February 12, 2009

The Aggressive Streak in Libraries

Of all the recent positive trends in the book crime arena, maybe none is more heartening than this: libraries are getting aggressive.

Libraries and archives have always taken their role as victim seriously. But most often this meant background work: heroic cataloguing efforts to find out what was missing or research into the value of the stolen items to estimate recovery cost or testimony at trial concerning access gained by the thief. This work was usually done quietly, and at the behest of the prosecution.

That has changed in a big way, and the British Library seems to be the vanguard. (Which may simply be a result of necessity. No other institution has been more profligately and publicly looted by thieves in the past decade.)

In November, the BL filed a civil suit seeking roughly $500,000 in damages from (now jailed) thief/billionaire Farhad Hakimzadeh. The amount approximates what the BL feels the thief stole from them over the course of his years of crime. The suit, which came near the end of the criminal process, might either be an effort to recoup costs from a very rich man or to express displeasure at what looked to be a disappointing criminal sentence.

If it’s the latter, this is getting to be a trend for the BL. And a good one, at that. A couple of years ago, the British Library demonstrated this aggressive streak toward map thief E. Forbes Smiley.

In the American federal system, it’s fairly easy to predict a criminal sentence once a thief has pleaded guilty – the sentencing judge has very little latitude. So when it became clear to the BL that Smiley was not going to be adequately punished for his crimes against them, they offered their own opinion on the matter to the judge.

Hiring former United States Attorney Robert Goldman, an expert at prosecuting art crimes, the BL (through Goldman) submitted their own sentencing memorandum to the judge in the Smiley case. Goldman, using the knowledge of the sentencing procedures he had employed so successfully as a prosecutor, claimed that Smiley deserved more punishment than he was likely going to get.

The BL filing ultimately had very little impact on the Smiley sentence, but it did put the prosecution in the strange position of having to sing the praises of Smiley – to justify its comparatively lenient stance – while at the same time supporting its own sentencing recommendations (which weren’t really that lenient) against the Smiley defense.

So the prosecution, thanks to Goldman and the BL, sometimes came off sounding like the defense in their portrait of Smiley:

In providing credible information regarding those to whom he sold maps, the defendant saved the Government considerable effort and expense in its potential investigation of others, and saved those individuals from potential unwarranted reputational, financial and emotional injury.

And

During the past year since the time of his initial arrest by local authorities, the defendant approached the effort at recreating his thefts with substantial diligence, pouring [sic] over lists, reviewing microfiche or other images where applicable and otherwise trying to recreate his years of map collecting and thefts. This defendant arrived at the proffers prepared, answered questions directly, acknowledged when his recollection was fuzzy and qualified answer in a reasonable way. From any perspective the defendant has taken tremendous steps toward addressing the wrongs he committed.

It made for a strange pre-sentencing atmosphere, to say the least. Thanks to the work of the prosecution, Smiley ultimately received a substantial sentence: a stiff jail term of three and a half years (which he will serve the lot of; there’s no time off for good behavior in the American federal system) and nearly $2 million for restitution.

While this was less punishment than the BL hoped, the action certainly put thieves – and everyone else – on notice that the library was not going to take these crimes sitting down.

And the British Library isn’t the only cultural heritage institution acting this way.

The Mariners’ Museum, in Newport News, Virginia, filed a 2007 civil suit against its former Director of Archives, Lester Weber, in advance of a criminal case being filed against him. The criminal investigation (which ultimately led to a very satisfactory four year jail term for the thief) was proceeding slowly against Weber, and he had been walking free for six months. So the MM took matters into its own hands and filed the suit in local court.

While the Mariners’ Museum may have been frustrated with the pace of prosecution, Kenyon College, in Gambier, Ohio, was frustrated with the absence of prosecution of serial book thief, and former employee, David Breithaupt. In the years following the attacks of September 11th, 2001, federal criminal prosecution in the United States was not overly concerned with book crimes. So, taking the initiative, Kenyon filed a federal civil suit against Breithaupt. The college won the civil case at a jury trial and was awarded a substantial judgment – which, of course, Breithaupt had no ability to pay. A federal criminal case followed the civil trial, and Breithaupt later spent a year in federal prison for his thefts.

So cultural heritage institutions have recently proven that civil cases can be successful before, after or in lieu of state prosecution of the crimes. And whether these suits are filed with a legitimate expectation of a cash award or merely so that the institution can do something, they send the same message: we do not take theft of our materials lightly.

In each of these cases, the prosecution should be applauded for its efforts in putting the thieves in jail. But criminal filings are not mutually exclusive of civil suits. Our cultural heritage institutions ought not shy away from their own actions.

In light of Mark’s piece (below) on the relative merits of “certainty” versus “severity” in punishment, we might one day have enough evidence to debate the impact of the deterrent effect of criminal and civil cases in tandem versus simply criminal prosecutions.

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