Art Theft: The Unseen Masterpiece

Sometime between September 12 and September 14, 2012, burglars broke into the Santa Monica home of wealthy bond expert, Jeffrey Gundlach.  While the exact target of the burglars remains unknown, they surely recognized the monetary value of Mr. Gundlach’s vast collection of expensive artwork from famous artists such as Joseph Cornell, Piet Mondrian, Guy Rose, and Philip Guston.  Sparing little, the burglars fled with roughly $10 million of Mr. Gundlach’s possessions including thirteen paintings, a multitude of expensive watches, and bottles of fine wine.  In an ending seemingly scripted for Hollywood, the burglars piled into Mr. Gundlach’s red Porsche Carrera 4S and drove away into the night, but only after remembering to close the garage door on the way out.

Enthralling tales of art theft captivate American society.  Whether Harrison Ford is battling crooks to recover stolen artifacts in Indiana Jones; or Sean Connery and Katherine Zeta-Jones are snatching Rembrandts and ancient Chinese masks in Entrapment; or Matt Damon, George Clooney, Brad Pitt, and Julia Roberts team up to swindle the Imperial Coronation Egg in Ocean’s 12; one thing is certain, art thieves are rich, sexy, and smart.  Perhaps not surprisingly, the art thief as portrayed by Hollywood, lives primarily on the big screen and not in reality.  However, that is not to say that art theft is not a real problem.  The Department of Justice estimates the art crime industry to be worth roughly $6 billion a year, only surpassed by drug trafficking and the arms trade as the most profitable criminal trades over the last fifty years.

With such a large economic impact, it would be reasonable to infer that art crime garners a substantial amount of attention by law enforcement and the American public alike.  Unfortunately, such an inference would be inaccurate.  Art crime attracts little study from criminologists and underwhelming funding from government agencies.  The FBI’s Art Crime Team is composed of fourteen dedicated agents and three attorneys.  Only a few police departments such as Los Angeles and New York have special art crime teams, and according to the FBI, most countries do not have dedicated art crime police forces.  

Nevertheless, Congress has established a body of law to combat art crime.  The passage of the National Stolen Property Act (NSPA) criminalized the trafficking of stolen goods worth over $5,000.  In 1983, Congress passed the Cultural Property Implementation Act (CPIA) to stem the flow of black market artifactsinto the United States by imposing strict limitations on art likely obtained illegally.  The CPIA also established the Cultural Property Advisory Committee within the U.S. State Department to advise the president on issues involving cultural property.  More recently in United States v. Shultz, the Court of Appeals for the Second Circuit delivered a blow to corrupt art dealers by holding that NSPA extends not only cultural property stolen from private individuals, but to property stolen from foreign governments as well.  But while the law may be recognizing the significance of combating art crime, the public seems to be lagging behind.

It is likely that the public views art crime as just another property crime.  It is easy to devalue the cultural significance of stolen artwork that only indulges the private eyes of the wealthiest members of society, such as Mr. Gundlach.  However, theft from private collections is only a part of the larger problem.  Antiques are routinely looted from archeological sites and then sold on the black market.  But crimes against ancient, buried artifacts rarely generate the headlines necessary to make the public aware of the problem.

Furthermore, it is easy to view art theft as a victimless crime.  Paintings do not shoot bullets, explode, or have adverse health effects like drugs and arms.  After all, Brad Pitt and George Clooney steal for revenge or excitement, and Sean Connery merely wants some additions to his private collection.  Such a view of art theft does not, however, delve deep enough into the world of art crime.  Underneath the Hollywood veil, there is a world of international organized crime with ties to funding all types of illicit activities from drug trafficking, to the arms trade, to possibly terrorism.

It has been alleged that hijacker, Mohammad Atta, tried to sell looted Afghani artifacts in Germany to obtain funding for the 9/11 attacks.  The International Council of Museums recently reported that it plans to produce a list of valuable ancient artifacts located in Syria.  It then plans to distribute the list to police agencies around the world in hopes of stemming the international trade of looted artifacts for guns.  Still, not all art theft is linked to organized crime and the funding of violent activities; the extent of such connection is unknown.  Nevertheless, one must only dust off the history books to see that it is by no means a new phenomenon.

Perhaps what Hollywood fails to establish, and what the general public might not realize, is that art theft is a crime against world cultures.  Unfortunately, art crime results in far more than monetary loss; it is often an unrecognized loss for history.

Jared Engelking

Blogger, Criminal Law Brief

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Doing Time “Gangham Style”

Many people are familiar with the dancing inmates of the Cebu Provincial Detention and (DRC) thanks to their rendition of Michael Jackson’s “Thriller” that went viral on Youtube.[1]  Well these dancing inmates are at it again, this time with a performance of Psy’s “Gangham Style”, the music video that now holds the Guinness World Record for most likes on Youtube.  Cebu’s rendition of this music video has been uploaded for a little more than a week and already has over three million views.[2]  While these videos are entertaining they also bring another question to mind.  Is this choreographed exercise program at CPDRC a good form of rehabilitation?

CPDRC is a maximum-security prison located in the Philippines.  The inmates there are charged with murder, rape, drug-trafficking and other serious offenses, yet they practice a growing repertoire of dance routines up to four hours every day.[3]  This program, started by Byron Garcia the security consultant for the prison, originally began as prisoners’ marching in uniform to the beat of a drum, and evolved into dancing to pop music.  Garcia’s attempts to draw attention to the benefits of his new program had been ignored by other prisons in the area so he began posting Youtube videos of these dances.  His plan worked thanks to the popularity of the “Thriller” video;  by the end of 2007, eight other prisons in the Philippines had adopted some of Garcia’s new methods, including dance.[4]

So what exactly are the benefits of this program used in the CPDRC?  Garcia states that weekly outbreaks of violence have subsided, inmates’ health have improved, and recidivism rates (repetition of criminal activity) are down.  One inmate in the prison stated “I like dancing.  It is a way we get to show the world that even if we ended up in prison, we are not totally damaged people.”  Other similar programs in the United States have seen similar results.  The Rehabilitation through the Arts program currently operates programs in five men and women’s New York State correctional facilities.[5]  These programs include theatre, dance, creative writing, voice and visual art.  Studies done on participants in these programs have shown that men involved in these programs have completed educational programs beyond the GED than the comparison group.  They also report a higher level of positive coping and have had fewer infractions and spent fewer days locked in their cells as a disciplinary measure.  This program also builds communication, conflict management skills, self-confidence, trust and literacy skills. 

There have been some speculations that this program may not be all it seems.  Some people have stated that the public performances put on by the inmates are nothing more than a profit making measure and that because of this the inmates are being forced to dance.  I can understand how something like this, with paying admission to watch the inmates dance could lead to corruption or the desire to use the shows just to make money.  However, if it is controlled I do not see how it is a problem to have an extra income for the prison.  Even if this is not done, the idea itself of using dancing is still a good one. 

What are your thoughts on using dance as a means of rehabilitation in prison?  Personally I cannot see something like this as a bad thing.  It gives prisoners a way to not only have fun and exercise but also gives them something to care about.  The inmates at the CPDRC put on live shows for spectators every month and everything I have read indicates that they really enjoy it.  The events have even inspired a twelve part web series called Prison Dancer that may become a Broadway musical.[6]  Personally, anything to me that gets people involved in dancing is a good one.  It gives individuals, even prisoners, a way to channel their energy into something good. 

Nicole Irwin

Blogger, Criminal Law Brief

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[1] http://www.kcet.org/arts/artbound/counties/orange/prison-dancer-a-transmedia-musical-hopes-to-transcend-borders.html
[2] http://www.rta-arts.com

[3] http://www.inquisitr.com/351792/max-security-inmates-in-the-philippines-dance-gangnam-style-video/

[4] http://www.nytimes.com/2008/01/15/world/asia/15iht-inmates.1.9223130.html?pagewanted=all

[5] http://www.youtube.com/watch?v=hMnk7lh9M3o

[6] http://www.youtube.com/watch?v=o1AGTGLL_wg&feature=player_embedded

Supreme Court Watch: Florida v. Jardines––October 31, 2012

On October 31^st, the United States Supreme Court will hear oral argument in Florida v. Jardines, (October Term 2012, 11-564) (for the Florida Supreme Court’s opinion click here).  This case presents a Fourth Amendment issue:  Is a dog sniff at the front door of a suspected grow house by a trained drug-detection dog a search requiring probable cause?

 After receiving a Crime Stoppers tip that a house in south Dade County was being used as a grow house, law enforcement officers began a surveillance.  A canine handler and his partner joined the surveillance team.  During the surveillance the canine handler, his partner, and a second officer approached the home.  The canine began to track the odor of the controlled dangerous substance, alerting to the presence of a substance by sitting down immediately after sniffing the front door.  While at the front door, the second officer smelled the odor of live marijuana.  Police subsequently obtained a search warrant––included in the application for the search warrant was the fact that the canine had alerted on the house.

The trial court granted defense motions to suppress––finding the use of a drug detector dog at the defendant’s house door constituted an unreasonable search under the Fourth Amendment.

In 1983, Justice O’Connor delivered the opinion in U.S. v. Place, 462 U.S. 696 (1983).  This case raised the issue whether the Fourth Amendment prohibited law enforcement from temporarily detaining personal luggage for a scan by a trained drug-detection canine.  Justice O’Connor wrote, “[t]he manner through which information is obtained through this investigative technique is much less intrusive than a typical search.”  The Justice noted, “[t]he canine sniff is sui generis.”  Justice Douglas was the sole dissenter, though his dissent did not address the canine issue specifically.

The following year, the Supreme Court in U.S. v. Jacobsen, 466 U.S. 109 (1984) expanded on its holding in Place and held that a police investigatory tool––such as a dog sniff or a chemical test––is not a search if it merely reveals the presence or absence of contraband.  The Court reasoned that the privacy interest in possessing contraband is not one that society recognizes as reasonable.  Later, in 2001 Maryland Court of Appeals decision, the state's highest court held that a K-9 scan of a vehicle is neither a search nor a seizure, and Fourth Amendment issues do not arise.

In Illinois v. Caballes, 543 U.S. 405 (2005), the Supreme Court was presented with another Fourth Amendment issue regarding the use of a narcotics-detection dog to sniff around the exterior of a vehicle during a traffic stop.  Justice Stevens writing for the majority held that, “a dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.”

The membership of the court has changed since Justice Stevens wrote Caballes in 2005.  Justice Stevens along with Justice Souter, who was a dissenter in Caballes, and Justice O’Connor have retired from the Court.  Although he took no part in the decision, Chief Justice Rehnquist is also no longer serving on the Court.  The four new justices, Alito, Sotomayor, Kagan, and Chief Justice Roberts appear to be ideologically equally divided.  The true unknown in this upcoming case is Justice Scalia.  Although thought to be pro-government, earlier this year in another Fourth Amendment case, United States v. Jones, 586 U.S.    (2012), Justice Scalia found the government placing a GPS tracking device on a vehicle to be a search.  In Jones police had attached the GPS tracking device to a vehicle while it was parked in a public parking lot.  Justice Scalia was particularly offended by this trespass on the personal property of the vehicle’s owner.  There were no dissenting opinions in that case.  Caballes has a trespass component to the facts––police officers enter the cartilage with a narcotic detecting dog and follow the dog up to the front door where the dog alerted.

In their upcoming decision in Jardines, it is possible that the Court will follow and extend Jones, thus resisting the temptation to weaken the protection of the Fourth Amendment as Justice Douglas counseled in Place.

Jeffrey Wennar

Guest Blogger, Criminal Law Brief

Legalizing Prostitution

“Baby, cash money.”  With these words a Colombian prostitute initiated a deal with a U.S. Secret Service Agent that would eventually create a scandal and embarrass the entire agency.  Widely considered the “world’s oldest profession”­­––prostitution is the act of performing sexual acts in exchange for money.  It’s interesting though, that the world’s oldest profession is a crime in many places.  Just last week, on September 25, 2012, Anne Gristina plead guilty to running a prostitution ring in New York.  She’s not the first person to be convicted of assisting with prostitution.  Heidi Fleiss is one of the more famous people who got convicted for participating in the prostitution.  Around the world, in a survey of one hundred countries, at least 61% have some form of legal prostitution.  Today in the United States, prostitution is illegal everywhere except for 11 counties in Nevada.  Should prostitution be a crime in the U.S.?   

 There are strong opinions on both sides of the fence regarding prostitution.  One side thinks that prostitution should be a crime because it’s immoral and leads to additional criminal activity, as well as the spread of sexually transmitted diseases.  On the other side is a group that believes prostitution should not be a criminal violation and prostitutes should be recognized as workers like everyone else.  Among those that advocate for non-criminal prostitution, there are those in favor of legalizing prostitution and those in favor of decriminalization.  Legalization entails the state regulating a particular practice––here the practice of prostitution.  Decriminalization is when the state has no laws related to the practice.  Proponents of decriminalizing prostitution advocate for the removal of all laws related to prostitution.  There would be no criminal laws under which prostitutes could be punished.  This would allow prostitute to seek legal assistance if cheated or assaulted and would reduce law enforcement costs of policing and prosecuting prostitutes.[1] 

Arguments for Legalized Prostitution	Arguments Against Legalized Prostitution
·      Increased rights for prostitutes ·      Decrease in public expenditures on prosecuting prostitutes and customers ·      Increased safety for prostitutes ·      Increased revenue for the state in the form of taxes ·      Liberation of women from the paternalistic bonds of the government	·      It’s immoral ·      Exploits women ·      Increases crime ·      Attracts prostitutes from countries where it is illegal ·      Spreads sexually transmitted diseases ·      Will eventually lead to a decreased in the quality of life prostitutes

Why Legal Prostitution Can Work

Prostitution should be legalized instead of decriminalized.  Prostitution is an industry that should be regulated in some way––mainly for the purpose of ensuring the safety of prostitutes and promoting the protection of their employment rights.  It should not be regulated in order to perpetuate gender stereotypes and paternalism by the government.

Western society has a long history of enacting paternalistic laws, which in effect, control the behavior of women.  For example, women were prohibited from engaging in many professions simply because they of their gender.  In a Supreme Court case, Bradwell v. State, Bradwell, a woman, was denied the opportunity to practice law because “natural and proper timidity and delicacy [of] the female sex” make her unfit to do many occupations.  The criminalization of prostitution is a remnant of this time.  The state is essentially telling women what is best for them, what job they can have, and under what circumstances they can engage in sexual behavior.  Criminalizing prostitution infringes upon the individual liberty a woman has to decide whom to have sex with and to choose the employment that she desires.  The state should not be in the business of regulating how an individual uses her body.  State regulation of behavior based on the state’s interpretation of morality is wrong.  We saw this back during the days of miscegenation, when the state prohibited individuals of different races from marrying.  Loving v. Virginia was the case that led to the decriminalization of this practice.  The Lovings (a White husband and Black wife) were convicted and sentenced to jail for being married since they were not the same race.  This was considered a morally right practice––frequently, scriptures from the Bible were cited in support of the practice.  Today, we see regulating behavior based on morality in the gay marriage debate.[2]  States are regulating whom people can marry largely due to moral justifications.  While everyone is able to have her or his own opinions about what is right and moral, the state should not impose its morals on its citizens.

Prostitutes should be considered employees in their chosen field.  They deserve the same rights and protections that other employees enjoy.  In a country where prostitution is legal, a prostitute may able to break the chains of the pimp and avoid much of the danger associated with the job.  She can work for herself, choose her clients, and work in a safe work environment.  She does not have to worry about being fearful of reporting crime committed against her and can get benefits like her counterparts who are not in the sex industry.

Some argue that legalizing prostitution will encourage or increase human trafficking.  This claim has little merit.  It is entirely possible for the state to legalize prostitution and at the same time prohibit the forcing of individuals into prostitution.  Legalizing prostitution will have no effect on federal laws prohibiting human trafficking.  In fact, decriminalization or legalization of prostitution could decrease human trafficking.  Right now, because there is no legitimate market for prostitutes, individuals are trafficked in to meet the demand.  If women (and men) were able to be prostitutes legally, there is likely a large number of people who would be prostitutes, but for its illegal status.  The amount of prostitutes will increase when it is legalized and there will be enough workers to meet the demand.

There are a number of regulated regimes under which legal prostitution could operate.  One option is the decriminalization model, where all existing laws related to the prohibition are removed and it is allowed to operate on its own.  Another alternative is to allow prostitution to be legal but maintain statutes prohibiting pimping, a situation when a person serves as an “agent” of a prostitute and takes some of her earnings, and statutes prohibiting others from financially benefitting off prostitution.  Yet another model used in some countries is to allow prostitution, but criminalize street prostitution.  The model used in most of the counties in Nevada where prostitution is legal, is to allow it in certain cities and only in state regulated brothels. 

Legal prostitution can work in the United States; even though it may have some negative drawbacks like any other profession.   It may take much time for the stigma associated with it to erode, however through state regulation, prostitution can be a safe, legitimate and profitable business

Bethany J. Peak

Blogger, Criminal Law Brief

Author’s Note:  Throughout the blog I refer to prostitutes as women only for ease of writing. I understand that there are men prostitutes as well, however, since the majority are women, I focus on their concerns.

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[1] Michael Conant, Federalism, the Mann Act, and the Imperative to Decriminalize Prostitution, 5 Cornell J.L. & Pub. Pol'y 99 (1996).

[2] Dent Jr., George, The Defense of Traditional Marriage, 15 J.L. & Pol. 581, 588 (1999), (commenting that “. . . moral considerations are appropriate in law-making . . . “)

Will the Supreme Court Address Whether the Government May Abolish the Insanity Defense?

The Supreme Court’s new term started October 1st, but the Court met on September 24th to consider whether to grant new cases.  One case that the Court is still considering hearing is Delling v. Idaho.[1]  The main issue in Delling is whether Idaho violated the Fourteenth Amendment to the Constitution by abolishing the insanity defense in criminal cases.  The Court has never addressed what the answer to this question might be; if the Court hears it, Delling will be the first time states have any guidance as to the constitutionality of outlawing the insanity defense in criminal cases.

Most crimes require that the government prove beyond a reasonable doubt that the defendant intended to commit an act.  The insanity defense usually involves the question of whether a person was too insane to be considered legally responsible for his actions.  This defense could be a complete defense to the crime, so if proven, the person would not have to serve time in jail.  In 2005, Idaho changed the law so that insanity was no longer allowed as a defense.[2]  John Delling, the defendant in this case, was prevented from using insanity as a defense by that Idaho law.  Instead, he would have to prove that he could not form the intent to commit a crime because he is insane.  This will allow the defendant to defend himself against a charge that requires a specific kind of intent, but not against other charges.  For example, a defendant may be able to defend himself from being convicted of first-degree murder, which requires intent, but not involuntary manslaughter, which does not.  The insanity defense, on the other hand, would have absolved the defendant of criminal responsibility.

Delling was accused of killing two people and deemed competent to stand trial in February of 2008.[3]  He then agreed to a conditional plea, where he would plea guilty to both killings, but not give up his right to appeal the Idaho law preventing him from presenting an insanity defense.  Delling was sentenced to life in prison following this plea.

Delling’s main argument is that Idaho’s law preventing him from presenting an insanity defense is unconstitutional under the Fourteenth Amendment.  The Fourteenth Amendment guarantees every person due process before their life, liberty, or property is taken away.[4]  Delling argued that by not allowing him the opportunity to present insanity as a complete defense, Idaho deprived him of his due process rights. 

The Idaho Supreme Court disagreed, stating that numerous cases before Delling’s took no offense to the law abolishing the insanity defense in Idaho.  The court also stated that the United States Supreme Court had several opportunities to state whether Idaho acted constitutionally when it abolished the insanity defense.  Despite these opportunities, the Supreme Court has never said whether or not a state must allow a defendant to pose an insanity defense.  In fact in footnote twenty in Arizona v. Clark, the Supreme Court specifically acknowledged that it had never weighed in on this question.[5]  That footnote stated the Court did not need to address that question in Clarkand left the issue for another time.

The Court was very careful not to state how it would ultimately reach such a question.  The fact that the Supreme Court felt the need to acknowledge that there may be a constitutional issue when some states abolish the insanity defense should mean that the Court would eventually grant certiorari to address the issue.  All Delling can ask now is whether the Court is ready to address that question in his case. 

But regardless of how the Court ultimately decides whether states can abolish the insanity defense, the Court should hear Delling’s case.  Some states now allow the insanity defense, while others do not.  Someone who commits a crime in Idaho will not have the same defenses available as if he committed that crime in another state.   This creates a discrepancy of justice across state lines.  While laws in one state are frequently different than laws in another state, this is a question of what is constitutionally allowed.  If the Court decides that states are allowed to abolish the insanity defense, at least other states will have a choice to make.  Right now those states may be waiting on the Court to offer guidance. 

Conversely, if the Court decides that abolishing the insanity defense is unconstitutional, there are people in jail in Idaho right now who might not need to be there.  The insanity defense involves whether a person could be held accountable for his actions; if the Court agrees that the insanity defense cannot be abolished, it should apply its decision retroactively.  Defendants who were not responsible for their actions should not stay locked away simply because they committed a crime before the Supreme Court addressed this question.  If the ruling would apply retroactively, this is all the more reason that the Court should hear Delling’s case now.  Otherwise, state courts will have to hold more retrials to see if a defendant was criminally insane at the time of their actions.  The Court should grant certiorari in Delling to decide this question.

Bonnie Lindemann

Blogger, Criminal Law Brief

Image by: Phil Roeder

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[1] http://www.supremecourt.gov/opinions/05pdf/05-5966.pdf

[2] http://www.law.cornell.edu/constitution/amendmentxiv

[3] http://www.isc.idaho.gov/opinions/delling%2036920.pdf

[4] http://law.justia.com/codes/idaho/2005/18ftoc/180020007.html

[5] http://www.isc.idaho.gov/opinions/delling%2036920.pdf