Crimes Against Cultural Property

Half-Truths from a Self-Styled "Cultural Heritage Lawyer?"

http://culturalpropertyobserver.blogspot.com/2012/03/half-truths-from-self-styled-cultural.html

by Peter Tompa

Self-styled "Cultural Heritage Lawyer" and past SAFE VP/ New Hampshire State Prosecutor Rick St. Hilaire thinks that more people should go to jail for "crimes against cultural property." As evidence, St. Hilaire notes that while CBP reports some 2,500 artifacts have been seized and returned to their supposed countries of origin, actual criminal prosecutions are few. See http://culturalheritagelawyer.blogspot.com/2012/03/seize-and-send-v-investigate-and-indict.html

Yet, St. Hilaire is wrong to assume that any artifact seized by Customs "must be looted." Instead, as I noted in a comment to his blog that he has so far refused to publish:

"You might also note that much, if not most, of the material seized and returned is abandoned by the importer. You assume it is because it is looted; in actuality it may very well be because the litigation costs of fighting CBP greatly exceed the value of the artifact. As for the lack of prosecutions, that likely has to do with the fact that the Government cannot show criminal intent. Thankfully, that is still required despite efforts of archaeological fanatics to diminish this bedrock protection of American law."

And if anything, three knowledgeable practitioners confirmed at a DC Bar program I just attended, entitled "What Every Lawyer Needs to Know About Customs and Customs Law 2012," that CBP's modus operandi is all too often to seize all sorts of things for the slimmest of reasons (mostly for supposed "trade mark" or drug importation violations), confident in the knowledge that it is often not worth the trouble to fight to get them back.

This is a national disgrace that has much to do with CBP's change in focus from a "revenue collecting agency" under Treasury to a "national security agency" under Homeland Security.

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COMMENTARY

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It seems that Rick St. Hilaire believes that any US citizen importing artifacts which are seized by Customs, who does not decide to contest the seizure, should in addition to the confiscation of the artifacts, also face a criminal investigation.

As Tompa observes, there are many valid reasons for deciding not to contest such a seizure that do not indicate criminal conduct or criminal intent. In my opinion, very few ancient coin collectors or dealers would find it sensible to spend the time and money involved in contesting seizure of a coin shipment, unless it was very valuable.

This is getting perilously close to advocating a regulatory doctrine of "guilty until proven innocent." The actions of the Cultural Heritage Center are not law but regulatory decisions, and their decisions to restrict importation of ancient coins have been challenged in Federal Court. The case is presently sub judice.

It is difficult to understand how any lawyer could rationally contend that the importance of "innocent until proven guilty" does not vastly outweigh "protection of cultural heritage." If the latter effort involves totalitarian methods, it must be reformed so as to protect Constitutional rights.

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