of the animal, prosecution may not be the right step.

[00:31:32] Jake Kamins: Yeah, I would push back a little bit in Oregon on that front. We have animal rescue organizations, that do just wonderful things.

And we have just a huge hearted community for animals in distress. The other thing that I would say is that if a case does come to me, of neglect, one of the first things that I have to do is look at it through the legal standard, which is that a person cannot, you know, there's an exception built into the neglect statute for circumstances outside of the reasonable control of the owner. And emergency circumstances. So I think those are pretty specific legal standards.

I think of an emergency as a true emergency. You know, the floodwaters are approaching, the fire is getting closer. You have to make a decision to save your life or your animal's life. And that's a horrible thing to have to do, but you do have to do it. And then circumstances outside of the reasonable control Well, we can kind of look holistically at Oregon's animal welfare ability when we're talking about that.

So we do have animal rescues, we do have opportunities for people to turn over their animals, and certainly if you have somebody who's been visited by animal control, you know, maybe not once, maybe two times, maybe three times, they've been given all the facts about all the opportunities that they have to give these animals a better life, and they still, you know, refuse to do it, they refuse to do it.

That's not out of their reasonable control. You know, I had a case, almost a decade ago now, where a man and his wife were running an alpaca farm. And, the economy took a turn, and they stopped doing what they needed to, and they went from about a dozen alpaca to almost a hundred in a very short amount of time. And just conditions were terrible, it was like feedlot conditions for alpacas.

There was a huge tree in their enclosure that the bark was just stripped up as far as the alpacas could reach. So the reason I'm telling you this story is we get to trial, and he's testifying about the things that he did and didn't do to try to mitigate this situation. And what he did was that he made a few phone calls to local 4 H organizations.

That was the step that he took. He had over a hundred animals s starving to death.

[00:34:03] Mariann Sullivan: You think you could have at least made up something better than that.

[00:34:05] Jake Kamins: You would think, I mean, you know, I assume his, you know, taking the oath persuaded him to tell the truth. But it turns out that in addition to the vet school, which was a huge help, the Oregon State University Veterinary College, which was a huge help on this case, there was an alpaca rescue organization just over the border in Washington. And they were a huge help with law enforcement when this case happened. But he had not reached out, he hadn't researched that, I think he was just hoping for the economy to turn around and him to, you know, really have an opportunity to make some more money off the backs of these poor animals.

[00:34:43] Mariann Sullivan: Yeah. So that was an institutional abuse case that you were able to do something about. Are there other, I mean, there are obviously a lot of institutional abuse cases that would not fit into any of the exemptions like, well, obviously cockfighting, that's gotta be illegal. And maybe Puppy Mills, you know, they frequently do get investigated and prosecuted if they're really harsh.

Have you been involved in those kinds of prosecutions?

[00:35:06] Jake Kamins: Yeah, puppy mills certainly. I haven't had a ton of animal fighting cases, but we do have laws against that. What it relies on is people who see the abuse and the neglect making reports to the appropriate law enforcement agency. And one thing that I'll stress is that these can't be anonymous reports, right?

Whenever I get a complaint and it starts off with the reporting party wants to be anonymous, I would say 99 percent of the time, that's going to be a case that I'm going to have to throw away. Because we do have, in Oregon, and the United States, the right to confront the witnesses against us, right? So if you're saying I want to report this, but I don't want to take the stand I don't want the defendant to know my name, then how would they be able to defend themselves against this accusation?

[00:35:59] Mariann Sullivan: Even on an investigation, I mean, you would have Fourth Amendment issues, right? Of even being able to go in there and find out what's happening if it's just an anonymous report.

[00:36:08] Jake Kamins: Right, yes, absolutely.

[00:36:11] Mariann Sullivan: So you had mentioned before, but we didn't go into it, and I'd just like to revisit it. I believe you do have a process for pre trial forfeiture. Can you just tell us a little bit about what that process is like and what you have to show in order to be able to take somebody's animals away pending the long slog of a trial or whatever, if it does end up going to trial, and what happens to the animals if you don't?

[00:36:34] Jake Kamins: Right, so in Oregon we do have a statutory pre trial forfeiture process related to animals that have been the subject of animal cruelty. Initially, the animals have to be seized in the right manner, right? They have to be seized by a peace officer, and then the animals have to be impounded and either put in care with a county animal shelter, or an animal care agency, right?

Once that's happened, the person then has to be charged with a crime related to their care. Once the charges have been filed, the district attorney can file in that criminal action, what's called a petition for pretrial forfeiture. Now in Oregon, we have very, very strong constitutional protections against civil asset forfeiture in the absence of a full jury trial verdict, right?

You can get criminal forfeiture but you have to indict the person, indict the property, and then go to trial and prove it to a full jury. There is an exception, however, for animals, and that's this statutory provision. What the prosecutor does is they file this petition in the criminal action, and it's just like any other motion that gets filed.

It gets litigated within a couple of weeks. If the person's not available to be served because they're in warrant status or there are people who potentially have ownership issues in these animals that you don't know about, you can give notice of the hearing by publication. So you publish notice or you give notice in person to the defendant and then two weeks hence, If you're lucky, if the court's available, you have a hearing on this matter.

The hearing is before a judge. Person does not have a jury right. That was a debated issue until about a year ago. The Oregon Supreme Court weighed in and said, No, you don't get a jury. It's just a judge. The burden of proof is on the prosecution. But the burden of proof is not the beyond a reasonable doubt that we're going to face later.

It's just a probable cause determination. So the state does have to put on evidence. The defense does have an opportunity to cross examine that evidence and put on their own evidence and be heard prior to the determination. And then the judge decides did the state prove this by probable cause or not, right?

Even when they make that determination, they have to make another determination, which is what is the cost of caring for these animals, all the way back from the seizure and all the way forward to our trial date. So they come up with a number, and they put that in the order as a bond amount. And if the defendant, or somebody else, pays that bond amount, then it stays the forfeiture order until the trial date happens.

So you have the animal's care paid for all the way through to the trial date. Now, I haven't seen very many people post these bonds. As you know, day on day animal care can get pretty expensive, but if somebody wanted to ultimately vindicate their rights and have a trial and have a determination and they think they stand a good chance of getting an acquittal and getting their animals back, then that's how they would do it.

And that's how this process protects their due process rights, while at the same time making it so that the state or the county is not, essentially punished for having done their job and protected these animals.

[00:40:13] Mariann Sullivan: Well, and also it protects the county, but essentially it also protects the animal because, I mean, we all know, like, these things can go on for a long time and the animals can be in shelters or in institutional settings for that time. And that's not the best situation for them.

[00:40:31] Jake Kamins: Absolutely, we want to get animals to their forever homes, and at the same time we want to protect people's rights.

[00:40:38] Mariann Sullivan: That's a, that's a tough issue.

[00:40:39] Jake Kamins: Yeah, and it really comes up because animals have this weird dual status under the law. They are absolutely sentient beings, capable of experiencing pain, fear, and suffering, and our law says so.

But at the same time, in a lot of circumstances, they're property. And the owner of that property has rights to their property as well.

[00:41:03] Mariann Sullivan: What about once the case is over, how does punishment usually go? I mean, as we've discussed, there's just such a wide variety of factual situations and culpability. I mean, there are, there are the monsters, you know, people who just do dreadful, horrible things to animals, but I'm sure, especially since you're dealing with neglect, there are people who are irresponsible, there are people who are mentally ill, there are people who are ignorant, in a tough place, and yet you also want to protect the animals.

So, what are some of the challenges in kind of fine tuning the law to the appropriate punishment? I mean, I guess that's really up to the judge, but you have a right to have your say.

[00:41:41] Jake Kamins: Yep. So, it is, as you say, up to the judge. There are no, so called mandatory minimum animal cruelty offenses, meaning that there's nothing where a judge is forced by function of law to give x or y sentence to a particular defendant. We do have mandatory minimum crimes, murder, sexual assaults, things like that, but animal cases have not cracked that yet.

So, animal cases in Oregon, animal cruelty offenses, cap out as Class C felonies, which is the lowest level of felonies. There are also animal cruelty offenses that are classified as Class A, B, and C misdemeanors. On a misdemeanor case, they can be also put on up to five years of probation.

Very often that's what's going to happen at the outset of a case. My goal as a prosecutor, or I guess I have a lot of different goals, but in terms of sentencing, whether the person takes a plea bargain or they go to trial and they're going to be sentenced, my goal is to make sure, as best I can, That they get similar sentences to other similarly situated defendants.

There's never one to ones. Every case has its own little wrinkles and, and distinctions, but you do the best that you can to get to the same level of punishment, in a sense, on similarly situated cases as each other. That was a little bit of word salad, but what I'll say is, when I advocate for somebody to get put on probation, I really look to try to figure out if there's any way to give this person an opportunity to make the victim whole in any way that they can.

And I think that that generally entails paying the restitution for the care that their animal incurred as a result of their criminal actions. I try as best I can to have them pay back to society in a way, usually through community service of some kind, although most animal agencies and charities don't actually want people to do community service with them.

[00:43:55] Mariann Sullivan: That used to be so common and the shelters would just, like, lose their minds.

Like, what do I have to watch him the whole time?

[00:44:02] Jake Kamins: Certainly addressing any mental health issues or addiction issues which led to the behavior. You know, I've referred people to batterers intervention type programs, when their behavior seems to cross over into domestic violence. I've referred people to drug and alcohol programs. There is not as much as I would like in the way of programs to teach people how to be better animal owners.

I wish there was more formal education out there. There's one program that I've referred people to on a number of occasions called the Benchmark Animal Rehabilitative Curriculum or BARC Education for short. The reason I like their program is they're a nonprofit organization, obviously you can find a lot of for profit enterprises purporting to teach people about animal care for court diversion programs and things like that, but BARC is a non profit organization.

I audited their class and it seemed to do a fairly good job of emphasizing issues of animal sentience and care and treatment. And, you know, there's just not enough, in terms of education, out there and also mental health treatment that focuses on animal cruelty issues.

There's a few programs that focus on animal abusers, but the actual practitioners are few and far between. And of course, it's hard for people just even seeking kinds of therapy to find providers. So, we do the best that we can. And I think the, the real driving force behind that for me is even in Oregon with our great animal protection laws, and our pretty strong criminal animal cruelty laws, if a person commits the worst imaginable offense against animals and is convicted and sentenced, the extent that the law goes to in terms of preventing that person from possession of animals is 15 years. So, let's say you have a 25 year old defendant who does the worst imaginable thing to an animal.

[00:46:09] Mariann Sullivan: Right. Some real monster one.

[00:46:11] Jake Kamins: Number one, there's no animal cruelty registry, so who's to say, when this person gets animals again. Number two, the law prohibits this person from possession of certain kinds of animals for 15 years. And then after that 15 years are over, no further prohibition.

[00:46:31] Mariann Sullivan: What certain kinds? Like, who are they allowed to own? Like that sounds worrying.

[00:46:36] Jake Kamins: Yes. So the way that the statute is worded is that the person is not permitted to possess domestic animals or any animals of the same genus that they were convicted of abusing or neglecting. So let's say for example, a person neglects a horse.

For 15 years, that person cannot possess domestic animals or equines.

[00:46:59] Mariann Sullivan: But horses are domestic animals, aren't they?

[00:47:02] Jake Kamins: Not in Oregon.

[00:47:03] Mariann Sullivan: Oh, that's a little confusing.

[00:47:06] Jake Kamins: Yeah. Yeah. Yeah.

[00:47:07] Mariann Sullivan: Domestic animals is narrowly defined in Oregon?

[00:47:10] Jake Kamins: Yes, it's pet animals, basically.

[00:47:12] Mariann Sullivan: I see. Oh, so that, That is problematic. That leaves a lot of animals available to be potentially owned, and, it's only for 15 years.

[00:47:21] Jake Kamins: Right, so, and probation can ban all animals, and a lot of times, when a person is put on probation, my request is that the judgment reflect that the person own no animals whatsoever, but that can only last for five years, even in those most serious cases.

[00:47:36] Mariann Sullivan: And not in the probation, but in this order prohibiting ownership, is that automatic, or do you have to ask for that as part of sentencing?

[00:47:44] Jake Kamins: It is automatic. It's by function of law. However, there's an exception built in for people who were classified as commercial livestock operators. And they have an automatic exemption from a first time ban, if their underlying conviction was committed against livestock.

[00:48:03] Mariann Sullivan: You read animal protection statutes and you can just see the lobbyists standing outside the door, getting themselves written out of it. I won't ask you to comment on that.

[00:48:12] Jake Kamins: Well, an interesting thing is that this past year, well actually this past couple of months, I've been spending a lot of time in Salem working on, what I see are critically needed updates to our animal cruelty statutes.

[00:48:25] Mariann Sullivan: That was gonna be my next question. What changes would you like to see? Tell me, I'm so interested.

Right.

[00:48:31] Jake Kamins: Yeah, I actually just got a lot of things done that I'm really happy about. So, for many years, actually almost 30 years, the animal cruelty statutes in Oregon have included a term, maliciously, as in a person commits aggravated animal abuse when they maliciously kill an animal.

Now, you or I have, I'm sure, immediate thoughts of what a malicious killing would look like if we think about that just as a general term. But the law goes on to define maliciously in a way that I have found judges hate. You know, it's very difficult to parse. It has two different mental states encompassed within it, and it just doesn't boil down to acting with malice, which is what I would think that maliciously would mean.

So, this past legislative session, I went in, and we pushed and got the law changed to where now, aggravated animal abuse will be intentionally or knowingly, which are terms all of us lawyers can appreciate.

[00:49:39] Mariann Sullivan: What an idea to use standard terms for mens rea in animal cases.

[00:49:43] Jake Kamins: Yes, so if they kill an animal or cause serious physical injury to an animal intentionally or knowingly and unlawfully, then that's aggravated animal abuse.

[00:49:53] Mariann Sullivan: That is a great improvement. Yeah.

[00:49:55] Jake Kamins: And then for the, the possession ban, the work that we did, which I thought was really important, is we expanded it to a possession or reside with ban.

What I would see all the time in my cases is people would say, Okay, well I'm gonna be put on probation, and as a condition of my probation, obviously I have to obey all laws, and you have this law about possession of animals, but I live in a house where my wife has an animal, or my, you know, or in the most ridiculous situations, my child's horses.

You know, they need to keep possession of their horses. So we changed it to a possess or reside with ban. And to sort of mitigate that on the flip side, we created a very rigorous process by which a person can petition a court to have the ban either amended or shortened or removed. And the person has to come before the court and they have to show a whole bunch of things.

This process is not available for people who acted intentionally or knowingly. So it's not about people who tortured their animals and it's not about those people that we just talked about who intentionally or knowingly killed an animal. But if they can prove to the court that they are no longer a danger to certain animals, or to all animals, then the sentencing court can enter an order amending that prohibition, or deleting it.

[00:51:23] Mariann Sullivan: I'm really glad that that came up because that sounds like another really important part of your job too, as an informed person who can go to the legislature, that the legislature can trust more than they perhaps would just an ordinary citizen to talk about, like, what's wrong with this statute?

Why is it not written in a way that makes sense to people in the real world? Using words like maliciously when people don't know what they mean, and nobody can prove it.

[00:51:48] Jake Kamins: Yeah, here in Oregon we have what we refer to as a citizen legislature, which is great in a lot of ways. You know, it gives people an opportunity to go to Salem and be elected without having that formal legal training and background, but in a lot of ways it makes it hard for those legislators to know exactly, you know, what they're doing when they're talking about amending the criminal code. So we do have a lot of attorneys that spend a lot of time down in Salem to try to make sure and guide this process in a positive fashion.

[00:52:19] Mariann Sullivan: Well, that sounds like another great part of your job. It sounds like you have a great job. Congratulations on making it an official job with the state of Oregon. And thanks so much for sharing all of it with us today. It's really been fascinating.

[00:52:32] Jake Kamins: Thank you so much, Mariann. I really appreciate the opportunity.