[Senate Report 107-258]
[From the U.S. Government Publishing Office]
Calendar No. 575
107th Congress Report
SENATE
2d Session 107-258
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ENHANCED PROTECTION OF OUR CULTURAL HERITAGE ACT OF 2002
_______
September 9, 2002.--Ordered to be printed
_______
Mr. Bingaman, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S. 2598]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 2598) to enhance the criminal penalties
for illegal trafficking of archaeological resources, and for
other purposes, having considered the same, reports favorably
thereon with an amendment and recommends that the bill, as
amended, do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Enhanced Protection of Our Cultural
Heritage Act of 2002''.
SEC. 2. ENHANCED PENALTIES FOR CULTURAL HERITAGE CRIMES.
(a) Enhanced Penalty for Archaeological Resources.--Section 6(d) of
the Archaeological Resources Protection Act of 1979 (16 U.S.C.
470ee(d)) is amended by striking ``not more than 10,000'' and all that
follows through the end of the subsection and inserting ``in accordance
with title 18, United Codes, or imprisoned not more than ten years or
both; but if the sum of the commercial and archaeological value of the
archaeological resources involved and the cost of restoration and
repair of such resources does not exceed $500, such person shall be
fined in accordance with title 18, United States Code, or imprisoned
not more than one year, or both.''
(b) Enhanced Penalty for Embezzlement and Theft From Indian Tribal
Organizations.--Section 1163 of title 18, United States Code, is
amended by striking ``five years'' and inserting ``10 years''.
(c) Enhanced Penalty for Illegal Trafficking in Native American
Human Remains and Cultural Items.--Section 1170 of title 18, United
States Code is amended--
(1) in subsection (a), by striking ``or imprisoned not more
than 12 months, or both, and in the case of a second or
subsequent violation, be fined in accordance with this title,
or imprisoned not more than 5 years'' and inserting
``imprisoned not more than 10 years''; and
(2) in subsection (b), by striking ``imprisoned not more than
one year'' and all that follows through the end of the
subsection and inserting ``imprisoned not more than 10 years,
or both; but if the sum of the commercial archaeological value
of the cultural items involved and the cost of restoration and
repair of such items does not exceed $500, such person shall be
fined in accordance with this title, imprisoned not more than
one year, or both.''
Purpose
The purpose of S. 2598 is to enhance the penalties for
illegal trafficking of archaeological resources.
Background and Need
S. 2598 will increase the maximum penalties for violations
of three statutes that protect the cultural and archaeological
history of the American people, particularly Native Americans.
The statutes amended are 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 the statute prohibiting theft from Indian Tribal
Organizations, 18 U.S.C. 1163.
The United States Sentencing Commission (``Commission'')
has unanimously recommended amendment of these statutes to
strengthen their maximum sentences. Following a two-year review
of cultural heritage resource crimes, the Commission recently
approved a separate sentencing guideline. This guideline
recognizes that offenses against cultural heritage resources
are more serious due to the essentially irreplaceable nature of
the resources involved. Because individuals, communities, and
nations identify themselves through emotional and spiritual
connections to places and objects, the effect of cultural
heritage resource crimes transcends mere monetary
considerations. In addition to the serious nature of the
offenses, the conduct of many of the offenders, professional
looters who are dangerous to law enforcement and innocent
passers-by, requires increased proportional punishment.
While the serious nature of cultural heritage crimes merits
correspondingly severe punishment, the purpose of this
legislation is not to increase sentences for these crimes
across the board. Instead, the legislation seeks to eliminate
three significant disparities among the statutory maximum
sentences for various crimes against property and cultural
heritage resources. The Commission concluded that the three
sentencing disparities frustrate Congress's objectives of
proportionality and the elimination of unwarranted disparity,
as set forth in the Sentencing Reform Act of 1984.
First, NAGPRA and ARPA limit sentences for the first
offense to one or two years, respectively, regardless 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 limit
sentences for the first offense.
The second disparity is that both ARPA and NAGPRA, together
with the Federal statute concerning theft from tribal
organizations, have five-year maximum sentences, whereas the
theft and destruction of government property statutes have ten-
year limits. The third disparity is that even statutes
specifically protecting cultural resources have different
maximum sentences. While the ARPA and NAGPRA maximum sentences
are five years, the 1994 Federal law proscribing museum theft
has a ten-year maximum sentence, similar to general property
crimes.
In order to address these disparities, the Commission has
recommended two changes: (1) eliminating the sentencing limits
in ARPA and NAGPRA for first violations, and (2) raising the
maximum sentences for ARPA, NAGPRA, and theft from tribal
organizations to ten years, consistent with other statutes for
crimes against property and cultural resources. By making these
changes, S. 2598 would authorize punishment for serious
cultural resources crimes in proportion to the severity of the
crimes involved.
Legislative History
At the business meeting on July 31, 2002, the Committee on
Energy and Natural Resources ordered S. 2598, as amended,
favorably reported.
Committee Recommendation
The Committee on Energy and Natural Resources, in open
business session on July 31, 2002, by a unanimous vote of a
quorum present, recommends that the Senate pass S. 2598, if
amended as described herein.
Committee Amendment
During the consideration of S. 2598, the Committee adopted
an amendment in the nature of a substitute. The substitute
amendment ensures that maximum penalties are increased under
the Archaeological Resources Protection Act (ARPA), 16 U.S.C.
470ee(d), and for cultural items under the Native American
Graves Protection and Repatriation Act (NAGPRA), 18 U.S.C.
1170, but that misdemeanor offenses are retained, so that
relatively minor offenses will continue to be prosecuted while
more significant crimes will receive more appropriate felony
penalties.
The substitute amendment is explained in detail in the
section-by-section analysis, below.
Section-by-Section Analysis
Section 1 entitles the Act the ``Enhanced Protection of Our
Cultural Heritage Act of 2002.''
Section 2(a) amends section 6(d) of the Archaeological
Resources Protection Act of 1979 (16 U.S.C. 470ee(d)) by
increasing maximum criminal penalties to a $100,000 fine and 10
years imprisonment. The existing maximum criminal penalties are
a $100,000 fine and five years imprisonment, with a lower
maximum fine and sentence for the first offense. The amendment
also provides that if the sum of the commerical and
archaeological value of the archaeological resources involved
and the cost of restoration and repair of such resources does
not exceed $500, maximum sentences shall be fines in accordance
with title 18, United States Code, imprisonment not more than
one year, or both.
Subsection (b) amends the statute governing embezzlement
and theft from tribal organizations, 18 U.S.C. 1163, by
increasing the maximum sentence from five to ten years.
Subsection (c) amends 18 U.S.C. 1170, the Native American
Graves and Repatriation Act. This subsection increases the
maximum sentence for trafficking in the human remains of Native
Americans in violation of NAGPRA to 10 years imprisonment. The
existing maximum is just one year for a first offense, and five
years for subsequent convictions. This subsection likewise
increases the maximum sentence for trafficking in Native
American cultural items in violation of NAGPRA to 10 years
imprisonment. For these crimes as well, the existing maximum is
just one year for a first offense, and five years for
subsequent convictions. Finally, for violations involving
Native American cultural items, this subsection provides that
if the sum of the commerical and archaeological value of the
cultural items involved and the cost of restoration and repair
of such items does not exceed $500, maximum sentences shall be
fines in accordance with title 18, imprisonment not more than
one year, or both.
Cost and Budgetary Considerations
The following estimate of the cost of this measure has been
provided by the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, August 15, 2002.
Hon. Jeff Bingaman,
Chairman, Committee on Energy and Natural Resources,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2598, the Enhanced
Protection of Our Cultural Heritage Act of 2002.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Megan
Carroll.
Sincerely,
Robert A. Sunshine
(For Dan L. Crippen, Director).
Enclosure.
congressional budget office cost estimate
S. 2598--Enhanced Protection of Our Cultural Heritage Act of 2002
CBO estimates that implementing S.2598 would not
significantly affect the federal budget. The bill could affect
direct spending and receipts; therefore, pay-as-you-go
procedures would apply, but we estimate that any such effects
would total less than $500,000 a year. S. 2598 contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act and would impose no costs on
state, local, or tribal governments.
S. 2598 would increase maximum fines and imprisonment terms
for certain crimes against Indian tribes and for illegal
trafficking under the Archaeological Resources Protection Act
and the Native American Graves Protection and Repatriation Act.
Based on information from the U.S. Sentencing Commission, CBO
estimates that the bill's provisions probably would affect
fewer than 50 cases each year. Because the new penalties would
apply to a small number of offenders, we estimate that any
increase in costs for prison operations would not be
significant and would be subject to the availability of
appropriated funds.
Because those prosecuted and convicted under S. 2598 might
be subject to increased criminal fines, the federal government
might collect additional finds under the bill. Collections of
such fines are recorded in the budget as governmental receipts
(revenues), which are deposited in the Crime Victims Fund and
later spent. CBO expects that any increased receipts and direct
spending would be negligible because of the small number of
cases involved.
The CBO staff contact for this estimate is Megan Carroll.
This estimate was approved by Peter H. Fontaine, Deputy
Assistant Director for Budget Analysis.
Regulatory Impact Evaluation
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee makes the following
evaluation of the regulatory impact which would be incurred in
carrying out S. 2598. The bill is not a regulatory measure in
the sense of imposing Government-established standards or
significant responsibilities or private individuals and
businesses.
No personal information would be collected in administering
the program. Therefore, there would be no impact on personal
privacy.
Little, if any, additional paperwork would result from the
enactment of S. 2598.
Executive Communications
The pertinent legislative report received by the Committee
from the Department of the Interior setting forth Executive
agency recommendations relating to S. 2598 is set forth below.
Also set forth below is a May 20, 2002 letter from the United
States Sentencing Commission to the Chairman and Ranking Member
of the Committee, setting forth the Commission's views on the
subject matter of S. 2598.
U.S. Department of the Interior,
Office of the Secretary,
Washington, DC, July 25, 2002.
Hon. Jeff Bingaman,
Chairman, Committee on Energy and Natural Resources,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: This letter sets forth the views of the
Department of the Interior on S. 2598, Enhanced Protection of
Our Cultural Heritage Act of 2002.
The Department generally supports the enhancement of
statutory penalties for cultural resource crimes, however, it
is unclear whether this bill will, in all instances, strengthen
cultural heritage protection.
S. 2598 would propose to change the statutory penalties for
illegal trafficking under the Archaeological Resources
Protection Act (ARPA; 16 U.S.C. 470ee), for embezzlement and
theft from Indian tribal organizations (18 U.S.C. 1163), and
for illegal trafficking in Native American human remains and
cultural items under the Native American Graves Protection and
Repatriation Act (NAGPRA; 18 U.S.C. 1170).
It is unclear whether S. 2598 would strengthen ARPA.
Currently, ARPA, as read in conjunction with 18 U.S.C. 3571,
provides for a graduated system that allows for citation of a
Class A misdemeanor as well as a Class D or E felony, depending
on the value of the resource and whether or not the offense is
a first or subsequent offense. As currently drafted, S. 2598
would eliminate such a graduated system, and instead provided
only the option to charge an ARPA offense as a Class C felony.
Although increasing maximum fines and imprisonment terms would
seem to strengthen ARPA eliminating the option to charge a
crime as a misdemeanor, in fact, may result in fewer
prosecutions. U.S. Attorneys Offices may be reluctant to
prosecute a case if the defendant's conduct was not so
egregious as to normally warrant felony prosecution. Similarly,
juries may be reluctant to hold a defendant responsible if a
felony conviction appears overly harsh in a particular case.
Thus, the Department supports strengthening, the maximum
penalties, while retaining a graduated system that will provide
the U.S. Attorneys Office with the discretion to charge a
defendant with an offense that more appropriately fits the
conduct involved. In addition, it is unclear what type of
violations the ARPA provision in S. 2598 intends to address.
Although the heading appears to apply only to illegal
trafficking under ARPA, the subsection amended would actually
cover other crimes under ARPA as well. We would like an
opportunity to further review the bill and to work with the
Committee and the U.S. Department of Justice to craft
appropriate language that would more clearly accomplish our
mutual goals.
Earlier this year, the Department expressed its support for
the establishment of a sentencing guideline for the protection
of cultural heritage resources. After a two-year review, the
United States Sentencing Commission had found that existing
sentencing guidelines inadequately covered a variety of
offenses involving the theft of, damage to, destruction of, or
illicit trafficking in cultural resources, including national
memorials, archeological resources, national parks, and
national historic landmarks. Because individuals, communities,
and nations identify themselves through intellectual,
emotional, and spiritual connections to places and objects, the
effect of cultural resources crimes sometimes transcends mere
monetary considerations. Consequently, the Commission
transmitted to Congress on May 1, 2002 a proposed guideline
amendment that takes into account the transcendent value of
these irreplaceable resources, and punishes in a proportionate
way the particular offense characteristics associated with the
range of cultural resources crimes. These amendments will take
effect on November 1, 2002, unless Congress passes legislation
disapproving them.
Though most Americans may think of looting as a crime that
takes place during times of civil unrest, the Department has
come to know better. Surprisingly, cultural resource crimes
occur frequently and have been occurring with increased
frequency on our federal lands. One Bureau of Land Management
archeologist in Utah estimates that 80 percent of the surface
artifacts at one site have disappeared within the last two to
three years. We have seen a shift in the type of looter who
commits these crimes. Countless magazine and newspaper articles
and television shows discussing cultural resources has led to a
dramatic drop in offenses committed by ``the casual looter,'' a
recreationist who picks up an artifact while hiking or damages
an archeological site. Although this type of theft and damage
still occurs, these incidents are uncommon. A more recent trend
is the theft and damage of cultural resources by ``professional
looters,'' hard-core looters who sell the resources for
monetary gain and often have criminal histories, usually drug-
related or violence related. Professional looters educate
themselves about the locations of archeological sites and the
kinds of artifacts and grave goods that may be found at those
sites. Many of them are technologically savvy, using Global
Positioning Systems (GPS) and conducting extensive computer
research to locate specific sites.
In order to maximize the impact of our law enforcement
efforts, we have joined forces with other federal agencies to
educate law enforcement officers regarding the pervasive
criminal activity. Until we are able to completely deter such
criminal conduct, we must work hard to use the criminal and
civil enforcement tools at our disposal to diminish the looting
of our national and Indian treasures. In working closely with
the Department of Justice, United States Attorneys, and federal
law enforcement officials, we have found that effective
prosecutions under ARPA and NAGPRA receive positive publicity
and raise the public awareness of the seriousness of these
crimes. We believe that such prosecutions can have a positive
deterrent effect.
The Office of Management and Budget advises that there is
no objection to the presentation of this report from the
standpoint of the Administration's program.
Sincerely,
Patricia Lynn Scarlett,
Assistant Secretary for Policy,
Management and Budget.
------
U.S. Sentencing Commission,
Washington, DC, May 20, 2002.
Re: Penalties for Cultural Heritage Resource Crimes
Hon. Jeff Bingaman,
Chairman, Senate Committee on Energy and Natural Resources, Dirksen
Senate Office Building, Washington, DC.
Hon. Frank Murkowski,
Ranking Member, Senate Committee on Energy and Natural Resources,
Dirksen Senate Office Building, Washington, DC.
Dear Senators Bingaman and Murkowski: On behalf of the
Sentencing Commission, and pursuant to the Commission's
statutory charge under 28 U.S.C. Sec. Sec. 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. Sec. 470ee; the Native
American Graves Protection and Repatriation Act (NAGPRA), 18
U.S.C. Sec. 1170; and Theft from Indian Tribal Organizations,
18 U.S.C. Sec. 1163, are basic tools of federal prosecution for
offenses involving cultural heritage resources.\4\ 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).
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The criminal provisions of ARPA, enacted in 1979, prohibit: (1) the
unlawful excavation, removal, damage or defacement of archaeological
resources located on public or Indian lands; (2) the sale, receipt,
exchange, or purchase of archaeological resources unlawfully obtained
from public or Indian lands; and, (3) the interstate or foreign sale,
receipt, purchase, exchange, or transportation of archaeological
resources removed or obtained in violation of State or local law.
The criminal provisions of NAGPRA, enacted in 1990, prohibit the
sale, purchase, use or transportation for sale or profit of Native
American Human Remains and Native American cultural items obtained from
public or Indian lands. The crime of Theft from Tribal Organizations,
18 U.S.C. Sec. 1163, prohibits, among other things, the theft or
conversion of goods, assets, or other property belonging or entrusted
to the custody or care of an Indian tribal organization or its
officers, employees, or agents.
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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 offense
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 Sec. 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 theoffense 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 Sec. 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. Sec. Sec. 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. Sec. 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.
Sec. 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 Sec. 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
Sec. 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. Sec. 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.
Enclosure.
2. CULTURAL HERITAGE
Synopsis of Amendment: This amendment provides a new
guideline at Sec. 2B1.5 (Theft of, Damage to, Destruction of,
Cultural Heritage Resources; Unlawful Sale, Purchase, Exchange,
Transportation, or Receipt of Cultural Heritage Resources) for
offenses involving cultural heritage resources. This amendment
reflects the Commission's conclusion that the existing
sentencing guidelines for economic and property destruction
crimes are inadequate to punish in an appropriate and
proportional way the variety of federal crimes involving the
theft of, damage to, destruction of, or illicit trafficking in,
cultural heritage resources. The Commission has determined that
a separate guideline, which specifically recognizes both the
federal government's long-standing obligation and role in
preserving such resources, and the harm caused to both the
nation and its inhabitants when its history is degraded through
the destruction of cultural heritage resources, is needed.
Cultural heritage resources include national memorials,
landmarks, parks, archaeological and other historic and
cultural resources, specifically designated by Congress and the
President for the preservation of the cultural heritage of this
nation and its ancestors. The federal government acts either as
a trustee of the public generally, or as a fiduciary on behalf
of American Indians, Alaska Natives and Native Hawaiian
Organizations, to protect these cultural heritage resources.
Because individuals, communities, and nations identify
themselves through intellectual, emotional, and spiritual
connections to places and objects, the effects of cultural
heritage resource crimes transcend mere monetary
considerations. Accordingly, this new guideline takes into
account the transcendent and irreplaceable value of cultural
heritage resources and punishes in a proportionate way the
aggravating conduct associated with cultural heritage resource
crimes.
This guideline incorporates into the definition of
``cultural heritage resource'' a broad range of existing
federal statutory definitions for various historical, cultural,
and archaeological items. If a defendant is convicted of an
offense that charges illegal conduct involving a cultural
heritage resource, this guideline will apply, irrespective of
whether the conviction is obtained under general property theft
or damage statutes, such as laws concerning the theft and
destruction of government property, 18 U.S.C. Sec. 641,
interstate sale or receipt of stolen property, 18 U.S.C.
Sec. Sec. 2314-15, and smuggling, 18 U.S.C. Sec. Sec. 541 et
seq., or under specific cultural heritage statutes, such as the
Archaeological Resources Protection Act of 1979, 16 U.S.C.
Sec. 470ee (ARPA), the criminal provisions of the Native
American Graves Protection and Repatriation Act (NAGPRA) at 18
U.S.C. Sec. 1170, and 18 U.S.C. Sec. 668, which concerns theft
from museums. In addition, if a more general offense is charged
that is referenced in Appendix A to Sec. 2B1.1, this guideline
will apply by cross reference if the offense conduct involves a
cultural heritage resource and results in a higher offense
level.
This new guideline has a base offense level of level 8,
which is two levels higher than the base offense level for
general economic and property destruction crimes. The higher
base offense level represents the Commission's determination
that offenses involving cultural heritage resources are more
serious because they involve essentially irreplaceable
resources and cause intangible harm to society.
The new guideline also provides that the monetary value of
the cultural heritage resource is an important, although not
the sole, factor in determining the appropriate punishment. The
Commission has elected not to use the concept of ``loss'',
which is an integral part of the theft, fraud, and property
destruction guideline at Sec. 2B1.1 (Theft, Property
Destruction, and Fraud), because cultural heritage offenses do
not involve the same fungible and compensatory values embodied
in ``loss.'' Instead, under this new guideline, value is to be
based on commercial value, archaeological value, and the cost
of restoration and repair. These methods of valuation are
derived from existing federal law. See 16 U.S.C. Sec. 470ee(d);
43 C.F.R. Sec. 7.14.
The Commission has recognized that archaeological value
shall be used in calculating the value of archaeological
resources but has provided flexibility for the sentencing court
to determine whether either commercial value or the cost of
restoration and repair, or both, should be added to
archaeological value in determining the appropriate value of
archaeological resources. For all other types of cultural
heritage resources covered by this guideline, the Commission
has provided flexibility for the sentencing court regarding
whether and when to use all or some of the methods of
valuation, as appropriate, for calculating the total value
associated with the harm to the particular resource caused by
the defendant's offense conduct. The value of the cultural
heritage resource is then referenced to the monetary table
provided at Sec. 2B1.1(b)(1) in order to determine appropriate
and proportionate offense levels in a manner consistent with
the overall guidelines structure.
The new guideline provides five additional specific offense
characteristics to provide proportionate enhancements for
aggravating conduct that may occur in connection with cultural
heritage resource offenses. In providing enhancements for these
nonpecuniary aggravating factors, the Commission seeks to
ensure that the nonquantifiable harm caused by the offense to
affected cultural groups, and society as a whole, is adequately
reflected in the penalty structure.
The first two of these enhancements, at subsections (b)(2)
and (b)(3), relate to whether the offense involves a place or
resource that Congress has designated for special protection. A
two level enhancement attaches if the offense involves a
resource from one of eight locations specifically designated by
Congress for historic commemoration, resource preservation, or
public education. These are the national park system, national
historic landmarks, national monuments, national memorials,
national marine sanctuaries national cemeteries, sites
contained on the World Heritage List, and museums.
Consistent with the definition in 18 U.S.C. Sec. 668(a)(1),
museums are defined broadly to include all organized and
permanent institutions, with an essentially educational or
aesthetic purpose, which exhibit tangible objects to the public
on a regular schedule. Adoption of this definition reflects the
Commission's recognition that cultural heritage resource crimes
affecting institutions dedicated to the preservation of
resources and associated knowledge, irrespective of the
institution's size, ownership, or funding, deprive the public
and future generations of the opportunity to learn and
appreciate the richness of the nation's heritage. Similarly,
this enhancement reflects the Commission's assessment that
damage to the other listed places degrades not only the
resource itself but also the historical and cultural aspects
which the resource commemorates.
An additional two level enhancement attaches to offense
conduct that involves any of a number of specified resources,
including human remains and other resources that have been
designated by Congress for special treatment and heightened
protection under federal law. Funerary objects, items of
cultural patrimony, and sacred objects are included because
they are domestic cultural heritage resources protected under
NAGPRA. See 25 U.S.C. Sec. 3001. Cultural property, designated
archaeological and ethnological material, and pre-Columbian
monumental and architectural sculpture and murals are included
in the enhancement because these are cultural heritage
resources of foreign provenance for which Congress has chosen,
in the implementation of international treaties and bilateral
agreements, to impose import restrictions. See 19 U.S.C.
Sec. Sec. 2092, 2606, and 2607.
This guideline also provides a two level enhancement at
subsection (b)(4) if the offense was committed for pecuniary
gain or otherwise involved a commercial purpose. This increase
is based on a determination that offenders who are motivated by
financial gain or other commercial incentive are guideline at
Sec. 2B1.5 if the resulting offense level under it would be
greater than under Sec. 2B1.1. When a case involving a cultural
heritage resource is sentenced under Sec. 2B1.1, loss
attributable to that cultural heritage resource is to be
determined using the definition of ``value of the cultural
heritage resource'' from Sec. 2B1.5.
The Commission recognizes that the full implementation of
this new guideline for the most serious offenders often will be
limited in its application because of the extremely low
statutory maxima of some of the potentially applicable
statutes, such as the criminal provisions of ARPA, NAGPRA, and
18 U.S.C. Sec. 1163 (covering the theft of tribal property).
Currently ARPA has either a one year or two year statutory
maximum term of imprisonment for the first offense, depending
on whether the value exceeds $500, and NAGPRA has a statutory
maximum term of imprisonment of one year for the first offense
irrespective of value. These statutes all have five year
statutory maximum terms of imprisonment for second and
subsequent offenses. Consequently, the statutory ceiling may
limit the full range of proportionate guideline sentencing, but
the Commission has promulgated this new guideline to cover the
wide variety of potential offense conduct that can occur in
connection with cultural heritage resources. The Commission has
recommended to Congress that the statutory maximum terms of
imprisonment for these offenses be raised appropriately.
Sec. 2B1.1. LARCENY, EMBEZZLEMENT, AND OTHER FORMS OF THEFT; OFFENSES
INVOLVING STOLEN PROPERTY; PROPERTY DAMAGE OR
DESTRUCTION; FRAUD AND DECEIT; OFFENSES INVOLVING
ALTERED OR COUNTERFEIT INSTRUMENTS OTHER THAN
COUNTERFEIT BEARER OBLIGATIONS OF THE UNITED STATES
* * * * * * *
(c) Cross References
* * * * * * *
(4) If the offense involved a cultural heritage resource,
apply Sec. 2B1.5 (Theft of Damage to, or Destruction of
Cultural Heritage Resources, Unlawful Sale, Purchase, Exchange,
Transportation or Receipt of Cultural Heritage Resources), if
the resulting offense level is greater than that determined
above.
* * * * * * *
Commentary
* * * * * * *
Application Notes:
1. Definitions.--For purposes of this guideline:
``Cultural heritage resource'' has the meaning given that
term in Application Note 1 of the Commentary to Sec. 2B1.5
(Theft of Damage to, or Destruction of Cultural Heritage
Resources, Unlawful Sale, Purchase, Exchange, Transportation or
Receipt of Cultural Heritage Resources).
* * * * * * *
2. Loss Under Subsection (b)(1).--This application note
applies to the determination of loss under subsection (b)(1).
* * * * * * *
(F) Special Rules.--Notwithstanding subdivision (A), the
following special rules shall be used to assist in determining
loss in the cases indicated:
* * * * * * *
(vii) Value of Cultural Heritage Resources.--In a case
involving a cultural heritage resource, loss attributable to
that cultural heritage resource shall be determined in
accordance with the rules for determining the ``value of the
cultural heritage resource'' set forth in Application Note 2 of
the Commentary to Sec. 2B1.5.
* * * * * * *
Sec. 2B1.5. THEFT OF, DAMAGE TO, OR DESTRUCTION OF, CULTURAL HERITAGE
RESOURCES; UNLAWFUL SALE, PURCHASE, EXCHANGE,
TRANSPORTATION, OR RECEIPT OF CULTURAL HERITAGE
RESOURCES
(a) Base Offense Level: 8
(b) Specific Offense Characteristics
(1) If the value of cultural heritage resource (A) exceeded
$2,000 but did not exceed $5,000, increase by 1 level; or (B)
exceeded $5,000, increase by the number of levels from the
table in Sec. 2B1.1 (Theft, Property Destruction, and Fraud)
corresponding to that amount.
(2) If the offense involved a cultural heritage resource
from, or that, prior to the offense, was on, in, or in the
custody of (A) the national park system; (B) a National
Historic Landmark; (C) a national monument or national
memorial; (D) a national marine sanctuary; (E) a national
cemetery; (F) a museum; or (G) the World Heritage List,
increase by 2 levels.
(3) If the offense involved a cultural heritage resource
constituting (A) human remains; (B) a funerary object; (C)
cultural patrimony; (D) a sacred object; (E) cultural property;
(F) designated archaeological or ethnological material; or (G)
a pre-Columbian monumental or architectural sculpture or mural,
increase by 2 levels.
(4) If the offense was committed for pecuniary gain or
otherwise involved a commercial purpose increase by 2 levels.
(5) If the defendant engaged in a pattern of misconduct
involving cultural heritage resources, increase by 2 levels.
(6) If a dangerous weapon was brandished or its use was
threatened increase by 2 levels. If the resulting offense level
is less than level 14; increase to level 14.
(c) Cross Reference
(F) ``National park system'' has the meaning given that
term in 16 U.S.C. Sec. 1c(a).
(G) ``World Heritage List'' means the World Heritage List
maintained by the World Heritage Committee of the United
Nations Educational, Scientific, and Cultural Organization in
accordance with the Convention Concerning the Protection of the
World Cultural and Natural Heritage.
(4) Enhancement in Subsection (b)(3).--For purpose of
subsection (b)(3):
(A) ``Cultural patrimony'' has the meaning given that term
in 25 U.S.C. Sec. 3001(3)(D) see also 43 C.F.R. 10.2(d)(4).
(B) ``Cultural property'' has the meaning given the term in
19 U.S.C. Sec. 2601(6).
(C) ``Designate archaeological or ethnological material''
means archaeological or ethnological material described in 19
U.S.C. Sec. 2601(7) (see also 19 U.S.C. Sec. Sec. 2601(2) and
2604).
(D) ``Funerary object means an object that, as a part of
the death rite or ceremony or a culture, was placed
intentionally, at the time of death or later, with or near
human remains.
(E) ``Human remains'' (i) means the physical remains of the
body of a human; and (ii) does not include remains that
reasonably may be determined to have been freely disposed of or
naturally shed by the human from whose body the remains were
obtained, such as hair made into ropes or nets.
(F) ``Pre-Columbian monumental or architectural sculpture
or mural'' has the meaning given the term in 19 U.S.C.
Sec. 2095(3).
(G) ``Sacred object'' has the meaning given that term in 25
U.S.C. Sec. 3001(3)(C) (see also 43 C.F.R. Sec. 10.2(d)(3).
(5) Pecuniary Gain and Commercial Purpose Enhancement Under
Subsection (b)(4)
(A) ``For Precuniary Gain.--For purposes of subsection
(b)(4) ``for pecuniary gain'' means for receipt of, or in
anticipation of receipt of anything of value, whether monetary
or in goods or services. Therefore, offense committed for
precuniary gain include both monetary and barter transactions,
as well as activities designed to increase gross revenue.
(B) Commercial Purpose.--The acquisition of cultural
heritage resources for display to the public, whether for a fee
or donation and whether by an individual or an organization,
including a governmental entity, a private non-profit or
organization, or a private non-profit organization, shall be
considered to involve a ``commercial purpose'' for purposes of
subsection (b)(4).
6. Pattern of Misconduct Enhancement Under Subsection
(b)(5).--
(A) Definition.--For purposes of subsection (b)(5),
``pattern of misconduct involving cultural heritage
resources''; means two or more separate instances of offense
conduct involving a cultural heritage resource that did not
occur during the course of the offense (i.e., that did not
occur during the course of the instant offense of conviction
and all relevant conduct under Sec. 1B1.3 (Relevant Conduct).
Offense conduct involving a cultural heritage resource may be
considered for purposes of subsection (b)(5) regardless of
whether the defendant was convicted of that conduct.
(B) Computation of Criminal History Points.--A conviction
taken into account under subsection (b)(5) is not excluded from
consideration of whether that conviction receives criminal
history points pursuant to Chapter Four, Part A (Criminal
History).
7. Dangerous Weapons Enhancement Under Subsection (b)(6).--
For purposes of subsection (b)(6), ``brandished'' and
``dangerous weapon'' have the meaning given those terms in
Application Note 1 of the Commentary to Sec. 1B1.1 (Application
Instructions).
8. Multiple Counts.--For purposes of Chapter Three Part D
(Multiple Counts), multiples counts involving cultural heritage
offense covered by this guideline are grouped together under
subsection (d) of Sec. 3D1.2 (Groups of Closely Related
Counts). Multiple counts involving cultural heritage offenses
covered by this guideline and offenses covered by other
guidelines are not to be grouped under Sec. 3D1.2(d).
9. Upward Departure Provision.--There may be cases in which
the offense level determined under this guideline substantially
understates the seriousness of the offense. In such cases an
upward departure may be warranted. For example, an upward
departure may be warranted if (A) in addition to cultural
heritage resources, the offense involved theft of, damage to,
or destruction of, items that are not cultural heritage
resources (such as an offense involving the theft from a
national cemetery of lawnmowers and other administrative
property in addition to historic gravemarkers or other cultural
heritage resources); or (B) the offense involved cultural
heritage resource that has profound significance to cultural
identity (e.g., the Statue of Liberty, or the Liberty Bell).
Sec. 2Q2.1. OFFENSES INVOLVING FISH, WILDLIFE, AND PLANTS
* * * * * * *
(c) Cross Reference
(1) If the offense involved a cultural heritage resource,
apply Sec. 2B.5 (Theft of, Damage to, or Destruction of,
Cultural Heritage Resource; Unlawful Sale, Purchase, Exchange,
Transportation, or Receipt of Cultural Heritage Resources), if
the resulting offense level is greater than that determined
above.
* * * * * * *
Commentary
* * * * * * *
Application Notes:
* * * * * * *
6. For purposes of subsection (c)(1), ``cultural'' heritage
resource has the meaning given that term in Application Note 1.
of the Commentary to Sec. 2BI:5 (Theft of, Damage to, or
Destruction of Cultural Heritage Resources; Unlawful Sale;
Purchase, Exchange, Transportation or Receipt of Cultural
Heritage Resources).
* * * * * * *
Sec. D1.2 GROUPS OF CLOSELY RELATED COUNTS
(d) * * *
Offenses covered by the following guidelines are to be
grouped under this subsection:
Sec. Sec. 2B1.1, 2B1.4, 2B1.5, 2B4.1, 2B5.1, 2B6.1;
* * * * * * *
APPENDIX A--STATUTORY INDEX
16 U.S.C. Sec. 433 2B1.1
16 U.S.C. Sec. 470ee Sec. 2B1.5
16 U.S.C. Sec. 668(a) 2B1.5, 2Q2.1
16 U.S.C. Sec. 707(b) 2B1.5, 2Q2.1
* * * * * * *
18 U.S.C. Sec. 541 2B1.5, 2T3.1
18 U.S.C. Sec. 542 2B1.5, 2T3.1
18 U.S.C. Sec. 543 2B1.5, 2T3.1
18 U.S.C. Sec. 544 2B1.5, 2T3.1
18 U.S.C. Sec. 545 2B1.5, 2Q2.1. 2T3.1
18 U.S.C. Sec. 546 2B1.5
* * * * * * *
18 U.S.C. Sec. 641 2B1.1, 2B1.5
* * * * * * *
18 U.S.C. Sec. 661 2B1.1, 2B1.5
* * * * * * *
18 U.S.C. Sec. 662 2B1.1,2B1.5
* * * * * * *
18 U.S.C. Sec. 666(a)(1)(A) 2B1.1, 2B1.5
* * * * * * *
18 U.S.C. Sec. 668 2B1.12B1.5
* * * * * * *
18 U.S.C. Sec. 1152 2B1.5
18 U.S.C. Sec. 1153 2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A2.1,
2A2.2, 2A2.3, 2A3.1, 2A3.2, 2A3.3, 2A3.4, 2A4.1, 2B1.1, 2B1.5,
2B2.1, 2B3.1, 2K1.4
* * * * * * *
18 U.S.C. Sec. 1163 2B1.1, 2B1.5
* * * * * * *
18 U.S.C. Sec. 1170 2B1.5
* * * * * * *
18 U.S.C. Sec. 1361 2B1.1, 2B1.5
* * * * * * *
18 U.S.C. Sec. 2232 2B1.5, 2J1.2
* * * * * * *
18 U.S.C. Sec. 2314 2B1.1, 2B1.5
* * * * * * *
18 U.S.C. Sec. 2315 2B1.1, 2B1.5
* * * * * * *
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill S. 2598, as ordered reported, are shown as follows
(existing law proposed to be omitted is enclosed in brackets,
new matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
PUBLIC LAW 96-95
Section 1. This Act may be cited as the ``Archaeological
Resources Protection Act of 1979''.
* * * * * * *
Sec. 6. (a) * * *
* * * * * * *
(d) Any person who knowingly violates, or counsels,
procures, solicits, or employs any other person to violate, any
prohibition contained in subsection (a), (b), or (c) of this
section shall, upon conviction, be fined [not more than $10,000
or imprisoned not more than one year, or both: Provided,
however, That if the commercial or archaeological value of the
archaeological resources involved and the cost of restoration
and repair of such resources exceeds the sum of $500, such
person shall be fined not more than $20,000 or imprisoned not
more than two years, or both. In the case of a second or
subsequent such violation upon conviction such person shall be
fined not more than $100,000, or imprisoned not more than five
years, or both.] in accordance with title 18, United States
Code, or imprisoned not more than ten years or both; but if the
sum of the commercial and archaeological value of the
archaeological resources involved and the cost of restoration
and repair of such resources does not exceed $500, such person
shall be fined in accordance with title 18, United States Code,
or imprisoned not more than one year, or both
----------
18 U.S.C. 1163
Embezzlement and theft from Indian tribal organizations.
Whoever embezzles, steals, knowingly converts to his use or
the use of another, willfully misapplies, or willfully permits
to be misapplied, any of the moneys, funds, credits, goods,
assets, or other property belonging to any Indian tribal
organization or intrusted to the custody or care of any
officer, employee, or agent of an Indian tribal organization;
or
Whoever, knowing any such moneys, funds, credits, goods,
assets, or other property to have been so embezzled, stolen,
converted, misapplied or permitted to be misapplied, receives,
conceals, or retains the same with intent to convert it to his
use or the use of another----
Shall be fined under this title, or imprisoned not more
than [five years] 10 years or both; but if the value of such
property does not exceed the sum of $1,000 he shall be fined
under this title, or imprisoned not more than one year, or
both.
As used in this section, the term ``Indian tribal
organization'' means any tribe, band, or community of Indians
which is subject to the laws of the United States relating to
Indian affairs or any corporation, association, or group which
is organized under any of such laws.
----------
18 U.S.C. 1170
Illegal trafficking in Native American human remains and
cultural items.
(a) Whoever knowingly sells, purchases, uses for profit, or
transports for sale or profit, the human remains of a Native
American without the right of possession to those remains as
provided in the Native American Graves Protection and
Repatriation Act shall be fined in accordance with this title,
[or imprisoned not more than 12 months, or both, and in the
case of a second or subsequent violation, be fined in
accordance with this title, or imprisoned not more than 5
years] imprisoned not more than 10 years or both.
(b) Whoever knowingly sells, purchases, uses for profit, or
transports for sale or profit any Native American cultural
items obtained in violation of the Native American Grave
Protection and Repatriation Act shall be fined in accordance
with this title, [imprisoned not more than one year, or both,
and in the case of a second or subsequent violation, be fined
in accordance with this title, imprisoned not more than 5
years, or both] imprisoned not more than 10 years, or both; but
if the sum of the commercial and archaeological value of the
cultural items involved and the cost of restoration and repair
of such items does not exceed $500, such person shall be fined
in accordance with this title, imprisoned not more than one
year, or both.