By Travis McDade
Ten years ago, responding to $200,000 worth of thefts by curator Shawn Aubitz, United States Archivist John Carlin said he had “appointed a high-level management task force to review internal security measures” at the National Archives. “A preliminary set of recommendations are under review and a number of new measures are already in place.” Four years later, an unpaid summer intern smuggled 160 documents out of the very same Archives branch. His only tool was a yellow legal pad.
In the decade since the Aubitz crime was meant to alert us to the flow of documents stolen from American archives, our nation’s most important cultural heritage institutions have undergone something of a bloodletting. Pilfered, plundered, and looted by a series of men whose sole motivation was money, the institutions that were supposed to be locked down remained more akin to open air markets. For weighty evidence, look no further than this fact: the decennial anniversary of Aubitz’s sentence coincides almost exactly with the sentencing of an archives thief who out-stole him by a factor of ten.
That man — predator historian Barry Landau — was sentenced on Wednesday to a solid seven years in prison. The reason for this sentence is the one bright spot in an otherwise grim decade in archives history and it has absolutely nothing to do with improved security or the work of task forces.
Federal sentencing is basically a numbers game. The more numbers a prosecutor can add to the level of the crime, the greater the sentence. Thanks to the work of the United States Sentencing Commission, archives theft now has a lot more numbers than it did when Aubitz was caught. This mattered a great deal in the Landau sentence.
Because his thefts involved “objects of cultural heritage,” Landau’s calculation started at a level eight crime instead of a level six. He got an added two levels because he stole from a “museum” — an umbrella term under which archives fall in the United States Code. Another two was added for theft involving pecuniary gain and another two for “a pattern of misconduct involving cultural heritage resources.” In total, this is an eight level bump. Absent these added levels, his crime would put him instead — given the number of items he stole and his time off for cooperation and acceptance of responsibility — at a total level of 19. This would have given Judge Catherine Blake a range of between 30 and 37 months in jail from which to choose. Instead, the added eight levels brought Landau to a level 27 crime, giving Judge Blake a choice of between of 70 and 87 months. (She chose 84 months, at the high end of that range.) That is a remarkable difference, and it is thanks largely to the US Sentencing Commission decision to treat our cultural heritage seriously.
I say “largely” because Landau’s sentence is dependent upon more than just the guidelines. The Cultural Heritage Resources Guideline is a tool that is only as good as the federal prosecutor using it, and I’ve seen the work of the Sentencing Commission undone by poor prosecutorial performance before. But not here. The US Attorneys prosecuting this case basically got out of Landau’s sentence all they could. In fact, their reach exceeded their grasp a little bit, in an effort to get another two levels based on an idea never used in archives theft — that Landau was the “organizer, leader, manager, or supervisor” in the series of thefts. If this had been accepted by Judge Blake, there was the possibility that Landau could have been sentenced up to 108 months in jail (fully nine years). This is an indication that the prosecution took the case seriously, and knew how to use the guidelines in defense of our cultural heritage. This is very good news.
In the aftermath of the Landau crimes there was much talk — as after Aubitz, Daniel Lorello, Lester Weber, David Breithaupt, Denning McTague, Eugene Zollman, Howard Harner, Leslie Warren, Edward Renehan, etc. — that this time was the last. There was word of “thousands of hours and dollars” spent on security and new measures and training and, well, you get the point. But what caught Landau and the rest of these men was none of that stuff. It was a hearty mix of skepticism, luck and good old fashioned attention-paying. And what is going to keep him in jail until he’s 70 is a bit of federal law few people have heard of. Maybe if more potential thieves had heard of it, we’d have fewer items of cultural heritage for sale on eBay.
There are several interesting confluences roiling the waters of archives theft right about now, making for a strange moment. As I noted, we are only one month short of the tenth anniversary of the Shawn Aubitz sentence. Landau’s sentence, at 84 months, is exactly four times what Aubitz got. But it is also twice that of Lester Weber, the archives thief who, before Landau, was sentenced most strongly for his crimes. So when does Weber, this past decade’s second most prolific archives thief, get out of prison? Today.
That these two thieves, taken together, will spend a decade behind bars is a fact that bodes both good and ill. Good that these men are now looking at serious jail time for stealing our cultural heritage; ill that they keep stealing enough of it to qualify for these harsh sentences.
Travis McDade is Curator of Law Rare Books at the University of Illinois College of Law. He is the author of The Book Thief: The True Crimes of Daniel Spiegelman and a book on a Depression-era book theft ring operating out of Manhattan forthcoming from Oxford University Press in spring 2013. He teaches a class called “Rare Books, Crime & Punishment.”