February 28, 2009

To Trick the Art World


“Mundus vult decipi, ergo decipiatur”

(“The world wants to be deceived, so let it be deceived”)

-S. Franck, Paradoxa, 1542

To trick the art world. It has been the primary motivation of nearly all of history’s known forgers. The financial gains aside, forgers often seek to fool the art community as revenge for having dismissed their own, original creations. And the art community, its scholars, collectors, curators, and salesmen, have proven themselves a forger’s best ally. The recent conviction of Shaun Greenhalgh and his family, the most diversely successful forgers in history, provides a fascinating lens through which to examine forgery, and the art world’s unconscious complicity with it.

The Facts

On 16 November of this year, the master art forger and failed contemporary artist Shaun Greenhalgh was convicted for conspiracy to defraud museums and other institutions. His octogenarian parents, Olive and George, were likewise convicted for their roles as frontmen in the elaborate con to sell Shaun’s forged creations. His brother, George Jr., awaits trial. The family had produced more than 120 fake artworks over 17 years, earning at least £825,000, and fooling experts from Christie’s, Sotheby’s, and The British Museum, among other illustrious victims. The most astonishing element of the forgeries is their breadth, the diversity of Shaun’s creations. From ancient-Egyptian to 20th century British sculpture, from Roman silver to 19th century paintings, from early-American bust portraits to Assyrian relief tablets. The Assyrian reliefs, meant to have come from Sennacherib’s palace in 700 BC Mesopotamia, were the first of Shaun’s creations to raise suspicion about the family, leading to their eventual arrest. An error was noted by experts at The British Museum, from whom the Greenhalghs had sought authentication—the reliefs contained misspelled words in cuneiform.

This is not a faux-pas of which Sennacherib would have approved. It did the Greenhalghs no good, either.

Shaun is likely unaware that the diversity of his forged objects, which successfully fooled experts, makes him a candidate for the title of history’s greatest forger. Detective Sergeant Vernon Rapley of Scotland Yard’s Arts and Antiques Unit remarked, “there are far better artists in this world than Shaun Greenhalgh, and far better forgers. But I’ve never come across a forger able to do that many disciplines. That’s what made him so exceptional and accomplished.” Rapley is correct, but he may make a bolder statement than this.

Shaun Greenhalgh is the most diversely successful forger in history.

One cannot easily assess the total earnings of the master forgers of whom we are aware, so gross illicit income is an inaccurate measure of success. Longevity of deceit is a category in which Shaun, with his 17-year tenure, can claim high rank. Few other forgers have had that long a run without arrest or discovery. But no single forger in history has created such a diversity of objects that successfully fooled experts. Master forgers, like master artists, usually specialize and excel at the production of one medium, one type of artwork, or even the work of one artist. And yet Shaun Greenhalgh flourished in all the styles and media to which he turned his hand. The shadow of his artistic wingspan is without equal in the world of forgery. Here are a few examples of Shaun’s work, and the con that fooled the experts. We shall then examine the con in detail, and see how the so-called “provenance trap” uses the art world’s own enthusiasm to pull the wool over its eyes.

Risley Park Lanx

A silver lanx, or decorative platter, dating back to ancient Roman occupation of Britain had indeed been found in 1736 at Risley Park, Derbyshire. One William Stuckeley described the discovery, and wrote that the lanx had been broken up by the ploughman who found it, the pieces distributed as souvenirs among his fellow workers. No record of the Risley Park lanx exists since then. In 1991 the Greenhalghs offered a Roman silver lanx to The British Museum. To get the materials right for their lanx, the Greenhalgh’s had bought relatively inexpensive original Roman silver coins, which they smelted using a miniature furnace, stored above their refridgerator. Their lanx had been fused together, the solder lines visible, making it look as though it was the complete, reattached Risley Park lanx of William Stuckeley’s description. In this example, one of many uses of the provenance trap con, the Greenhalghs had found a real piece of provenance for an authentic object that had been lost, and then created a forged version of the object, allowing the experts to draw the link and make the “discovery.”

“Goose” by Barbara Hepworth

The sculpture of a goose by Barbara Hepworth, circa 1927. The Greenhalghs claimed that the former director of the Leeds City Art Gallery, a relative of mother Olive’s, had willed them the piece. The real version of the sculpture, like the Risley Park lanx, was documented as having existed, but had been lost.

“Portrait of Nietzsche” by Otto Dix

This sculpted bust was a well-known highlight of an art collection in Dresden. Deaccessioned by the Nazis in 1939, it had been missing ever since. The Greenhalghs facilitated its “discovery.”

Amarna Princess

Purported to be a sculpture of one of the daughters of Pharaoh Akehenaten and Queen Nefertiti, this twenty-inch tall Egyptian calcite sculpture was meant to be from the Amarna Period, roughly 1350-1334 BC. The Greenhalghs acquired real Egyptian calcite for their fake, which was based on a similar piece made in red quarzite, on display at The Louvre. They also used a real entry in an 1892 catalogue for a sale at the Silverton Park estate as provenance, claiming that an ancestor had made the purchase. The con was even more elegant. George claimed that the sculpture had been assessed many years before as being worth about £500, an object that would “make a nice garden ornament.” The British Museum and Christie’s thought better of it than that, the latter valuing the sculpture at £500,000 pounds. Apparently this previous garden ornament was under-estimated by a factor of 100,000. The Bolton Museum would purchase the sculpture. Their representative, who met with the Greenhalghs at their home, left stating that George was “a nice old man who had no idea of the significance of what he owned.”

Assyrian Reliefs

Three Assyrian stone relief tablets, circa 700 BC and carved with figures, horses, and cuneiform writing, was brought by George to The British Museum for authentication. The atypical rendering of a horse’s harness and misspellings in cuneiform raised suspicions of the museum experts, who informed the police. The Greenhalghs created reliefs that were meant to embody a drawing made during an 1850 excavation of room 111 of the palace of Sennacherib, in what is now Iraq. The specific reliefs drawn during the excavation were labelled as having been “lost in history” by the excavating archaeologist, Sir Henry Austin Layard (1817-1894). George suggested that the reliefs might have been purchased by his ancestor at the Silverton Park sale, the catalogue of which he had used for the Amarna Princess provenance con. The Greenhalghs had bought a copy of the Silverton Park catalogue from an emphemerist in Bristol, and in fact created the relief tablets to match those described in the catalogue, the provenance preceeding the artwork. The stone to make the tablets had been purchased from a mason in Wiltshire—about as far as one can get from ancient Mesopotamia.

Other forged items include a sculpture by Surrealist Man Ray, a vase signed by Gaugin, a bust of a child by Brancusi, busts of John Adams and Thomas Jefferson by American sculptor Horatio Greenough, paintings by L. S. Lowry, and watercolours by Thomas Moran. Shaun boasted that he was so good at painting Morans that he could fire one off in 30 minutes. Over 120 successful forgeries have come to light, but Detective Sergeant Vernon Rapley of Scotland Yard’s Arts and Antiques Unit fears that over 100 more are still out there, mislabeled as the originals.

Forgery 101

There are three general types of art forgeries: 1) wholesale creation of artworks, 2) alteration of existing real artworks, and 3) misattribution of real artwork to increase value. Shaun’s works were of the first variety. But what made them fly were the provenance traps laid by the family. An understanding of the nature of the art world will help to see how well-set provenance snares can use the natural momentum of enthusiasm to further entangle the giddy willing victim.

A few terms will be of use. In art historical jargon, the word “lost” is the opposite of “extant.” An extant object is one for which the existence is documented and the location of the object is known. Lost, by contrast, refers to an object the existence of which is documented, but the object was either destroyed or its whereabouts are unknown. For most artists of the pre-Modern period, there are many more lost works than there are extant. Of the Renaissance artists, perhaps one-third of the documented creations are extant, and two-thirds are labelled as lost—destroyed accidentally or intentionally, misattributed, hidden (as happened so often during times of war), or simply and literally lost.

Take Caravaggio, for example. There are approximately one-hundred works which documents indicate that Caravaggio painted during his life. Out of these, approximately fifty are extant. The other fifty are lost. But in November of 2006, a newly discovered, hitherto lost Caravaggio was unveiled in London. While examining an archive, Caravaggio scholar and collector Sir Denis Mahon (who owns most of the Baroque paintings in The National Gallery) stumbled across a 17th century bill of sale of a Caravaggio to King Charles I. Suddenly a previously unknown painting could be added to the list of lost Caravaggios—a document attested to the one-time existence of a previously unknown painting. But where was it now? That question was answered when art historian Maurizio Marini found the very Caravaggio mentioned in the bill of sale, The Calling of Saints Peter and Andrew, dirty and faded in a storeroom at Hampton Court Palace. The lost Caravaggio was now extant, and went on display in the Queen’s Gallery at Buckingham Palace.

This story of the finding of a lost Caravaggio is a happy, and legitimate one. But the same hope for the rediscovery of lost works, and the enthusiasm that fuels it, can lead intelligent and normally cautious experts to authenticate questionable objects, and fall into the hands of forgers. The Greenhalghs knew this, and used it to their lucrative advantage.

The Provenance Trap Con

The dream of the art historian is to find a lost masterpiece. This ravenous hunger is a treasure hunt for grown-up intellectuals, with all the accompanying adrenaline and enthusiasm. The phenomenon that plagues and pleasures the art community is collective wishful thinking. The spark of hope that one is on the trail of a lost artwork produces a momentum such that contradictory clues may be ignored, and incongruous details overlooked. Examined from another perspective, it is in no one’s interest to find a possible great discovery to be a fake.

If an innocent-seeming George Greenhalgh shows up with the Amarna Princess that looks like it might be genuine, who benefits in proving it to be fake? George cleverly does not enter the situation claiming the forgery is real. He simply shows up, backed by a few tantalizing tidbits about where the object came from, culled from real provenances of a real, now lost object matching the description of the forgery in his hand.

Before money enters into it, the only beneficiary in disproving the “discovery” is an abstract sense of truth. Something that may or may not be real is determined not to be real. But what if it is deemed an original? Everyone benefits. The owner of the object now possesses a great treasure, to keep or sell for huge profit. The seller, be it an auction house, gallery owner, or other middle man, gains his commission. The new buyer, be it a museum or private collector, gains a rare trophy. Scholars are privvy to a new object to study, adding to their body of extant works and the knowledge amassed from them. The media can report on a great story, that there are hidden treasures among us, there for anyone to find. The collective wishful thinking of the art world unconsciously conspires to affirm the authenticity of newly-discovered works. The Greenhalghs noted this understandable, yet gaping crack in the armour of art authentication, and bent it to their advantage.

We have seen it in the Risley Park lanx, the Otto Dix bust of Nieztsche, the Amarna Princess, the Hepworth Goose. The Greenhalghs locate a real provenance for an object that has long been missing, lost to the art world. They then create a fake object matching the description of the missing artwork, and present it to authorities, perhaps adding a tantalizing clue that will lead from the forged object to the real provenance. Then the authorities do the rest of the work, so thrilled at the seeming rediscovery of a lost artwork that they don’t look too closely at the object itself. Vernon Rapley said: “I think with all of these things it was the provenances that sold them. Looking at them now I’m not sure the items would fool anyone. It was the credibility of the provenance that went with them.”

The Genius of the Frontman

Simply copying an artist’s work is not a crime. As long as there has been art, there have been artists copying one another. A copied work of art becomes a forgery only when one tries to pass it off as being the authentic work of one artist, when it is known to be by another. One word in the previous sentence, “known,” is key to the understanding of the art world, the trade, and the history of collecting—all of which coil up into that beautiful serpent, art forgery.

George Greenhalgh was the true performative star of the forgery campaign. His magnificent acting abilities, necessary for the success of a forgery con and yet often overlooked in favor of the sex appeal of the artist who created the fakes, is what closed the deal on objects that, when examined in the clarity of retrospect, would have fooled few. In appearance a kind, innocent old man George was a magnet for sympathy. He never states that the object in his hands is a specific real work, nor that it is real at all. He simply spools out the rope for the eager art industry to hang itself. He has planted the provenance trap. The work he proffers, which his son has created, was made to match up with a real provenance for a lost work. He dangles just enough backstory to aim the authenticating experts in the right direction, and then allows them to “discover” their way into matching this object before them with provenential bait. When they authenticate the work as the lost art indicated by the real provenance, George acts shocked. He either offers to sell the object there and then, or uses the authentication there provided to sell the object on elsewhere. The con works time and time again, as it has with all the forgers wily enough to employ it.

As the Messiah needs his prophet, great forgers need great frontmen. They are rarely one and the same, and they are rarely in the same family. Shaun and George Greenhalgh proved an effective and disgracefully brilliant one-two punch. George’s performances were calculated to take maximum advantage of the bear-traps the art industry lays for itself—those of optimism and unbridled enthusiasm.

To Trick the Art World

Few forgers practice their art for money alone. Deceiving the art world has been the goal of nearly every known forger in history. Shaun Greenhalgh is no different. If the future will permit interviews with Shaun, we may learn more about his impeti, which were certainly not, in the main, financial. The Greenhalghs made at least £825,000, and yet continued to live in relative squalor. The four Greenhalgh’s shared a tiny council flat in Bolton with two other family members, in a situation reminiscent of the poor hero’s family in Charlie and the Chocolate Factory. When asked by the police why he and his family continued to live in this simple and impoverished state even though they had so much money in the bank, Shaun replied with sincere conviction: “I have six brand new pairs of socks in my dresser drawer. What more could I want?” Shaun’s motivation, beyond earning enough to support himself and his family, was the flailing of a passive-aggressive two fingers at the abstract concept of the “art establishment” that had rejected his own original creations as worthless.

The prosecuting attorney, Peter Cadwallader, spoke of Shaun as a “gifted artist.” Noting that Shaun was an autodidact with almost no training nor background in the art world, Vernon Rapley commented, “It does show a real skill with no resources and no real facilities behind you to produce things like this.” The presiding judge, aptly and poetically named William Morris, stated “this was an ambitious conspiracy of long duration based on your undoubted talent,” words which surely satisfied Shaun Greenhalgh, tainted though they were in being pronounced alongside his prison sentence. But the judge was quick to add, “I speak of your talent but not in admiration.”

Shaun was sentenced to four years, eight months in prison. Olive was sentenced to twelve months suspended. George, who is in poor health, will be sentenced after medical examination.

And yet, had Shaun not succeeded at his goal? Detective Constable Ian Lawson, another of Scotland Yard’s Arts and Antiques agents, said, “[Shaun] thought he was having it over a lot of people that should have known better. It is more of a resentment of the art world, to prove that they could do it.” Shaun set out to fool the art establishment that had rejected his original creations. He made a fortune and fulfilled his passive-aggressive goals. He will be jailed for four years. When he is released he will likely find himself the career of many a celebrated forger—renowned and skilled criminals, they resume the trade that brought them fame, only now announce their work as admitted fakes. Their criminal eminence makes them collectible. Their genuine ability makes them sought after. Past master forgers (Elmyr de Hory, John Myatt, and Icilio Joni to name a few) have had illustrious careers after their brief imprisonment for forgery. Some forgers have become more famous than the artists they copied. Alceo Dossena (1878-1936) did not plan to forge ancient sculpture, and seems never to have intended to deceive. But his works were of such quality that hungry collectors and museums pronounced them authentic antiquities before he had a chance to admit otherwise. His works are now admired and housed in the Victoria & Albert Museum, in a corridor reserved for forgeries a quality so high that they surpass the works of the artists they purport to represent.

Perhaps Shaun Greenhalgh will have the last laugh, after all.

February 25, 2009

Iraq's National Museum resumes limited operations

The National Museum in Baghdad officially reopened, as a “working institution,” but it is not yet open to the public. Security risks loom large; armed guards patrol the roofs and survey the grounds from machine gun nests; more valuable objects remain vaulted away.

Check out the NYTimes video. There’s some amazing ancient statues, and it's a good feeling to see one of the greatest and oldest collections in the world on display again, despite the ongoing issues.

February 20, 2009

Iraq's National Museum nears re-opening

Iraq’s National Museum is scheduled to open on Monday, 2/23, unless it isn’t. Controversy rages over which ministry controls the museum, amid continued worries about security.
On February 11, Dr. Zainab al Bahrani, a former curator of the Met, Dr. Lamia al Gailani, a former curator of the Iraq National Museum, Dr. Donny George Youkhanna, a former Chair of Iraq’s Board of Antiquities and Heritage, and two others, signed a letter to Iraq’s government requesting postponement of the opening of the National Museum, for security reasons. The full text is available here.
The reopening would be a great step forward for Baghdad and Iraq. The collection, even reduced by looting, is one of the country’s crown jewels. The positive economic value of museums for tourism and education is undisputed, and much-needed in Iraq. However, it would be tragic to incur any further loss due to inadequate security, which is tantamount in a country with shaky peace. Over 12,000 items were stolen after the 2003 invasion, only half of which have been returned.

The Gardner Heist: An Interview with Author Ulrich Boser


Nearly twenty years after the largest art theft in history, the Isabella Stewart Gardner Museum whodunit mystery remains unsolved. Even as the hollow frames secured to the museum’s walls endure – wistfully remembering the million-dollar works of art they once decorated – the ISGM continues to thrive and be embraced by an artistic community that treats the Venetian palazzo not as damaged goods, but as a survivor. The museum is a testament to Mrs. “Jack” Gardner’s personal devotion to the arts. It transcends the collection of cultural curiosities it evolved into during her lifetime, and has become a retreat for people who share common affection for its contents.

Adopted by the city of Boston after marrying one of its richest sons, Gardner made “frequent ‘copy’ for two hemispheres” as she traveled the world and lived the life of an eccentric heiress. In his book, Isabella Stewart Gardner and Fenway Court (sold for $6 in 1925), Morris Carter, the museum’s first director, describes how her villa and its collection filled the void left by her inability to have children (a tragic childbirth in which her only child died in infancy resulted in Gardner’s being unable to have children thereafter). Gardner’s collection, which came to life with each new acquisition, seems to have assuaged these sorrows.

For many, a trip to the museum has become similar to what Gardner’s European travels were for her, “the opportunity for the acquisition of knowledge and cultural expansion.” The thieves, who for over an hour perused the collection, carried out not only priceless works of art, but also a portion of Mrs. Jack Gardner’s vibrant legacy.

Recently, in anticipation of the upcoming release of The Gardner Heist on February 24th, I was fortunate enough to speak with author Ulrich Boser, and hear what he had to say about the largest art theft in history.

MD: How did you come to inherit the files of famed art detective Harold Smith?

UB: Shortly after Smith died, I contacted his family and asked if I could look through his Gardner files. At first, they told me that his files were missing, that it appeared that someone had thrown them out. The family kept hunting, and it turned out that a number of Smith’s most important files had in fact been saved, including police reports and copies of old interviews. Smith had also written up some fictional accounts of his biggest cases, which his daughter Tara gave me. Smith’s family was very gracious, very open. I could not have written the book without their support.

MD: Did the ISGM assist you in your investigation and research?

UB: When I first sent my request for an interview to the museum’s public relations director, she emailed me back and said: “We have to decline access.” If I needed quotes, I could get a written statement from the director of the museum or interview the head of security. But I continued to write emails and letters, and we built up trust and a shared understanding. And since then the museum has been exceptionally supportive. They allowed me to interview director Anne Hawley. They allowed me to use images of the paintings. I’m particularly indebted to director of security Anthony Amore. He’s an ace investigator; he has been very helpful to me.

MD: What was your most memorable moment not contained in the pages of The Gardner Heist that you experienced?

UB: I wished I could have spent more time discussing Smith’s investigation of the Golden Door robbery. It took Smith years to crack the case; it is believed to be the largest gold heist in American history. I also talked a lot with art detective Charley Hill. That was also cut from the manuscript. Hill is a fascinating person and a great art detective. He was written up in Dolnick’s excellent book The Rescue Artist.

MD: How do you account for the eclectic selection of works stolen from the ISGM?

UB: While I think the Gardner thieves were expert criminals, they were not professional art thieves, and I think they didn’t really know the value of what they were taking. The thieves stole a few big-name items—the Rembrandts, the Vermeer—and then they seem to have nabbed whatever else caught their eye. How else can you explain the theft of the finial? The ku? Those items are valuable. But compared to a Vermeer or a Titian, they are little more than knickknacks.

MD: Why did the ISGM thieves not try to steal works of art that might have been easier to sell on the market (e.g. the Zorn’s in the Blue Room on the first floor)?

UB: If the thieves wanted to steal items and slip them back into the legitimate art market, they did make some good choices. The finial, the ku, you could certainly sell those artifacts on e-Bay. You might not get much money, but you could certainly pawn them off. The Vermeer, of course, would be nearly impossible to sell on the open market.

MD: How did your experiences as a journalist help or hinder you in your extensive research for The Gardner Heist?

UB: On one side, it helped. People want publicity, and so they would talk to me in an effort to get their story out to the public. On the other hand, being a journalist did occasionally hinder my efforts. I had to abide by journalistic norms, and I always identified myself as a reporter, I always made sure that off the record comments stayed off the record.

MD: How do you account for why the thieves spent such little time on the first floor of the museum and did not even make it up to the third floor where there are works by Titian, Velazquez, and Botticelli?

UB: Honestly I can’t tell you why the thieves spent such little time on the first and third floor. What is interesting, though, is the fact that the thieves were in the museum for over an hour. By the standards of a robbery, that’s a lifetime. Indeed, many robberies are over in minutes. And I think it shows that the thieves had a working knowledge of the museum’s security system before they entered the building. They must have had some sort of inside connection.

MD: As the global recession worsens will criminals involved in or close to the heist become more inclined to find the paintings and return them for the $5 million reward? Or is this more proof that those involved in the heist and its aftermath do not know the location of the works of art?

UB: I think that if someone had the art—and they were inclined to return it—they would have done it already. So yes what seems more likely is that those involved in the heist no longer know the location of the works of art. But no one knows for sure. After all, the art has not been returned. That’s the great mystery of the case.

MD: Do you believe that such a “successful” heist could occur in a museum of the same caliber as the ISGM today?

UB: The Gardner has done a lot to improve their security. They have many more cameras, many more guards, much better training. But the bottom line is that almost any museum can be robbed. If a thief is committed, they can usually find a way. But keep in mind that museums much larger than the Gardner get hit up too. In November 2006, for instance, someone managed to swipe some fossils from one of the Smithsonian’s galleries.

In the upcoming weeks, Boser will be on-tour stopping at a number of bibliophilic venues for readings, signings, and discussions. One may find his schedule here. Also, his passion for the unsolved Gardner heist has inspired him to organize “The Open Case – a magazine and web community devoted to solving unsolved crimes,” coming March 2009.

Originally posted at Art Theft Central: The Gardner Heist: An Interview with Author Ulrich Boser

February 13, 2009

Headlines Memo

  • The world's economic woes have hit art auctions; no surprise there. Sotheby's see over 50% reduction in sales in Hong Kong.
  • China and Taiwan agree to consider sharing their art.
  • SF Chronicle reviews a new book on the $600 million Gardner Heist.
  • The Iraqi National Museum, ransacked in 2003, is set to re-open.
  • Royal Canadian Mounted Police form their own art crime squad.
  • China demands return of two bronze sculptures, owned by Yves Saint-Laurent, taken in the Opium Wars.
  • Someone scratched Chicago's Bean.
  • When art is the crime: Obama portrait artist's notoriety continues with an arrest in Boston.

*Some sites require free registration.

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.

February 9, 2009

Art Theft: Does punishment really have a deterrence effect?

Earlier this month, in my post "Art Crime and Punishment" I discussed the need to establish punishment for committing various art crimes according to not only the harm inflicted on the public sphere, but also to the level of damage done to the work of art (its being beyond repair, or kept in proper humidity/temperature/preserving it while stolen). This post followed up one from December, "Numbers Game: Why Art and not a Ferrari?" that discussed the rates of success of criminals committing art theft compared to other crimes.

Recently, I researched documentation that supports this view that the certainty of punishment could be a motivation for crime. Currently, it is estimated that art theft cases are solved about 10% of the time. In August 1998, the National Center for Policy Analysis published an article on the Impact of Punishment on Crime. In "Certainty of Punishment vs. Severity of Punishment," the article discusses which is the greatest deterrent. The NCPA states,
In their decision making, prisoners are much more sensitive to changes in certainty than in severity of punishment. In terms of real-world application, the authors of the study speculate that "long prison terms are likely to be more impressive to lawmakers than lawbreakers." Supporting evidence for this viewpoint comes from a National Academy of Sciences panel which estimated that a 50 percent increase in the probability of incarceration prevents about twice as much violent crime as a 50 percent increase in the average term of incarceration. Likelihood of punishment often tends to affect property crimes more than violent and sexual offenses. This point is borne out in a study by Itzhak Goldberg and Frederick Nold showing that in communities where more people report burglaries to the police, fewer burglaries take place. A tendency to report crimes has an aggregate deterrent effect on criminals because it raises expectations of punishment. (reference to Itzhak Goldberg and Frederick C. Nold "Does Reporting Deter Burglars? An Empirical Analysis of Risk and Return in Crime," Review of Economics and Statistics 62, August 1980, pp. 424-31)
Accordingly, in light of the FBI's claim that 12.4%, 18.6%, and 12.6% of burglaries, larceny thefts, and motor vehicle thefts, respectively, were considered cleared by arrest or by exceptional means, it would be easy to conclude that the criminal mind would be drawn to art theft more so than other crimes. The greater the possibility for his or her getting away with art theft, as this study highlights, certainly must influence the criminal mind.

Some food for thought:
The NCPA states in the beginning of the excerpt that some studies show it is "prisoners" who are more sensitive to the certainty of punishment. This should be accounted for as not every art thief is a Myles Connor-type repeat offender. Nevertheless, the NCPA attempts to support a blanket claim by citing that the likelihood of punishment has a greater deterrence effect on nonviolent crimes as opposed to violent and sexual. The report also states that there is a decrease in burglary statistics in communities where more people report burglaries to the police.

Additionally, it would be interesting to see the art crime stats since the UK passed the "Dealing in Cultural Objects (Offences) Act 2003." The Act in Section 1 provides conviction on indictment of up to 7 years imprisonment and/or a fine, where a person: dishonestly deals in a cultural object that is tainted, knowing or believing that the object is tainted (Simon Mackenzie and Green, Penny, "Criminalising the Market in Illicit Antiquities," http://ssrn.com/abstract=1004267). In his other research, Mackenzie questions the effectiveness of such an act in discouraging the illicit trade.

Rather than passing stricter legislation with severer penalties, it would appear that the Sûreté du Québec and RCMP's announcement to create a new squad dedicated to art related crimes is the proper course of action.