Nonhuman Rights: Is It Time to Unlock the Cage?

Steven Wise (’76) has spent 30 years arguing that chimpanzees should have the rights of persons. People are starting to listen.

Steven Wise ('76)Inside the Manhattan courthouse of New York’s Appellate Division, First Judicial Department, five robed appeals judges peer down from the high, intricately carved bench at attorney Steven Wise, who rises on behalf of his clients. Their supporters are here too, scores of them, watching from the audience section, and wearing, in one case, a black “Vegan Power” sweatshirt.

Wise (’76) himself, salty haired and bespectacled, looks the part of a public defender, in a sober black suit. A founder and president of the Nonhuman Rights Project (NhRP), he’s representing Tommy and Kiko—chimpanzees owned by private individuals in New York. Wise has spent the last 30 years fighting for chimps—arguing in courts and in books and before law school classes that laws decreeing higher animals to be things rather than autonomous beings with certain rights are inhumane relics of earlier times.

Today, he’s appealing lower court decisions that denied Tommy and Kiko habeas corpus, the writ that springs a prisoner from illegal detention, and that if granted, would force the chimps’ owners to free them. He doesn’t get a minute into his argument before the fusillade commences.

“You’ve had the opportunity to be before every other judicial department in this state, and yet you’re before us,” presiding Justice Dianne Renwick interrupts. “Why isn’t this forum-shopping?”

Wise, in a respectful tone that starts quietly and becomes audible as he presses his case, says one lower court decision he’s appealing declared that to qualify for habeas corpus, Tommy would have to be able to fulfill duties and responsibilities, as humans do. That “irrational” rule, Wise says, “places millions of New Yorkers at risk that their personhood will not be respected, either,” from children to the infirm who can’t assume duties.

Another judge demands to know when the word “person” has “been used to indicate a nonhuman.” Wise replies that courts historically have deemed partnerships and even ships as legal persons (the latter since the 19th century; in cases where the owners were absentee, vessels were assigned responsibility for accidents, with damages set according to their value). He concedes that “there is no case law specifically with respect to chimpanzees.”

“Lions, tigers, any case law as to any other animal?” a justice presses. No. Renwick bores in: “Why isn’t this issue better dealt with by the legislature?” The judiciary “is a coequal branch,” Wise answers, adding that “the courts have taken the lead in numerous instances.” He cites Lord Mansfield, the English jurist who in 1772 granted habeas corpus to a black slave, then viewed as less human than whites, marking a landmark step in dismantling human captivity.

chimpThe justices also question whether habeas corpus is appropriate in this case, as Wise isn’t seeking absolute freedom for his clients. Now kept in cages, he says, they would be transferred to an outdoor sanctuary for chimpanzees; obviously, for their own safety, they would not “be driven to Times Square and be let out.”

As people file out after the hearing, a supporter harrumphs about the justices’ relentless interruptions. In a postmortem in the basement, however, Wise assures his small crowd of backers that skeptical probing is not necessarily a barometer of their thinking. “Some cases I thought I lost, I won. Some I thought I won, I lost.…We feel confident that our argument is built from a foundation of justice.”

Three months later, the New York judges ruled there was no legal precedent for chimpanzees to be considered people and denied Wise’s request for habeas corpus. Wise plans to take the case to the state’s highest court, the Court of Appeals.

Animal Rescue

Tommy is owned by Patrick Lavery, who sells trailers for transporting animals and who acquired the chimp from a circus owner living on his property. When Wise first saw Tommy, the animal was alone in a small cage in a dark shed reeking of bad milk; Lavery says that Tommy prefers solitude and likes to watch his TV and listen to his stereo. Yet after Wise saw Tommy’s living conditions, according to a New York Times writer who accompanied him, the lawyer said with a “quavering” voice, “I’m not going to be able to get that image out of my mind.…That’s a dungeon.”

Kiko’s owners, Carmen and Christine Presti, run a nonprofit, the Primate Sanctuary. To the best of its knowledge, the NhRP says on its website, Kiko “is held in a cage in a cement storefront attached to the Prestis’ house.”

Two years ago, the group represented a pair of chimpanzees named Hercules and Leo. A judge declined to free those two, who were being used in locomotion research at New York’s Stony Brook University, citing an earlier court ruling that habeas corpus applies only to humans. Wise says the pair were no more than three years old when taken from their mothers and caged in the basement of a computer building at Stony Brook, where experiments “involved having fine wires inserted in their muscles. Worse, they were forced to undergo general anesthesia once every month to six weeks, for years.” Stony Brook subsequently returned Hercules and Leo to their owner, a research center at the University of Louisiana, and the NhRP is now seeking their transfer to a chimp sanctuary.

As appalled as Wise is at such treatment of animals, the NhRP doesn’t claim that any of the owners violate cruelty laws. Wise’s argument is that humans should not have the right to keep them at all, because chimpanzees are autonomous beings with advanced minds that make them suffer in captivity, especially solitary confinement, just as a human locked in a cage would suffer. The NhRP has compiled 200 pages of affidavits from leading primatologists worldwide backing those assertions.

James R. Anderson, a psychologist and animal behavior specialist at Scotland’s University of Stirling, has written that “no other species comes so close to humans in self-awareness and language abilities, and in diversity of behaviors such as tool-use, gestural communication, social learning, and reactions to death.” Anderson says chimps recognize themselves in mirrors, which “requires holding a mental representation of what one looks like from another visual perspective.” They are empathetic, consoling each other and watching out for each other at road crossings. They plan for the future, as when they bring stones to different places to use for breaking open nuts. They’ve been observed caring for a dying group member, testing her for signs of life as she died, and cleansing the body. Chimps not only mimic each other’s facial expressions, but contagiously yawn as we do.

“Like humans, chimpanzees have a concept of their personal past and future,” the NhRP argues in court papers filed in Tommy’s case, “…they suffer the pain of not being able to fulfill their needs or move around as they wish….They suffer the pain of anticipating never-ending confinement.” And while no court has yet granted Wise his grail of chimp personhood, he is convinced that “the world is going our way rapidly.”

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