By Associate Dean Sarah Schindler
Imagine if your beloved pet dog was having a bad day. Maybe she got scared and bit someone. Maybe she was provoked and attacked a smaller dog. And maybe you live in a state or town with a strict “dangerous dog” law. Once a dog is declared “dangerous,” certain restrictions might be put in place: you might be required to muzzle her whenever you go out, or place a sign on your home informing others that a vicious dog lives on the premises. But in some jurisdictions, especially if the bite is your dog’s second “offense,” the court could order that she be euthanized.
What would you do? You could appeal the order, but what if it is denied? What about asking your Governor to pardon the dog?
Although this might seem preposterous to some, it has happened, and more than once. 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 having killed another dog and committing other ostensibly aggressive acts. 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. In contrast, the Governor of New Jersey relied on the property status of the dog in issuing her order.
My current research examines the wisdom of pardoning a dog, and the way that such an action could lead to changes in norms surrounding the current treatment of nonhuman animals under the law. Specifically, animals are considered property in all 50 states. Thus, they are often treated more like an inanimate object than a being with agency and feelings.
As I mentioned, the New Jersey Governor, Christine Todd Whitman, relied on the status of dogs as personal property in issuing her “pardon” order. She asserted that the euthanasia order was akin to a forfeiture order (the forfeiture of property here being the dog), which she was empowered to remit. Governor Whitman stated, “While I can’t pardon the dog, I can forgive the forfeiture taking and under that scenario, [the dog] can go free.”
Whitman’s approach was fairly straightforward from a legal perspective. If dogs are property, and property can be forfeited, the Governor can decide to give that property back to its owner. However, Whitman’s approach does little to push the boundaries of animal law as a substantive field. The result of her action was that the dog was able to live, so in that way, perhaps she acted in support of a norm that recognizes the value of nonhuman animal life. However, it does not recognize that life as having value separate and apart from its role as the property of a human.
In contrast, Maine Governor Paul LePage used what he viewed as his broad executive power to issue “a full and free pardon” for the dog, whom he asserted had been “sentenced to death.” His pardon expressly did not rely upon the property status of the dog, and mentioned nothing of his power to remit a forfeiture. Rather, LePage seems to have assumed that his pardon power was broad enough to encompass the pardoning of any being, including a nonhuman one.
From an animal law perspective, LePage’s approach was bolder, even if some might question its propriety with respect to the breadth of the pardon power, and issues of criminal justice reform more broadly. But regardless of the technical legality of this approach, the pardon power also carries a powerful expressive function. Here, LePage’s unapologetic use of that power could be read to suggest that dogs are worthy of moral consideration, and should be granted mercy, or be forgiven, when they inflict certain harms on others.
To the extent that other Governors decide to use their pardon power—rather than their power to remit a forfeiture—to free nonhuman animals, they are (knowingly or not) contributing to the growth of animal law as a field. Certain courts and legislatures are beginning to treat nonhuman animals less like pure property and more similarly to persons. For example, nonhuman animals have been the beneficiaries of wills, the subject of custody agreements, considered “victims” under a statute, and treated differently than typical property in some tort cases. Pardoning dogs is another example of treating animals as something more than mere property. And the more examples like this we are able to gather, the more likely we will see a paradigm shift toward greater protection of, and perhaps rights for, nonhuman animals.
 Executive Order (noting that “N.J.S.A. 2A:167-5 provides that any person who has suffered a forfeiture may make application for the remission of such forfeiture, ‘which application the governor may grant by order signed by her’”).
 Jerry Gray, Dog’s Death Sentence is Reduced to Exile, N.Y. Times, Jan. 29, 1994.
 I discuss these concerns and others in the law review article I’m writing on this topic, which is called Pardoning Dogs.