Wednesday, January 07, 2015

Milk of the Poisonous Tree

by Sherry F. Colb

In my Verdict column this week, I consider the very different ways in which the law handles "Fruit of the Poisonous Tree," depending on whether the poisonous tree is a Fourth Amendment violation (an unreasonable search or seizure)--in which case the doctrine provides for suppressing the resulting evidence--or whether the poisonous tree is the theft and copying (or cyber-theft) of private documents--in which case the doctrine provides First Amendment protection for the publication of the resulting material.  I explore these differences in the context of the recent cyber-attack on Sony and discuss whether it makes sense to maintain such a distinction, which turns mainly on the public/private split.

In this post, I want to consider a related question.  This question is how people who would refuse themselves to directly inflict suffering or death on a nonhuman animal (other than in an emergency situation) nonetheless purchase and consume the immediate products of such violence, including flesh, dairy, and eggs on a daily basis.  (I take up a version of this question in greater detail in chapter 6 of my book, Mind If I Order the Cheeseburger? and Other Questions People Ask Vegans, a chapter entitled "Aren't The Animals Dead Already Anyway?").

First, let me elaborate the idea of the Fruit of the Poisonous Tree.  If someone has committed a wrong in acquiring some product, whether that product is evidence of crime, personal information about Sony officials, or the lacteal secretions of a grieving mother cow whose baby was taken from her at birth, it is wrongful to utilize and enjoy the "benefits" of that product just as it was wrongful to commit the harm that resulted in the product's acquisition in the first place.  In other words, one becomes an accomplice in the initial wrongdoing by taking the fruits of that wrongdoing and utilizing them as a source of pleasure, information, etc.

In each of the Fruit of the Poisonous Tree contexts, there are two separate harms associated with benefiting from the wrongdoing.  First, one directly rewards the commission of the initial wrong by utilizing the fruits of the wrong in precisely the manner contemplated by the first wrongdoer.  For Fourth Amendment violations, the police who search homes without probable cause do so, at least in part, in the hopes of finding evidence that prosecutors can then utilize to obtain convictions.

For computer hackers who aim to uncover personal information about targeted individuals, the hackers (one can guess, although their motives may be less clear than those of the police) act in the hopes of having news outlets widely disseminate the hacked information and thereby either embarrass the targets, bring glory to the hackers, or perhaps expose some terrible secret that was kept by the targets (a goal akin to whistleblowing).  If the recipient of the ill-gotten goods goes ahead and does what the unconstitutional actors/hackers hoped he or she would do, then there is every incentive in place for the initial wrongdoers to repeat its, his, or her misconduct, since the misconduct bore the anticipated fruit. Receiving a paycheck likewise motivates an employee to return for another day of work.

The second harm is one of moral complicity.  Regardless of what the incentives for future conduct might be, partaking in wrongly-obtained goods makes an actor an accessory to the misconduct that first took place.  For this reason, you might be reluctant to wear a piece of jewelry that was taken from a corpse, even if wearing the jewelry will have no effect on (and may not even be known to) the person who committed the murder and who left the stolen jewelry for you to find.

In the context of consuming animal products, there is no question that those who produce the products--those who forcibly bring sentient living beings into existence, mutilate them, rob them of their children and other loved ones, and then brutally slaughter them--do so because people demand animal products with their dollars and cents.  If someone purchases dairy products, she thereby sends the market a signal that she wants farmers to continue to breed cows, take away their babies and divert the babies' milk to the human market, and slaughter the animals long before they live out their life spans so they can be replaced with more "productive" animals.  She literally "demands" more of the same atrocities that produced the dairy product (organic or otherwise) in the first place.

Unlike police and cyber-hackers, moreover, those who hurt and slaughter animals for a living--especially slaughterhouse workers--do so only because there is demand for the products of the violence.  Were demand to disappear, the slaughterhouse doors would close, and no one would dream of one day growing up to slaughter animals for a living.  Police, on the other hand, might still conduct unreasonable searches and seizures, even if the evidence were inadmissible (because police might hope to find potential victims or because, less flatteringly, some might wish to exercise power over the population), and cyber-hackers would probably still hack (for the same unknown reasons that virus-creators create viruses).

As to complicity, it is moral complicity that stops an increasing number of us from eating a slaughtered animal or the animal's stolen secretions, even if these so-called "foods" are "left-overs," and no one (other than us) would know that we ate them.  Moreso even than stolen data, the flesh and bodily secretions of an animal are intimately the rightful property of that animal, and it is not for us to partake in it.  Furthermore, returning to incentives, the impact of our choices--the choices of a highly social species such as humans--are far greater than we might imagine.  Because you decide that you will become vegan and begin consuming only non-animal-derived foods and other products, the people around you will notice, ask questions, and begin to reconsider their own largely unexamined choices as well.  This is the process that first got me thinking about veganism, and it has happened for many of the beloved friends in my own social circles.

By becoming vegan, you therefore not only decrease demand for deliberate and profound violence against animals as aware, emotionally complex, and capable of joy and suffering as the canine and feline companions who grace so many homes in this country.  You also set an example for others, whose fundamental compassion for their fellow earthlings may be germinating and just waiting for someone to show them how to proceed.  When it comes to violence against animals, let us not drink the milk (or eggs or meat) of the poisonous tree.  It is rotten, and the alternative is delicious, peaceful, healthful, and far better for the environment.  If you believe that it is wrong to hurt an animal unnecessarily, you have already made the judgment that veganism is for you.  Here are some resources to get you started:  http://vegankit.com/eat; http://comfortablyunaware.com/video-of-the-month/; http://humanemyth.org/.  Make this life-affirming choice one of your New Year's resolutions.  And a happy and healthy New Year to you all.



16 comments:

Joe said...

I think 1A concerns and non-governmental actors make the press using stolen material etc. different in certain ways than the 4A exclusionary rule context. So, was somewhat not convinced there.

But, the discussion here about veganism is more convincing and has influenced my own actions.

Unknown said...

Thank You to Both, Professor Colb and Joe.

James Longfellow said...

It has always seemed to me that an instrumental view of the 4A is wrong because it overlooks two key factors. First, it ignores the fact that the primary reason police collect evidence is for prosecution purposes. So there is no clear dividing line between "police misconduct" and "prosecutorial misconduct". Second, this reality is exacerbated by the fact that both police and prosecutors are part of the Executive branch of government.

Rather than talking about prophylactics to deter police misconduct we should be talking about Executive misconduct as one united whole. When we consider that in light of the Madisonian separation of power the reason that 4A violation should be repressed it not because they deter anything but because they are Constitutional abuses of power ab inito.

el roam said...

Thanks for a very interesting post . I would only note , that the chain of demand or recation or action presented , should or can be observed bit differently :

One might presume, that lack of meat, wouldn't necessarily cause a meat eater, to go out, hunt animal, and slaughter it. So, once such observation is agreed, then, you might accept the next chain or reaction or action:

Not the demand generates the slaughter , but rather the very existence of it ( a person is born to it ) since, a person wouldn't slay animal by himself, not necessarily , at all not !! In such, much less liability, or burden should be put on meat eaters in this regard . Typically, one meat eater, would convince himself , or excuse himself , and keep on eating, by the idea that : his personal , private avoidance wouldn't change much.

Just to add two important purposes to the poisonous tree or fruits doctrine :

First: in court, purity, decency, has a major importance. So , in order to keep a decent process , lawful one, and trustworthy one, the court would many times (not always) exclude or turn or make such evidences, inadmissible.courts generally , won't assist an illegal activity to exist and penetrate court room .

Second: once you deter police officer from fishing and digging unlawful evidence, they would become more creative, instead of using more : brutal, " effective " , and immediate methods, for extraction of evidences.

Thanks

egarber said...

Viewed through the prism of protecting citizens from government power, I think the different treatments (1st and 4th) can be explained logically.

Seen this way, excluding evidence and prohibiting laws that quell speech are both limits on government power against private interests. It is consistent in this manner, although the complicity assessment sprays in opposite directions.

If we try to enforce consistency through the complicity dimension instead, the net result would be augmented government power over the individual: further curbs on speech. We therefore have to ask if that's a good thing -- i.e., is aligning our values on complicity worth the cost of speech limits?

I guess this is just another way of making the public / private distinction called out in your verdict column.

Joseph Simmons said...

Two items out of South America (would be particularly interested in the Professor's thoughts on the latter):

https://www.youtube.com/watch?v=k1bG2EPGmI0

http://www.telegraph.co.uk/news/worldnews/southamerica/argentina/11307205/Sandra-the-orangutan-granted-limited-human-rights.html

Sam Rickless said...

Hi Sherry,

You talk about the canine and feline animals that grace our homes. Presumably, these animals are owned by their human companions. For example, if a dog were to run away, wouldn't you think it permissible for its human companion to retrieve it? Many dogs and cats are prevented from escaping the houses in which they live. Isn't this because it is presumed that their human companions own them? Don't you make this presumption too? After all, if someone else were to take your cat (perhaps to release it into the wild), wouldn't you think it permissible to engage law enforcement to help you take your cat back from the cat thief?

Suppose, then, that we own our domestic animals. Doesn't it follow that we own their bodies? (Animals are surely partly, perhaps wholly, constituted by their bodies.) But in your post you say that the flesh and bodily secretions of animals are their rightful property. But the flesh of an animal cannot be both its property and yours too. So we have a problem. Either we don't own our domestic animals or they do not own their flesh. (As for their secretions, I don't see how animals could be said to own them, any more than you can be said to own yours, unless you lay claim to them. I perspire, but I do not own the droplets of perspiration that disappear into the air when I go for a run.)

I should also point out that there are theories of property according to which it is impossible for X to own anything unless X participates in a particular sort of practice. Perhaps you are a Lockean, rather than a Humean, with respect to property. But even Lockeans (leaving aside Locke's views on animals) don't think that those who are unable to understand the norms governing property can be owners of anything.

el roam said...

Sam rickless ,


With all due respect , you raise in your comment , irrelevant analogies with property laws .

But first , as a side comment or remark : you should know that dogs by nature , are social , very very social , and in wild , they are used to live in packs .As domesticated animals , they transfer unconsciously there perception of being pak member naturaly ( in the wild ) to : theire human owner and his family . so , not too many chances , for a normal dog , with normal handler , to have any desire to escape from him . He needs him desperately .

As you know , in every state almost in the world , one can't abuse dogs ( mentally , and physically , criminal offence ) . if you can as a human being , abuse yourself , without being criminally liable , but not your dog , it means , that you don't own your dog ( neither his sol , nor his body , all in terms of property ) .

Then what for Christ sake ?? it is simple :

You don’t realy own your dog , you are rather his guardian !! you have full responsibility to take care of him , and take also decisions for him , those he can't make by himself ( like a mentally ill person or , incompetent one ) . But , solely those , compatible with moral , and lawful purposes . not beyond it !! every deviation from such treatment , is considered by appropriate law , as a criminal offence , bearing clear sentence .

This is not a judicially perfect and coherent situation or description , but , far greater compatible with reasonable provisions of law and jurisprudence .

Thanks


Joe said...

Regarding animals as property, we don't have the right to do anything we want to our property. Mere aesthetic concerns, e.g., can limit what we can do with our homes. More so when harms to third parties, e.g., pollution, is involved.

A later reply shows that animal welfare laws provide limits to what we can do to Fido as compared to a chair. In fact, enforced in breach or not, even slaveholders in the South could not do anything they wanted with slaves. Other slave societies, such as the French, had more limits.

Thus, "owning" a person didn't mean, e.g., you "owned" the breast milk of a lactating mother in such a way to deny her child to drink it yourself. This unsavory example does touch upon animal husbandry practices Prof. Colb has discussed in some detail.

We can also imagine as a matter of natural law or justice that this is a "right" of the animals in question. Thus, be it a custodian (if a human child runs away, a parent also has a right to retrieve him or her) or owner, rights over the animal is not absolute.

I don't know much Lockean etc. property detail but I would posit that Prof. Colb's views would affect our "right" to hold animals as a sort of "property." She and others have a view of animal personhood for which they are not just mere objects to own.

Slavery however alone shows a possibility of mixed personhood and property where the rights of neither are complete. Indentured servants had a somewhat similar existence, if on a short term basis with less racist aspects.

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Sam Rickless said...

If one is merely the "guardian" of one's dog and the dog "chooses" to run away and join a pack (or another human family), then one is not permitted to get the dog back. No dog "owner" I know believes this.

Laws against abusing animals can be justified, as Joe says, without supposing that humans cannot own animals.

I'm not sure I understand everything Joe says in his latest post, but my understanding is that it is not morally permissible to own a person. So we can't learn anything about property from slavery, which is wrong.

Joe's use of quotation marks around "right" as applied to animals strongly suggests that the phrase "animals have the right that such-and-such" should not be read literally. I agree with this. But we do not make progress in ethics by speaking non-literally. We should get rid of the quotation marks. When we do this, we find ourselves having to replace rights-talk with something else. And what is that? Duties that we have towards animals (and others), not grounded in rights.

I believe that if I own a hen and the hen produces an egg, then I own the egg. If the hen were traumatized by the removal of the egg, I might have a duty to the hen not to remove it. But I do not believe that hens are traumatized when their eggs are removed. (I am ready to be corrected on this. Empirical evidence, anyone?) Matters are more complex, I think, when it comes to some mammals. There is evidence that cows are distraught when their calves are taken from them, and so on. But none of this, I think, defeats the conditional claim that we own the products of the bodies of animals we own. Perhaps it is not morally permissible to own certain animals, but I would need to see a good argument for this.

el roam said...

Sam ,

1) One must differentiate, between three areas, while speculating and philosophing on animals: in the wild (hanging free), pets (domesticated) and: raised for food.

2) The real problem , is in fact : the pets ,those domesticated . Here we deal with a very gray area of law and ethics. Since, they are autonomous and free on one hand, on the other, it seems to the observer, that they are owned by their owners. And why not the other areas ?? Simply: those who run wild and free, are lucky apparently . Those for food ?? well , as long as executed in accordance with law and regulations , then , it is legal !! The horror?? Well: it's the law of nature, predators in the wild are far greater more cruel. It's just that human being, is doing it industrially, but much more delicate and soft over vicious predators in the wild.

3) If you insist on dogs, you can't mix them with almost nothing. I have explained it to you: typical dog, normal dog, under guardianship of normal handler, doesn't seek to escape. He is more than attached to him, and depends on him, since it is a very social creature!!

4) But even so: Suppose that a dog, for any reason, had decided to run out, then: the Q is back to the issue: the owner as his guardian, should intervene, since: he (the dog) has taken wrong decision, since it seems that it is against his well being or even free will, the guardian, and as such, is taking the right decision in his "shoes" (of the dog) and locate him, and bring him back. Simple as an apple !!

5) Finally, property again: as you know, a person can be deprived from any asset he has almost (bankrupt for ex). But never ever from his body. Technically can be done. but lawfully , never !! Unless specific and limited situations, and basically, contemporary ones.

6) In such, when you do understand, that: no one can deprive no other one from his possession and control of body and soul, and yet, one can abuse his own body and soul, without being criminally liable, yet abuse not his own dog, you do understand in such , one simple thing: the legislator, attribute, more value to your dog's body and soul, over, your own body and soul. And maybe, Not generally speaking, but definitely from the eyes of an owner of a dog. why : the body of the owner , is his !! The body and soul of his dog, are not his!!

7) Almost, before finishing: remember this: one of the most important vector for the survival of all animals, is, mating and reproducing. Many animals, would die for that cause. they would fight to death . Or fight to death in order to guarantee the survival of their offsprings. In such , one can't presume , that interrupting such process ( eggs ) wouldn't cause any trauma. How perceived ?? how observed ?? what is the nature and scale of the damage . Here we have a hell of a complicated issue, and " one scroll, can't have it all….. "
Thanks

Joe said...

Laws against abusing animals can be justified, as Joe says, without supposing that humans cannot own animals. I'm not sure I understand everything Joe says in his latest post, but my understanding is that it is not morally permissible to own a person. So we can't learn anything about property from slavery, which is wrong.

I also argued that "owning" doesn't necessarily mean complete control. In fact, even in regard to slavery, it did not. This is where we can "learn something" from slavery, even if it is wrong and morally impermissible. An argument was made as to the rights of ownership. Legal slavery shows the limits of ownership. This is a prime example of "even granting 'x,' your argument is too broad" used in legal reasoning regularly.

believe that if I own a hen and the hen produces an egg, then I own the egg. If the hen were traumatized by the removal of the egg, I might have a duty to the hen not to remove it. But I do not believe that hens are traumatized when their eggs are removed. (I am ready to be corrected on this. Empirical evidence, anyone

Prof. Colb et. al. is arguing for the proper path so stating current property rules regarding "ownership" doesn't get to the bottom line. We don't have a complete right to do whatever we want with stuff we "own." This is seen in respect to homes -- there are a range of limits there of what you are allowed to do with your property. So, the second part is key. Prof. Colb in her recent book explains the trauma of egg production. Also, "trauma" might be too high of a test. If birds have a right to their children, some sort of mental trauma might not be necessary to violate it.

Joe's use of quotation marks around "right" as applied to animals strongly suggests that the phrase "animals have the right that such-and-such" should not be read literally. I agree with this.

The term "right" has a variety of meanings -- statutory, moral, natural or whatever. So, like for "property," I used quotes to cite the word that is being used. I do think animals "literally" have rights.

For sake of simplicity, let me quote Wikipedia -- "Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed according to some legal system." So, the law says I have to pay a fine if I assault someone. That person has a legal civil right to be free from assault. There are laws on the books that protect animals and those who defend their RIGHTS from being harmed in certain ways. Other laws do this for humans. People argue that humans have natural rights to such and such, using various philosophical arguments. Animals can also be covered by similar arguments.

But we do not make progress in ethics by speaking non-literally.

Eh. Doubtful this is literally true.

We should get rid of the quotation marks. When we do this, we find ourselves having to replace rights-talk with something else. And what is that? Duties that we have towards animals (and others), not grounded in rights.

I'm unsure what is special about these "duties" which are not also applicable to human to human contact. Anyway, I personally think my "duty" to not kick a cat arises at least partially from certain "rights" cats have from being kicked. How humans are different here is unclear. As a matter of current reality, the laws on the books -- including constitutional provisions -- are weaker. But, only a small number are vegans too. The ultimate concern here should be human and other animals' overall well being. Word use is of limited value here. But, your assumption "ownership" means more than it really does suggests it does matter some.

Sam Rickless said...

Joe, if you can't exercise a right and have never had the capacity to exercise a right and will never develop the capacity to exercise a right, then you don't have the right. So I see no compelling reason to suppose that animals have rights. That doesn't prevent it from being the case that it would be wrong to do certain things to them. But the duties we have towards animals are not grounded in the rights they have against us. And surely rights (other than legal rights) are not defined by the existence of a legal system, contrary to what Wikipedia might suggest. In general, Wikipedia is not the go-to resource on matters ethical....

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