Mandating No Kill By Law
Is it a good idea for No Kill advocates to try to get states to pass laws mandating various aspects of No Kill programs? The devil is always in the details, and I think some of these efforts might be good, and others not so much. The subject is too big and complex for a single blog post to cover all the permutations, so I’m just going to talk about some general considerations with legal mandates
A legal mandate is only as good as its enforcement mechanism. If the law just makes broad general pronouncements, such as, for example, “shelters must make every reasonable effort to rehome adoptable animals,” it will be hard to enforce. If the law provides that regulations be drafted to enforce a more granular level of control, then we have to persuade the rule-making agency to do a good job. Even if those hurdles are cleared, we may have problems of unfunded mandates.
One trend in regulation generally is to try to move away from “command and control” and toward incentives. An example of this is the cap and trade approach for industries that release carbon to the atmosphere. How can the No Kill movement encourage laws and regulations that set up incentives for good shelter performance rather than trying to create good outcomes by outside control? One example of a good incentive is laws that require shelters to report their statistics to the state. These laws do not set up any mandatory performance standards, but they encourage better performance simply by making information about performance available to the public. These laws are especially effective if the state collects the data and makes it available in an online database, allowing for easy comparisons of shelters.
Another example of a good incentive would be a state level program where a governor selects an outstanding shelter in the state to be recognized with an official proclamation, perhaps also recognizing a couple of runner-ups. The winners could be selected by a group of respected No Kill leaders advising the governor, and the criteria would be how well a shelter is doing. Perhaps consideration could be given to the conditions under which the shelter is operating by making the award be on the basis of “most improved.” If the national organizations got together behind such a program and generated a lot of incentives for the winners, and a lot of publicity, this could potentially be a very effective motivator. Awards like this can also be a way to increase community engagement, as entire communities get together to compete for an award.
Both of the examples cited above – reporting and proclamations – are the type of thing that can actually get through a legislature and be signed by the governor. One advantage of the incentive approach over the performance mandate is that it is much easier to get incentives enacted and carried out.
Mandatory rules can generate unintended consequences. No Kill advocates are pretty much uniformly opposed to mandatory spay-neuter, because it has the unintended effect of motivating people to avoid licensing their pets and maybe avoid taking their pets in for health care. What unintended consequences could mandatory performance standards for shelters have? By taking away a shelter’s flexibility to deal with its individual circumstances, can we actually make their job harder without making their performance better? What data, if any, do we have that command and control laws work to improve shelter performance? I have seen many claims for number of lives saved by the few shelter-performance laws that are in place, but no data to back up those claims.
As a practical matter, no state legislature is going to adopt a law at this point in time requiring shelters to meet really high performance standards. The danger with encoding the lower standards that legislatures are actually likely to pass is that once these lower standards have the imprimatur of law it may be hard to change them. One way to avoid this might be to ask states to approve very tough standards for shelters, but make them goals rather than mandates.
Saving homeless animals has always, in our country, been a separate function from animal control. The purpose of animal control is to protect the public from nuisance and dangerous animals. The purpose of animal sheltering is to find new homes or other humane dispositions for impounded animals. The first municipal animal shelter that was ever created (way back in 1870) was run by a private organization, and the beauty of private organizations has always been that they can spend their own money to save animals. Since animals are property under our law, it is very hard for legislators to justify laws that would require the public to spend more on treating or rehoming a homeless animal than its economic value (which, in the case of shelter animals, is usually nil). So, when we think about requiring public shelters to meet performance standards for lifesaving (going beyond animal control), the question of how that can be funded by the government arises. If we decide that legislation to compel veterinary treatment and rehoming is a good idea, how can we fund enforcement? One way is to ask citizens to pass a special funding measure (bond or tax) specifically for the purpose of improving lifesaving.
As one final consideration, I think we have to ask if we need to go down the legislative route at all, given that No Kill momentum right now is so great that shelters are changing rapidly because they want to, not because they have to. We have a limited amount of money and person-power to spend promoting No Kill. Are those resources better spent in lobbying for laws that have not yet been proven to work and could have unintended consequences, or in helping and persuading more shelters to get on the bandwagon voluntarily? There are arguments on both sides. My own opinion is that some of the approaches I’ve outlined above would be no-brainers (state reporting laws and governmental proclamations), and special funding proposals are certainly worthy of consideration, while for other approaches it may be that our efforts would be better spent in other ways.