Showing posts with label punishment. Show all posts
Showing posts with label punishment. Show all posts

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.