April 3, 2002

Re: Penalties for Cultural Heritage Resource Crimes

Dear Senators Leahy and Hatch:

On behalf of the Sentencing Commission, and pursuant to the Commission’s statutory charge under 28 U.S.C. §§ 994(r) and 995(a)(20), I am writing to recommend that Congress consider enacting legislation to increase the maximum statutory penalties for three federal crimes involving cultural heritage resources. These changes are warranted because the offenses are serious and the proposed increases would correspond to the punishment levels in the Commission’s new guideline for cultural heritage resource offenses.

These three statutes – the Archaeological Resources Protection Act (ARPA), 16 U.S.C. § 470ee; the Native American Graves Protection and Repatriation Act (NAGPRA), 18 U.S.C. § 1170; and Theft from Indian Tribal Organizations, 18 U.S.C. § 1163, are basic tools of federal prosecution for offenses involving cultural heritage resources.1 Increased statutory maxima for these offenses will give full effect to the operation of the new sentencing guideline for cultural heritage resource offenses that the Commission will send to Congress on May 1, 2002. We therefore recommend elimination of the 12- and 24-month ceiling for first offenses under NAGPRA and ARPA, respectively, and adoption of a ten year statutory maximum for all three statutes (currently five years).

The Commission recently completed a two year examination of cultural heritage resource crimes and found that existing sentencing guidelines are inadequate for the wide variety of
federal crimes involving the theft of, damage to, destruction of, or illicit trafficking in cultural heritage resources. Cultural heritage resources include national memorials, landmarks and parks, together with archaeological and other historic resources specifically dedicated to the preservation of the nation’s heritage. Because individuals, communities, and nations identify themselves through intellectual, emotional, and spiritual connections to places and objects, the effect of cultural heritage resource crimes transcends mere monetary considerations. The Commission has determined that a separate guideline is needed that specifically recognizes both the federal government’s longstanding obligation and unique role in preserving these resources and the harm caused to the nation and its inhabitants when its history is degraded through the destruction of cultural heritage resources.

As a result, the Commission has approved a separate sentencing guideline which reflects the fact that offenses involving cultural heritage resources are more serious because they involve essentially irreplaceable resources and cause intangible harm to society. The actual and potential cases which the Commission considered in its review range from vandalism and terrorism at historic landmarks and cemeteries to looting and theft of archaeological resources and human remains from federal and Indian lands.

Upon close scrutiny the Commission recognized that treatment of these offenses against unique and irreplaceable resources under traditional property offense guidelines would not be adequate to reflect the significance of the resources and the concomitant harm to the identity of the nation and its communities. Not only are the offenses themselves very serious and deserving of substantially more punishment, but the conduct of many of the offenders, professional looters who are well armed and dangerous to law enforcement and innocent passers-by, requires increased proportional punishment.

For example, currently under the general guideline for theft and property damage at §2B1.1, a sentence for vandalism to the Vietnam Memorial would be determined primarily by the amount of intended or actual pecuniary harm. If a federal administration building sustains the same amount of harm caused by vandals, the same punishment would result under current law. The Commission has determined that the magnitude of the harm caused to a national memorial and landmark is greater precisely because of the symbolic and historic nature of the object of the
Senators Leahy and Hatch offense conduct, together with the fact that such resources are unique, nonfungible, and irreplaceable.

Accordingly, the Commission has taken steps to ensure that the punishment for such cultural heritage resource crimes takes such factors into consideration by promulgating a new guideline at §2B1.5 for this unique category of offenses. (See enclosure.) This new guideline will account for the fact that the offense involves items and locations specially designated by Congress over the years for preservation and education about the nation’s heritage. The Commission has also been mindful of the potential for terrorist attacks against symbols of our nation and has provided for proportionate increases in punishment in the event that such violence occurs in connection with cultural heritage resources.

Surprisingly, when the Commission scrutinized the panoply of federal statutes that are used to prosecute offenses involving both property and cultural heritage resources, it found three significant disparities among the various statutory maxima for these offenses. These disparities impede Congress’s ultimate objectives of proportionality and the elimination of unwarranted disparity, as enunciated in the Sentencing Reform Act of 1984. The examples below illustrate these disparities.

First, two cultural heritage resource statutes subordinate the amount of harm caused by the offender to the number of the offender’s convictions under the statute. ARPA has one year and two year statutory maxima (based on a $500 threshold) for the first offense, and NAGPRA has a one year maximum for the first violation, irrespective of the amount of harm caused by the offender’s conduct. In contrast, general property crime statutes, such as Theft and Destruction of Government Property at 18 U.S.C. §§ 641 and 1361, do not have a statutory cap based on whether the offense was the defendant’s first violation of the particular statute.

The second disparity is that both ARPA and NAGPRA, together with the federal law prohibiting theft from tribal organizations, have five year statutory ceiling, whereas the theft and destruction of government property statutes have ten year limits. The third disparity is that even statutes specifically protecting cultural heritage resources have different statutory maxima. Thus while the ARPA and NAGPRA statutory maxima are both five years, the 1994 federal law proscribing museum theft at 18 U.S.C. § 668 has a ten year statutory maximum, similar to the general property crimes.

The Commission suggests eliminating these caps in ARPA and NAGPRA for first violations and raising the statutory maximum for ARPA, NAGPRA, and Theft from Tribal Organizations to ten years. This change will not only achieve consistency with other federal property crimes but will also eliminate potential obstacles to the proportional punishment of cultural heritage resource crimes and allow for the full implementation of the sentencing guideline structure that the Commission has determined is appropriate for such crimes.

A few illustrations may suffice to underscore the problem. A looter in the Civil War Battlefield at Manassas has violated the Archaeological Resources Protection Act (ARPA) by disturbing human remains while collecting $10,000 worth of buttons, belt buckles, and rifle shells to sell at an antique show, causing $30,000 in damage to the battlefield’s terrain. Under the Commission’s new guideline, this defendant qualifies for a sentence of between 27 and 33 months (without chapter three adjustments) based on the magnitude of the harm as measured by
the aggravating factors that the Commission has delineated. This offender's possible sentence would be twenty-four months under the statutory maximum if it were his first ARPA conviction.

Similarly, a defendant who violates NAGPRA by stealing and attempting to sell Native American ceremonial masks and skulls unearthed from a burial site on tribal lands that have a commercial value on the black market of $150,000, and who threatens the use of a firearm when apprehended by law enforcement agents, qualifies for a sentence under the new guideline of 51 to 63 months. Nonetheless, if it is the defendant’s first NAGPRA conviction, his sentence is capped at 12 months. Even if prosecuted and convicted under 18 U.S.C. § 1163 (Theft from Tribal Organizations), its five year statutory maximum comes into play and prevents the sentencing judge both from applying the high end of the guideline range, if appropriate, and from adjusting upwards to account for the defendant’s prior criminal history.

In the actual case of a sophisticated and notorious professional looter of ancient Anasazi archaeological sites who operated for over a decade in remote federal lands, both in national parks and national forests, the seventy-eight month sentence calculated in 1997 under §2B1.1
United States v. Shumway, 112 F.3d 1413 (10th Cir. 1997), could double to between 135 and 168 months under the new guideline at §2B1.5. Such a defendant, if convicted only of an ARPA violation, will not serve this appropriately severe penalty reflecting the magnitude of harm because of ARPA’s five-year statutory maximum. Such an egregious violator would not even serve his full guideline sentence under the ten year statutory maximum for a single count of damage to government property (18 U.S.C. § 641). Raising ARPA’s statutory maximum to correspond to other federal crime statutes would not constrain the operation of the new sentencing guideline which the Commission has promulgated.

The Commission has taken an important step to ensure that damage to our nation’s cultural heritage resources is appropriately punished, for example, by requiring that the use of a destructive device to accomplish such a crime receive more severe punishment and providing enhanced punishment for other aggravating factors in the offender’s conduct. This goal cannot be completely achieved, however, if the statutory ceiling for these offenses is too low to permit a full application of the guideline criteria for fair and proportionate punishment. For other general property crimes, such as interstate computer or car theft, the statutory maximum does not generally restrict the application of the sentencing guidelines.

I respectfully urge the Congress to consider the changes we have recommended and will be pleased to provide you or your staff with additional information that may assist you in your consideration.

Sincerely,

Judge Diana E. Murphy, Chair

enc.

cc: Commissioners
Timothy McGrath, Staff Director
Kenneth Cohen, Director, Office of Legislative Affairs