crime&justice Austrian Drug Policy: Treatment First, Punishment Second I N T E R N A T I O N A L Maritime Piracy View from Sudan Polish Prison

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1 crime&justice January/February 2007 Volume 23 Number 96 Maritime Piracy View from Sudan Polish Prison I N T E R N A T I O N A L Worldwide News and Trends Austrian Drug Policy: Treatment First, Punishment Second

2 from the editor The first word that comes to mind as I look over some of the articles in this issue of Crime and Justice International is hope. In Chad Nilson s piece on Austrian drug policy, I find myself hoping that Austria has indeed found a way politically, socially, and economically to make treatment a priority when dealing with drug users and addicts. I would bet that many other countries of the world, like the United States, have an ever-growing inmate population in large part for activities related to drug use and trafficking. Exploring alternatives or at least supplements to current practices is not only necessary, it s imperative. The second moment of hope I see is that of lost hope. In Poland in the mid-1950s apparently there were some educators, prison officials, and politicians hopeful enough to experiment with the incarceration experience. The idea was to redesign their approach, to create a more humane environment in which to dispense punishment while still holding inmates responsible for their actions. This program lasted only a short time, in part having suffered from the vagaries of human nature, in part having succumbed to the bureaucratic pressure of high-ranking officials. Zbigniew Lasocik provides an overview of the prison experiment at Szczypiorno. The third moment of hope requires that the leaders of the Sudan, together with the United States and other leading countries of the world, see the plight of the hundreds of thousands of innocent people caught amidst warring factions and move to bring an end to the ongoing armed struggle and genocide in that African country. I m pleased to present an article by our old friend and colleague, Jess Maghan, on his recent trip to Sudan. Sitting in our relative comfort and safety, it s difficult to imagine the horrors of daily life for those caught in the middle. Jess provides a snapshot of the situation, encouraging us to use it as a platform from which to continue our self-education on the subject. At Sam Houston State University, undergraduate and graduate students in Criminal Justice have an opportunity to participate in a wide variety of internship programs. Placed in state, local, and federal agencies and organizations, our students experience the front lines of investigations and enforcement. Last year, graduate student Laura Ann Lindholm served in the FBI s Mortgage Fraud Squad in Houston. I thank her for her contribution on a subject we don t hear that much about. I m afraid we ll only be hearing more on this topic as it worsens in years to come. Perhaps our greatest hope resides in the ability to get our young people engaged in the pressing issues around us and involve them in the search for a solution. crime&justice I N T E R N A T I O N A L Crime & Justice International (ISSN ) is published bi-monthly by the Office of International Criminal Justice (OICJ) in cooperation with the Criminal Justice Center at Sam Houston State University. Subscriptions are $29 Individual or $59 Institutional for North America and $44 Individual or $89 Institutional for International. Address all communications to: Office of International Criminal Justice, PO Box 1819, Huntsville, Texas Advertising rates on request. Postmaster: send change of address to Office of International Criminal Justice, PO Box 1819, Huntsville, Texas Subscribers should allow eight weeks for change of address; all queries concerning subscription problems or other matters; and unsolicited manuscripts should be sent to the address above. (OICJ is not responsible for lost manuscripts or photos.) Back issues are available for $6 each. CJI is printed in the United States. Copyright 2006, OICJ. Permission is granted to copy and quote Crime & Justice International in connection with educational and training activities. All other rights reserved. Opinions expressed in this publication do not necessarily represent the views of the Office of International Criminal Justice or the editors. Editor-in-Chief Senior Editor Copy Editor Contributing Editors Terrorism Technology World in Brief Books Columnists Layout & Production Layout Consultant Joseph D. Serio jdserio@shsu.edu Jane Buckwalter Chris Fisher J.B. Hill James Phelps Virginia T. Wilson Brett Finn Gillian Dickenson Robert H. Stern David Webb Kathleen Kiernan Harriet Brewster Janine Serio Subscription Manager Shelia Gite This publication is available in microform from University Microfilms International. Call tollfree (800) In Michigan, Alaska and Hawaii, call collect (313) Or mail inquiry to University Microfilms International, 300 North Zeeb Road, Ann Arbor, MI COVER Located on the banks of the Salzach River at the northern boundary of the Alps, Salzburg is one of Europe s finest cities, both architecturally and scenically. The home town of Mozart and the Salzburg Festival, the Austrian city was also the location for some of the filming of The Sound of Music. 2 Crime & Justice International January/February 2007

3 editorial advisory board Prof. Dr. Hans-Jörg Albrecht Director Max Planck Institute for Foreign and International Criminal Law Freiburg, Germany Richard Allan, Esq. Professor of Law Brooklyn Law School Brooklyn, New York Dr. André Bossard Secretary General (ret.) ICPO-INTERPOL Paris, France Dr. Mark Galeotti Director Organised Russian & Eurasian Crime Research Unit Keele University Staffordshire, United Kingdom Dr. Alexander Gorkin Professor of Law (ret.) Russian National Police Academy Senior Investigator (ret.) Moscow City Police Denver, Colorado Francesc Guillen Secretariat for Public Security Department of Interior Barcelona, Spain Dr. Toni Makkai Director Australian Institute of Criminology Canberra, Australia Dr. Sean Malinowski Sergeant Los Angeles Police Department Los Angeles, California Jianming Mei Director International Research Center of Transnational Crime Zhejiang College of Public Security Hangzhou City, China Dr. Mamdooh Abdelhameed Professor, Police Sciences and Law Sharjah Police Government United Arab Emirates Dr. Changwon Pyo Associate Professor, Police Science Korean National Police University Seoul, South Korea crime&justice I N T E R N A T I O N A L Academic s Arena Treatment First, Punishment Second: The Health and Criminal Justice Consensus in Austrian Drug Policy 4 by Chad Nilson Contemporary Maritime Piracy 10 by Stephen Walters The Scope of Mortgage Fraud: A Growing International Problem 17 by Laura Ann Lindholm The Publisher s Pullout Homeland Security for Policing 23 by Willard M. Oliver Practitioner s World USAcademics - Sudan 27 by Jess Maghan Polish Prison Experiment in Szczypiorno 31 by Zbigniew Lasocik On Watch - The Webb File 34 Terrorism There s a Long, Long Road Awinding 38 by Robert H. Stern Technology Robots and Police Operations 39 by Virginia T. Wilson GPS Uses in Law Enforcement 40 by James Phelps World in Brief 42 World in Brief - In Focus Reform Measures Introduced 43 by James Phelps At a Glance - The Darfur Conflict 43 The Animal Liberation Front 45 by J.B. Hill Homeland Security Tracker 45 Books 46 Perspectives London Observations 47 by Richard Allan table of contents Crime & Justice International January/Februray

4 austria Treatment First, Punishment Second: The Health and Criminal Justice Consensus in Austrian Drug Policy by Chad Nilson Special to CJI The design of Austria s political system serves as a great comparison to that of North America s political systems. While Austria is similar to Canada in parliamentary design, it is also similar to the United States in terms of government decentralization. In contrast, however, Austria s corporatist political bargaining structure and proportional voting system serve to minimize some of the inefficiencies in policymaking that thwart criminal justice and health policy developments in Canada and the United States. The result is much more cooperation between the different bureaucrats and policymakers involved in drug policy. Ultimately, there is a consensus in Austria that drug policy should be focused on treatment first, punishment second. While this consensus is highly supported throughout Austria, it did not occur overnight. Long-term political changes gradually forced police and health officials to cooperate on the drug issue and arrive at a Austria Parliament, National Council Chamber consensus that is both effective and supportive of one another s organizational goals. One of these political changes was in the priorities of political factions. Like other European states, Austrian parties have become concerned more and more with social pressures to restructure the welfare state and curtail strong government intervention (Ulram, 1989). Consequently, Austria was caught in a dilemma of whether to provide society with protection from deviant drug users or provide drug users with services to minimize the harms their behavior causes to the health of themselves and society. So far, Austrian policymakers have managed to strike a cooperative balance among the various approaches to the drug problem. Chad Nilson is a PhD Candidate in Political Science at the University of New Orleans. While spending considerable time abroad, Chad has researched illegal drug policies in several democracies. He currently teaches comparative public policy at the University of Saskatchewan. Administering the Health and Justice Consensus Austria has no official drug strategy. Essentially there exists a collage of sub-national and local policies that are monitored and often financed by the federal government. As such, while Austria is a unitary country, the autonomy that its provinces enjoy make it behave like a federalist state (Pelinka, 1998). This de facto federalism allows for the sub-national and local governments to develop many criminal justice and public health programs that are aimed at dealing with the drug problem. Seven of the country s nine provinces have developed their own drug strategies. These strategies share many of the same principles. The first is that there must be a balance between the use of health tools aimed at reducing demand for drugs and law enforcement tools aimed at reducing the supply of drugs. The second is that drug use should not be legalized but decriminalized. Third, drug addiction should be acknowledged as a disease not an immoral life choice. Finally, because the aim of a drug-free society is unrealistic, measures should be taken to reduce the social and bodily harm caused by drug use (ÖBIG, 1999). Despite the autonomy of sub-national governments to develop drug policy, there are two points of control that the national government has over the lower-level governments. The first is that all drug law is federal, and while police officers are managed sub-nationally, their actions are ultimately accountable to the federal ministries of Interior and Justice. The second is that while prevention, treatment, and harm reduction programs fall under the responsibility of sub-national governments, the federal government via the National Drug Coordinator within the Ministry of Health sets firm limits on what sorts of programming can be provided to address the drug problem. In the early 1990s, a federal law was passed that created a formal office of drug policy. Led by an appointee from within the Ministry of Health, the National Drug Coordinator works with 4 Crime & Justice International January/February 2007

5 austria respondents from Justice and the Interior to monitor and develop Austrian drug policy. A significant part of this position is to chair the National Drug Forum, which is a body made of drug coordinators from each province, representatives from the four political parties, and bureaucrats from the federal ministries of Health, Justice, Interior, Education Science and Culture, Social Security Generations and Consumer Protection, Defense, Agriculture Forestry Environment and Water Management, Transport Innovation and Technology, Foreign Affairs, and Finance. The purpose of the National Drug Forum is to develop and share different initiatives within the law enforcement, prevention, treatment, and harm reduction framework. While the National Drug Forum serves as the federalist element of Austrian drug policy, the agenda of this group is largely controlled by the national drug coordinator. In administering and shaping the country s drug policies, the national drug forum is very critical of a law enforcement-only approach. Many of the members feel that the consequences of being arrested cause undesirable effects (job/family problems) that end up causing more harm to the drug user and their environment than just drug use alone. However, they, together with the National Drug Coordinator, recognize the utility and importance of police involvement in drug abuse. The result of this is an approach that depends upon a consensus of what is needed to effectively address the drug problem (Haas et al., 2005). Addressing the Drug Problem The drug problem in Austria is somewhat smaller than it is in other countries of Western Europe or North America. Of drug use and drug trafficking, Austria tends to be bothered moreso by trafficking. In fact, the U.S. Bureau of International Narcotics and Law Enforcement Affairs (2002) reports Austria to be a major transit point for drugs coming into Western Europe from the East. While it does have more trafficking problems than user problems, the mere presence of the former has led to more of the latter. The result has led to the development of four approaches to the drug problem in Austria: law enforcement, prevention, treatment, and harm reduction. On the criminal justice side of the spectrum, law enforcement agencies tend to focus their efforts more on drug traffickers and producers than on individual users. In fact, legislation passed in October of 2001 permanently lifted restraints on police powers to investigate and punish all drug traffickers but particularly those continued on page Austria Parliament, Federal Council Chamber Crime & Justice International January/Februray

6 austria continued from page involved in organized crime (Eisenbach-Stangl, 2003). Despite efforts to focus on drug traffickers, police officers in Austria do encounter drug users. Different than in other democracies, police officers in Austria are under a principle of legality that requires police officers to report and process all offenses they see or investigate including the smallest amounts of possession. The lack of discretion that police officers have, however, does not represent an end to alternative options for drug users. In place of officer discretion is a process where persons charged with possession or persons charged with other offences related to drug use are sent to the municipal health authority. There they must register themselves with a health officer and develop an action plan that suits their condition and that will take them off of drugs and away from crime. They are not charged with an offense, nor is there any lasting record of their involvement with drugs. If after two years they are not reported by the police to have had any other encounters with drugs, their file is destroyed. On the other hand, if a drug-dependent person is charged and convicted with a crime, they are sent to prison. During that time they undergo withdraw therapy. After one-half to two-thirds of the sentence, they can be released from prison if they agree to undergo long-term drug treatment outside of the prison. In both cases, drug addicts are allowed to pick any treatment facility and type of treatment they prefer. If they do not have the means to pay for this service, the federal government will provide the funding (Haas, et al., 2005). Unlike many countries that experience contention surrounding the use of law enforcement, it is in the field of prevention where Austrians actually experience some conflict. Several prevention programs supported by the Ministry of Education were created in the 1980s to teach children about the harms of drug use. These programs were informational and not designed to instill fear of drugs. After considerable pressure from harm reduction and education experts, these programs replaced the fear-driven programs of the 1970s that were designed to scare youth from getting involved with drugs in the first place (Fehervary, 1989). In the past ten years, however, some programming designed to scare rather than educate youth about drugs has begun to surface. While formal education and unbiased information sharing are still the dominant forms of prevention in Austria, there is some criticism coming from conservatives who favor the deterrent approach to drug prevention. In the area of treatment, another conflict has seemed to develop within Austria s drug policy community. In the 1970s, substitution treatment became the main method of drug treatment for some addicts. Inspired by similar programs in Switzerland and Germany, Austria s addictions experts lobbied to have the government provide morphine and methadone to hard-core opiate addicts. Stepping into a harm-reduction style of treatment, addictions services agencies came under fire for providing prescriptions of morphine and methadone to drug users who in turn sold their dosages on the street to buy heroin. While regulations are currently being developed to minimize the opportunities for patients to take their prescriptions into the general public, there is still considerable conflict over this type of treatment. Aside from substitution treatment, there are several other forms of treatment provided by local and provincial health authorities. A variety of in-patient and out-patient services are available, with both short-term and long-term commitments. Within many of the in-patient facilities, detoxification and withdrawal treatment help addicts break away from their addiction. Counseling, follow-up care, and support for both recovering addicts and their families are provided mainly by the out-patient facilities. A number of employment and social reintegration programs help former users create some stability in their lives and help them restore some of what they had lost to their illness. The most important component of the treatment services offered in Austria is flexibility. Since not all programs work for every addict, there is some flexibility, understanding, and patience for clients who relapse (Drugs-Coordination Office of Vienna, 1999). Turning to harm reduction, this method is the most decentralized of the approaches Austrians use to deal with substance abuse. As explained, the de facto federalism of the country has led to various harm reduction innovations throughout the country. Designed mainly as a tool of public health, harm reduction services are designed to minimize the harms associated with drug use. Such harms are infectious diseases caused by unclean needles, unsafe administration of drugs, stigmatization, criminalization, and victimization. Some of the harm reduction instruments found throughout Austria are needle-exchange programs, substitution treatment, on-site drug safety checks, low threshold treatment and education services, and mobile drug programs which are teams of social workers and nurses who visit areas of high drug use to provide syringes, condoms, food, and referral to drug treatment and harm reduction agencies (AC Company, 2004). A com- 6 Crime & Justice International January/February 2007

7 austria mon harm reduction device placed in many Austrian cities is the vending machine. At the cost of one Euro, customers can purchase a small box containing two syringes, a condom, an antiseptic wipe, filters, and vitamin C. While many may think the vitamin C is provided to boost the immune system, it is actually included in the packet as an agent to break down the drugs into a liquid so that users do not accidentally inject solid drug particles into their veins. One harm reduction innovation almost exclusive to Europe is the re-integration programming provided in only a few regions of Austria. Essentially, these programs aim at integrating drug users into the regular labor market by means of low threshold job opportunities. Primarily, clients in Austria are given work in postal services, screen printing, and renovation. Sources independent to Austria s harm reduction network report that the country s re-integration programs are quite successful at helping addicts overcome the barriers to the labour market that are caused by the client s addictions (International Harm Reduction Development Program, 2002). Perhaps one of the most comprehensive harm reduction associations offering these types of programs is in the capital city of Vienna. Translated as the Vienna Social Project Association, Verein Wiener Sozialprojekte provides a variety of lowthreshold services to the city s drug user population. While most of the projects the Association operates are funded exclusively by the city, some are partially funded by the federal government. The oldest component of the program is the Ganslwirt drop-in center. Located near a major shopping area of Vienna, Ganslwirt provides needle exchanges, recreational activities, food, refreshments, counseling services, treatment referrals, minor heath services, and acts as a nighttime emergency shelter for the city s addicts. All year round, Ganslwirt provides these services free of charge and without the requirement of health insurance. The second program provided by the Verein Wiener Sozialprojekte is Streetwork. Similar to Ganslwirt, it provides a needle exchange, condom distribution, treatment referrals, and counseling. The key function of this program is that it provides these services through a van. Being mobile allows certified social workers to visit different parts of the city where drug users either live or congregate. This exposes more addicts to the harm reduction tools that will minimize their risks and eventually introduce them to a healthier life style namely treatment. One of the most important programs offered by the association is the Betreutes Wohnen. This program provides supervised accommodations for persons with drug-related problems. The general conditions of the program are that a person be motivated, cooperative, in-need, have no un-served prison sentences, and be at least 18 years of age. The clients are provided with apartments for an initial period of three months. After this time, a contract is signed and renewed every six months for a total period of 2 years. The purpose of the program is to alleviate the user s stress of finding housing so that they can focus on the reintegration and treatment services they need to become a functioning drug-free member of society. The fourth program administered by the Vienna Social Project Association is Fix und Fertig. This socio-economic employment project is aimed at helping former addicts or those recovering addicts enrolled in a substitution program. It is designed to eliminate the handicaps most drug users experience when trying to find employment. By providing various employment experiences in the trades and services industry, recovering or former addicts can slowly learn how to become organized and responsible while also continued on page Austria Parliament Crime & Justice International January/Februray

8 austria continued from page earning some money. Programs such as Fix und Fertig have been very effective in reintegrating drug users and recovering addicts into society. Perhaps the best-known, yet controversial program offered in Vienna is the ChEckiT! program. The main objectives of this program are threefold. The first is to prevent users from ingesting drugs that are more dangerous than the user thought they would be. The second is to demonstrate to drug users that there are many hidden dangers in all forms of drug use. The third objective is to allow health scientists and police professionals to learn and document the types of drugs and their purity levels that are circulating throughout the region. ChEckiT! is aimed at those people who consume party drugs that come in the form of a pill. On an operational level, a booth or table will be set up near the entrance of a rave or party. Positioned at that booth are medical experts and chemists who perform tests on the substances provided to them by the party-goers. When a drug user approaches the booth, he or she swipes their pill on a small piece of sandpaper. The staff test that sample using portable equipment. While the testing is being complete, the outreach workers at the booth talk to the user about different alternatives he or she can consider for help with their substance abuse issues. The outreach worker also asks several informational questions to learn more about the user s drug history and patterns of behavior. These responses go towards helping health and police professionals better understand the drug situation in the community. Once the test is complete the client is told whether or not the drug was what he or she thought it was. If a test comes back showing that a drug was not what the buyer said it was, then an announcement is usually made on the venue s sound system informing other patrons that some bad drugs are circulating throughout the venue. More often than not, the announcements prevent drug users from ingesting pills that turned out to be a substance more dangerous than the actual drug the users were intending to ingest. The most important role in this process is that of the local police. The only way that drug users will confide in the ChEckiT! staff is if the police promise to refrain from searching or arresting any drug users within a certain radius of the party. The only time drugs are confiscated from the party-goers is if during the testing stage a staff member intentionally or accidentally touches the pill belonging to the user. Not retaining the drug after such an incident would be a violation of Austrian law on controlled substances. While many police and health professionals support ChEckiT!, there is considerable criticism of the program. Many say it is sending the wrong message to youth who may be interested in experimenting with party drugs. Currently, the program is subsidized by the city of Vienna. While the ChEckiT! program has been criminal justice center Sam Houston State University A Member of the Texas State University System Education Research Training Diversity College of Criminal Justice Law Enforcement Management Institute of Texas Correctional Management Institute of Texas Office of Law Enforcement Training Crime Victims Institute Texas Police Corps Criminal Justice Center Huntsville, TX (936) Crime & Justice International January/February 2007

9 austria tried in the province of Tirol, it largely maintains its operations in the city of Vienna. So far, the federal government has not taken any position in favor or against the program. The single acknowledgement of ChEckiT! by the federal government is in the permission statements of the Justice and Health Ministries. Each states that pill-testing is permitted so long as it is done within the framework of a scientific institution and that no staff member touches the arrangement has dominated its drug policy for thirty years. This arrangement treatment first, punishment second has pills without retaining them from the drug user. As such, the staff of ChEckiT! are employed by the Medical University of Vienna s Department of Toxicology (Fact File, 2006). Conclusions The balance of the criminal justice and health approach to the drug problem in Austria provides an important lesson to those who argue for one method over the other. Much of the literature and political rhetoric surrounding drug policy is caught up in the dispute between prohibition and harm reduction ideology. Through collective decision making and cooperation, the Austrians have developed an approach to the drug problem that protects the laws of society while also protecting drug users from the secondary harms of both their drug use and their country s drug laws. One problem of the Austrian drug situation is that while Austria strives to define the drug problem as a medical rather than crime issue, the implementation of policies that reflect this understanding are not provided equally. Most of the drug treatment services offered in Austria are only available for Austrians or foreigners with insurance coverage that will help offset the costs of such programming. Consequently, the low threshold services that operate anonymously and free of charge are bombarded with drug addicts from other regions of the country and areas of Europe. The result is a high number of people in need of care who are turned away because these centers do not have the capacity to treat all of them at the same time (AC Company, 2004). Nonetheless, Austria has managed to distribute its resources towards the drug problem in a very innovative way. Although no national drug strategy recognizes the need for a balance between the health and criminal justice venues, an informal Crime & Justice International January/Februray 2007 been maintained by the cooperative policy-making environment created by its political institutions. While not all democracies benefit from the same institutional structures that have fostered a consensus between health and justice officials in Austria, social scientists and government leaders in other countries should not be deterred from evaluating the utility of a treatment first, punishment second model of drug policy. Notes AC Company. (2004a). Summary of the Situation with Illegal Drugs and Focus on Vienna. Published by the European Network for the Target Group of Mobile Drug Users. Retrieved November 5, 2004 from www. ac-company.org. Drugs Coordination Office of Vienna (1999). The Vienna Drug Policy Programme, Vienna: Vienna City Administration. Eisenbach-Stangl, I. (2003). Drug Policy as Policy with Foreigners: the Austrian Case in Times of European Integration. In Contemporary Drug Problems, v.30, pp Fact File. (2006). ChEck it! Informational Sheet. Vienna: Verein Weiner Sozialprojekte. Fehervary, J.(1989). Drug Policy in Austria. In Albrecht, H. and van Kalmthout, A. (eds.). Drug Policies in Western Europe, pp Strafrecht, NL: Max Planck Institute. Haas, S. et al. (2005). Report on the Drug Situation, Commissioned by the European Monitoring Centre for Drugs and Drug Addiction. Vienna: Austrian Health Institute. International Harm Reduction Development Program.(2002). Harm Reduction in Austria. Retrieved November 5, 2004, from the Open Society Institute website: ÖBIG. (1999). Report on the Drug Situation in Austria, Vienna: Austrian Health Institute. Pelinka, A. (1998). Austria: Out of the Shadow of the Past. Boulder CO: Westview Press. Ulram, P. (1989). Changing Issues in the Austrian Party System. In Pelinka, A., and Plasser, F.(eds.) The Austrian Party System. Boulder, CO: Westview Press. U.S. Bureau of International Narcotics and Law Enforcement Affairs. (2002). International Narcotics Control Strategy Report. Washington, DC: U.S. Department of State. Retrieved July 12, 2002, from 9

10 piracy Contemporary Maritime Piracy by Stephen Walters Special to CJI Piracy brings to mind romantic images of a long-ago era of sailing ships, blazing cannons, and the skull and crossbones. Yet piracy on the high seas continues to this day. While recent attacks on cruise ships off the coast of Somalia have grabbed headlines, the truth is that maritime piracy has been endemic to many parts of the world for a very long time. From the Caribbean to South America, from Somalia to the Malacca Straits, piracy has become an alarmingly common and serious problem. According to the International Maritime Bureau (IMB), over 3,300 cases of piracy have occurred worldwide since The International Maritime Bureau is a division of the International Chamber of Commerce and operates the Piracy Reporting Center in Kuala Lumpur, Malaysia. The Center serves as a world-wide clearinghouse for international piracy data. According to the IMB, in the year 2004 alone there were 329 actual pirate attacks: 158 in Southeast Asia, 15 in the Far East, 32 in the Indian subcontinent, 45 in the Americas, 73 in Africa, and 6 in the rest of the world. Nine locations were responsible for more than twothirds of pirate attacks. These were the Gulf of Aden/Red Sea (2%), Nigeria (8.5%), India (4.5%), Bangladesh (5%), the South China Sea (2%), Malaysia (2.7%), the Singapore Straits (2%), the Malacca Straits (11.6%), and Indonesia (28.6%). These last two geographic locations are particularly problematic, generating over 40 percent of piracy attacks worldwide (International Maritime Bureau, 2005). The Law and Piracy Piracy is defined in several ways by differing groups. These definitions can be characterized as international, national, and sociological. International Law, both Article 15 of the 1958 Geneva Convention on the High Seas and Article 101 of the 1982 United Nations Convention on the Law of the Sea, define piracy as: 1. Any illegal acts of violence, terrorism, or any act of depravation committed for private ends by the crew or passengers of a private ship or private aircraft, and directed, a. on the high seas, against the ship or aircraft, or against persons or property on board such ship or aircraft; b. against a ship, aircraft, persons, or property in a place outside the jurisdiction of any State; Stephen Walters is Associate Professor of Criminology at the University of Houston-Clear Lake. He received his Ph.D. from the University of Montana. His previous research has appeared in numerous criminal justice journals. 2. Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; 3. Any act of inciting or intentionally facilitating an act described in Paragraph 1 above or Subparagraph 2 of this article (Gottschalk & Flanagan, 2000: 32; International Maritime Bureau, 2005: 3) These acts have been recently modified to cover actual or attempted attacks whether the ship is berthed, at anchor, or at sea (International Maritime Bureau, 2005: 3). National law defines piracy in a slightly different manner. For example, U.S. Law defines piracy as: 1. Any act of piracy as defined by international law if the perpetrators are found in the United States. 2. Any act of murder, robbery, or hostility against the United States or against a United States citizen on the high seas, by a citizen of the United States. 3. Acts by aliens against the United States or its citizens that are defined as piracy in the treaty between the nation that the individual is a citizen of and the United States (Gottschalk & Flanagan, 2000: 34). Close reading of both international and national law reveals an interesting and somewhat intellectually confusing predicament: the political offenses exception to most piracy laws (Ignarski, 1986; Gottschalk & Flanagan, 2000). According to this exception, the act must be initiated for private ends, such as personal profit, in order to be classified as piracy. Thus politically motivated piracy, such as the events involving the Achille Lauro (terrorism) and the Santa Maria (political protest), are not considered piracy under these statutes. In an attempt to close some of the loopholes in international and national law, the International Maritime Bureau has developed the following sociological definition for statistical purposes: Any act of boarding or attempting to board any ship with the apparent intent to commit theft or any other crime and with the apparent intent or capability to use force in the furtherance of that act (International Maritime Bureau, 2005: 3). This definition jettisons the two-ship requirement, the high seas requirement, and the political offenses exception (Johnson, Pladdet, & Valencia, 2005). It is this last definition, although lacking a legal basis, that this research will utilize in examining piracy. 10 Crime & Justice International January/February 2007

11 piracy Other Requirements Several sociological and economic factors are necessary if individuals are going to engage in piracy. Gottschalk & Flanagan (2000) observe that as in any other criminal activity, there must be adequate rewards available to those who run the risks of piracy. That is, target ships must carry enough valuable cargo to make the act worthwhile for the pirate. Given the fact that many involved in the piracy business are terribly poor to begin with, almost any ship will fulfill this requirement. In addition, the physical environment must be conducive to piracy. Most piracy occurs in places with a very low risk of apprehension, with physical isolation and/or weak law enforcement. Further, safe havens are useful places where pirates can replenish their stores, effect repairs, or simply hide from the authorities. For these reasons it is easy to see why modern piracy tends to be most common in isolated parts of the developing world. These requirements closely approximate the tenets of Routine Activities Theory, an approach to studying piracy successfully employed by Worrall (2000). Rainbow Warrior Who, Where, and How Organizationally, modern piracy is conducted by a variety of groups. Most piracy is probably engaged in by individuals or groups acting alone. The modern world is full of coastal dwelling, sea-knowledgeable, poverty-stricken individuals who find piracy a viable career option. These individuals generally engage in low-level piracy, stealing equipment, money, or anything of value from a ship (Mukundan, 1986). Organized crime syndicates are also busily engaged in the business of piracy. Southeast Asia and South America seem particularly prone to this type of piracy (Gottschalk & Flanagan, 2000). Additionally, lost commands are responsible for some piracy. Lost commands are military units that are either formally or informally encouraged by their governments to engage in piracy (Burnett, 2003). It is reported that the Somali Coast Guard and the Chinese navy have both boarded and seized ships, stealing cargoes, and demanding ransom for their crews (Gottschalk & Flanagan, 2000). The Indonesian navy has also been engaged in piracy in the Malacca Straits (Burnett, 2003). Perhaps the most bizarre example of this type of piracy is the case of the Greenpeace ship, Rainbow Warrior, which was blown up and sunk in a New Zealand port by agents of French intelligence (Schiller, 1986). While popular images of piracy have it occurring on the high seas, data shows this not to be the case. By far, most pirate attacks in 2004 occurred while ships were at anchor (50.2%). Ships steaming accounted for 26.1% of these attacks, while 10% occurred while the ship was berthed (International Maritime Bureau, 2005). Several authors (Mazzone, 1986; Stav, 1986; Havens, 1986) have examined why this is so. The primary reason ships at anchor are most commonly targeted is that they are the most vulnerable group. Ships that are berthed, on the other hand, are tied up at dock. Many times (although certainly not always) these docks are in port, lighted, patrolled, and secure. Ships here are among one another, not separated by water. Thus these ships simply provide a more difficult target than does an anchored ship. Similarly, steaming ships are also difficult to attack. Their speed alone makes it impossible for some to be caught, and boarding a ship that is moving over rough water can also be a daunting task. A steaming ship can also be maneuvered, and having a large ship change direction directly toward a small pirate boat is likely an unnerving experience. Anchored ships are stationary targets, unable to move or maneuver. Due to the nature of the anchoring process, these ships are many times separated from one another by a significant distance. Additionally, these ships have at least one anchor line running directly from the water to the deck, providing an easy way for pirates to board even the largest of ships. Isolated and vulnerable, anchored ships make tempting targets. Regional preferences seem to exist in deciding where to attack a victim ship. Analyzing the IMB s 2004 data, patterns are apparent. In Far/Southeast Asia, pirates appear to prefer to attack while their victims are steaming, rather than either anchored or at berth. On the other hand, pirates in the Americas prefer stationary ships to those making speed, as do, to a lesser extent, pirates in Africa (p <.01). This data is presented in Table 1. continued on page 12 Crime & Justice International January/Februray

12 piracy continued from page 11 Table 1: Actual Pirate Attacks by Region 2004 Berthed Anchored Steaming Far/Southeast Asia Indian Subcontinent Americas Africa n = 235, df = 6, x 2 = , p <.01. Modern pirates are extremely eclectic in their choice of targeted ships. The International Maritime Bureau (2005) reports 17 different categories of pirated ships, ranging from large crude oil carriers to personal yachts. The most commonly targeted ships in 2004 were bulk carriers (n=17, 22%), container ships (n=48, 14.5%), general cargo ships (n=38, 11.6%), fishing trawlers (n=18, 5.5%), chemical products tankers (n=56, 17%), crude oil tankers (n=17, 5.2%), and tugs (n=24, 7.3%). Most have obvious economical value, and none has any real defenses against pirate attacks. The financial losses that have resulted from these predations are significant. Gottschalk & Flanagan (2000) report that the economic consequences of piracy are increasing, from an estimated $6,325,000 in 1991 to an estimated $72,687,000 in Southeast Asia suffers the most economically, losing an estimated $36,000,000 to piracy, while the costs in the Far East and the Americas were lowest. While these numbers are high, as a proportion of shipping expenses they are not overwhelming. These predations cost shippers 4.3 cents per $10,000 shipped in 1991; by 1997, this figure had jumped to 32 cents per $10,000 shipped. This calculates to.0004 of all commerce in 1991 and.0032 of all commerce in This relative low cost of piracy may be one of the reasons that it appears to be an underreported phenomenon (Burnett, 2003). The human costs of piracy are a different matter. It is relatively easy to put a price tag on cargo but much more difficult to assess the human damage that results from being assaulted, kidnapped, or killed by pirates. From , 334 persons had been killed in pirate attacks, 152 were reported missing, 2,791 had been taken hostage and/or held for ransom, and hundreds had been threatened, assaulted, or injured (International Maritime Bureau, 2005). An analysis of the IMB s 2004 data reveals that the risks for particular crimes vary by geographical area, with threats/assaults/injuries most likely to occur in Far/Southeast Asia, and hostage taking/kidnapping more prevalent in the Indian subcontinent area (p <.001). This data is presented in Table Crime & Justice International January/February 2007

13 piracy TABLE 2: Type of Victimization by Region 2004 Threatened Assaulted Injured Hostage/ Kidnapping Killed/ Missing Far/Southeast Asia Indian Subcontinent Americas Africa n = 399, df = 6, x 2 = , p <.001. The weaponry employed by pirates, although in some cases formidable, generally appears to be low-tech, with guns and knives being the common weapons of choice. The use of weaponry has increased from 103 incidents in 1993 to 329 in In fact, piracy without weapons of some sort doesn t appear to exist. In 2004, 89 cases of piracy involved guns (27%), 95 employed knives (29%), 15 used other weapons (5%), and in 130 cases (40%) the weapon was not specified (International Maritime Bureau, 2005). Again, regional variations in the 2004 IMB data can be found, with guns being the weapon of choice in Far/Southeast Asia, and knives and other weapons being more popular in other regions (p <.001). This data is presented in Table 3. TABLE 3: Weapons Utilized by Region 2004 Guns Knives/Other Far/Southeast Asia Indian Subcontinent 2 19 Americas 7 12 Africa n = 195, df = 3, x 2 = , p <.001. Piracy Typology From the previous discussion it appears that the major motivation of pirates is economic. Indeed, if one uses the definitions of both national and international law, this is the only type of piracy that can occur. However, if we broaden the definition of piracy to the more sociological one developed by the International Maritime Bureau, another motivation for piracy emerges political piracy. By synthesizing prior research on piracy (Worrall, 2000; Valencia, 2005; Ong, 2005), and understanding how piracy relates to both the motivation of the pirates and the form that motivation takes, it becomes possible to generate a basic typology of piracy. Economic Motivated Piracy is intended to benefit financially either individual or organized groups of pirates. The monetary enrichment of the pirates is the primary goal. Ships of all types, from pleasure craft to container ships, are virtual floating shopping malls to modern pirates. This type of piracy can take several forms. The shipboard burglary is an extremely common form of economic piracy. Pirates in this type of attack utilize stealth as opposed to conflict. Pirates sneak aboard, looking for anything of value that they can steal such as electronic equipment, paint, lines, tools, money, crew belongings in short anything that might have either economic or practical utility for the pirate. When discovered, these pirates will generally flee the scene (Valencia, 2005). Both Gottschalk & Flanagan (2000) and Mukundan (2005) have referred to this type of attack as a mugging, and noted that recently these types of attacks have evolved into a more violent form. The shipboard robbery is similar to the shipboard burglary, but adds to it the concept of force. Pirates either physically threaten or harm crew members to maximize their take. This type of attack can vary from a small-scale activity to an extremely involved criminal operation. Financial costs have ranged from the low-value losses common to burglaries, to the loss of entire containers of cargo, to the off-loading of bulk or petroleum products onto pirate craft (Valencia, 2005). At its grandest scale, piracy may involve stealing the entire ship and its cargo, termed a hijacking by some researchers (Mukundan, 2005; Gottschalk & Flanagan, 2000). This activity is the most dangerous to the crew and other ships. In a hijacking, the ship (and perhaps crew) is taken to a secure location where the pirated ship can be unloaded (either to another ship or to shore), then either abandoned at sea or sunk (Valencia, 2005). In other cases, the ship may be repainted and disguised, sold to new owners, or simply be used by the pirates as a commercial vessel, becoming what has come to be termed a ghost ship (Burnett, 2003). A final form of Economic Motivated Piracy involves ransom and hostage-taking. This may be either an intentional act of hostage-taking for profit, or may be a simple by-product of hijacking entire ships and their required operational crew. In either case, pirates have attempted to obtain ransoms from various shipping entities (Gottschalk & Flanagan, 2000). Politically Motivated Piracy has as its motivation the achievement of some political goals through the use of piracy. This type of piracy has become of increasing concern as a possible tactic for terrorists (Ong, 2005). Like Economic Motivated Piracy, Politically Motivated Piracy can also take several forms. First, piracy can be used to make a political statement. For example, in 1961 the Portuguese cruise ship Santa Maria was seized by a political group as a statement in support of a planned insurrection in Portugal. Originally thought to be the victim of terrorists, ships which had been sent in search of the Santa Maria were recalled when the political motivation for the seizure became apparent (Gottschalk & Flanagan, 2000). Piracy can be used effectively damage to materially one s political enemies. The terrorist attack on the U.S.S. Cole in 2000 continued on page 15 Crime & Justice International January/Februray

14 Criminology Journals from Routledge Contemporary Justice Review Issues in Criminal, Social, and Restorative Justice Editor-in-Chief: Dennis Sullivan, Institute for Economic and Restorative Justice, USA Volume 10, 2007, 4 issues per year Print ISSN Online ISSN Global Crime Managing Editor: Mark Galeotti, Keele University, UK Volume 8, 2007, 4 issues per year Print ISSN Online ISSN Justice Quarterly Increasing in Pages in 2007! Published on behalf of the Academy of Criminal Justice Sciences (ACJS) Ranked 7th in the Criminology & Penology category with a 2005 Impact Factor of 1.033* *Copyright: Journal Citation Reports, Thompson Scientific, Editor: Chester Britt, Northeastern University, USA Volume 24, 2007, 4 issues per year Print ISSN Online ISSN Policing & Society An International Journal of Research and Policy Increasing in pages in 2007! Editor: Martin Innes, University of Surrey, UK Volume 17, issues per year Print ISSN ; Online ISSN Criminal Justice Studies A Critical Journal of Crime, Law and Society Editor: Roslyn Muraskin, Long Island University, USA Volume 20, 2007, 4 issues per year Print ISSN X Online ISSN Journal of Criminal Justice Education Increasing in Frequency in 2007! Published on behalf of the Academy of Criminal Justice Sciences (ACJS) Editor: J. Mitchell Miller, University of Texas, USA Volume 18, 2007, 3 issues per year Print ISSN Online ISSN Police Practice and Research An International Journal Editor: Dilip K. Das, Grambling State University, USA Volume 8, issues per year Print ISSN Online ISSN X View online sample issues at: onlinesamples.asp For further information, please contact Customer Services at either: T&F Informa UK Ltd, Sheepen Place, Colchester, Essex, CO3 3LP, UK Tel: Fax: tf.enquiries@tfinforma.com.Website: Taylor & Francis Inc, 325 Chestnut Street, 8th Floor, Philadelphia, PA 19106, USA Tel: (toll-free calls from within the US) or (calls from overseas) Fax: customerservices@taylorandfrancis.com.Website: When ordering, please quote: XE03701A

15 piracy continued from page 13 put the ship out of commission and took 17 American lives with little loss to the terrorists (Langewieche, 2004; Ong, 2005; Burnett, 2003). A similar attack took place two years later against the French supertanker, Limburg, causing serious damage, the death of a crewman, and a rapid rise in insurance rates (Burnett, 2003). These types of suicide attacks could be disastrous against merchant ships in busy, congested shipping lanes. Ong (2005) details several more forms of political/terrorist piracy. The hijacking of ships can be useful in several ways. A hijacked vessel, for example, can be used as, or made into, a very effective weapon for a subsequent attack. A bulk carrier filled with fertilizer, or a petroleum tanker loaded with flammable and explosive product, could make a formidable weapon. Utilizing piracy as a means to USS Cole damage and cruise ship Santa Maria (top right) seek ransom, thus either obtaining funds or trading hostages for political comrades held by sovereign nations, is also feasible. The ill-fated Achille Lauro affair in 1985 was one such example. Members of the Palestine Liberation Organization (PLO) seized the ship with the goal of obtaining the release of 50 of their incarcerated fellow terrorists. The attempt was unsuccessful and an American citizen lost his life (Gottschalk & Flanagan, 2000). A hijacked ghost ship can be very useful to terrorists. A stolen, repainted, and disguised ship can be effectively utilized to smuggle weapons, explosives, and personnel around the world Crime & Justice International January/Februray 2007 anonymously and with minimal interference from the authorities. Lastly, Ong (2005) notes a final form of Politically Motivated Piracy is piracy as an act of piracy. By this it is meant that piracy can be an effective tool for acquiring material, weapons, and revenue with which individuals and/or groups can pursue their political agendas. Rebel groups have already employed this type of piracy in the Malacca Straits. Apparently terrorist groups have noticed the importance of having a maritime ability to further their ends. Langewiesche (2004) reports that al-qaeda owns or controls perhaps 20 old freighters (although not necessarily pirated) to assist in its world-wide operations. Responses Perhaps because of the previously mentioned low level of financial loss incurred by shippers to pirates, the industry has been slow in reacting to the problem. Generally, four categories of responses to piracy can be observed: doing nothing; pay for protection; passive deterrence; and armed response. Many times ships captains choose, or are directed, to simply acquiesce to pirate demands. Individually, financial losses from most attacks are relatively small (Gottschalk & Flanagan, 2000), and some consider the most cost-effective response is to get the attack over with as soon as possible and get back underway. A variation on doing nothing is referred to as the citadel response (Burnett, 2003). This practice requires all crew to lock themselves into any secure area of the ship, commonly their cabins. Pirates are allowed to run amuck throughout the ship while the crew hides. If found, crew members are to comply with the pirates demands. As any delay in the shipping business is expensive, doing nothing in response to an attack makes economic sense to some. Rather than doing nothing in response to a pirate attack, some are rumored to have chosen to pay for protection, that is, pay the pirates tribute to be left alone. This type of maritime extortion again may be seen as a cost-effective response to piracy (Burnett, 2003). Another option utilized by many ships captains could be termed passive deterrence. These techniques vary from simple to complex. At the simple end, pleasure boaters have been known continued on page 16 15

16 piracy continued from page 15 to scatter tacks on the decks of their boats. This is supposed to dissuade boarders who are presumably bare-footed (Burnett, 2003). At the other extreme, a cruise ship attacked recently off the Somali coast supposedly used an ultra-sound weapon, a non-lethal weapon developed by the American government, to drive off attackers (CNN, 2005). More commonly, ships captains will generally rely on activities such as reading piracy reports, maintaining a certain speed, keeping radar on, posting look-outs, keeping the ship well lit, utilizing dummies as look outs if crew are not available, and keeping fire hoses available for use to repel boarding pirates (Mazzone, 1986; Burnett, 2003). If these actions fail, the crew then generally withdraws to the citadel or surrenders. A final alternative is the armed response. Small craft captains debate the efficacy and legality of arming themselves, and many have chosen to do so. Captains of large ships rarely carry light weapons (pistols, rifles), while both Israeli and Russian ships are rumored to be armed with heavy weapons. Other ships hire heavies well-armed, well-trained private security forces to protect themselves while traveling through dangerous waters (Burnett, 2003). While arming ships appears a reasonable response, the practice does have some legal consequences under international law (Ignarski, 1986). It is also important to be better armed, and better trained, than the pirates. Conclusion Currently two major concerns have surfaced concerning the piracy threat. These concerns are: 1) the problems that could result from a piracy attack in congested shipping lanes and 2) the damage that could be done by a ship pirated by terrorists and used as a weapon. Most access to major ports is through narrow shipping channels. These channels are crowded with large ships that are neither maneuverable nor easy to stop. Further, many shipping lanes around the world narrow into very restricted waters, little better than shipping channels. Many are concerned that a ship could lose steerage in one of these areas during a piracy attack. With a bridge crew disabled or killed, a large ship could easy run aground or collide with other ships, causing catastrophic damage and causing costly delays in shipping. Another concern is that a pirated ship could be a major weapon in the hands of terrorists. A terrorist-pirated ship could move a weapon of mass destruction into one of the world s major ports, where it could then be detonated. Alternatively, the ship and its cargo together could be used as a weapon of mass destruction. Large petroleum or petrochemical tankers can cause tremendous damage when their cargos explode, and the resulting loss of life, along with the financial costs, would be appalling. One of the world s oldest professions, piracy continues to flourish today. Whether in its traditional form or in the new guise of terrorism, piracy will continue to be an international problem for the foreseeable future. Notes Burnett, J Dangerous Waters: Modern Piracy and Terror on the High Seas. New York: Plume. CNN Cruise Liner Fends Off Attack. (Online) Available from www. cnn.com/2005/world/africa/11/05/somalia.pirates/index.html. Accessed 11/05/2005. Gottschalk, J. and Flanagan, B Jolly Roger with an Uzi: The Rise and Threat of Modern Piracy. Annapolis, MD: Naval Institute Press. Havens, G Proactive Measures to Protect a Seaport. pp in Brian Parritt (ed). Violence at Sea: A Review of Terrorism, Acts of War and Piracy, and Countermeasures to Prevent Terrorism. Paris: ICC Publishing SA. Ignarski, J Terrorism in a Maritime Context: Law, Insurance and Legal Implications of Armed Merchant Ships. pp in Brian Parritt (ed). Violence at Sea: A Review of Terrorism, Acts of War and Piracy, and Countermeasures to Prevent Terrorism. Paris: ICC Publishing SA. International Maritime Bureau Piracy and Armed Robbery Against Ships. Barking, UK: International Chamber of Commerce International Maritime Bureau. Johnson, D., Pladdet, E. and Valencia, M Introduction: Research on Southeast Asian Policy. pp. ix-xx in Derek Johnson, Erika Pladdet, and Mark Valencia (eds). Piracy in Southeast Asia: Status, Issues, and Responses. Singapore: Institute of Southeast Asian Studies. Langewiesche, W The Outlaw Sea: A World of Freedom, Chaos, and Crime. New York: North Point Press. Mazzone, F Prevention of a Terrorist Attack of a Ship While at Port or Sea. pp in Brian Parritt (ed). Violence at Sea: A Review of Terrorism, Acts of War and Piracy, and Countermeasures to Prevent Terrorism. Paris: ICC Publishing SA. Mukundan, P The Scourge of Piracy in Southeast Asia. pp in Derek Johnson, Erika Pladdet, and Mark Valencia (eds). Piracy in Southeast Asia: Status, Issues, and Responses. Singapore: Institute of Southeast Asian Studies. Ong, G Ships can be Dangerous, Too: Coupling Piracy with Terrorism in Southeast Asia s Maritime Security Network. pp in Derek Johnson, Erika Pladdet, and Mark Valencia (eds). Piracy in Southeast Asia: Status, Issues, and Responses. Singapore: Institute of Southeast Asian Studies. Schiller, T Maritime Terrorism: The Threat. pp in Brian Parritt (ed). Violence at Sea: A Review of Terrorism, Acts of War and Piracy, and Countermeasures to Prevent Terrorism. Paris: ICC Publishing SA. Stav, C Practical Measures to be Taken by Ports and Ships Crews to Prevent an Attack and to Minimize the Risk When an Attack Occurs. pp in Brian Parritt (ed). Violence at Sea: A Review of Terrorism, Acts of War and Piracy, and Countermeasures to Prevent Terrorism. Paris: ICC Publishing SA. Valencia, M Piracy and Terrorism in Southeast Asia: Similarities, Differences, and Their Implications. pp in Derek Johnson, Erika Pladdet, and Mark Valencia (eds). Piracy in Southeast Asia: Status, Issues, and Responses. Singapore: Institute of Southeast Asian Studies. Worrall, J The Routine Activities of Maritime Piracy. Security Journal 13: Crime & Justice International January/February 2007

17 fraud The Scope of Mortgage Fraud: A Growing International Problem by Laura Ann Lindholm Special to CJI Mortgage fraud is a problem which forces costs on everyone, on homeowners, who must indirectly pay for the increased costs that fraud imposes; on neighborhoods, afflicted by fraud; and on taxpayers, who must shoulder the cost of combating it (Sandler et al., 2006). It is a growing international concern, affecting millions of people worldwide. This article presents broad definitions of mortgage fraud, common schemes used by industry insiders, and examples of mortgage fraud from around the world. These examples by no means encompass the entire spectrum of mortgage fraud; rather, they are cases to demonstrate the pervasiveness of mortgage fraud in international markets. Types of Mortgage Fraud Mortgage fraud falls into two categories, fraud for profit and fraud for housing (FBI, May 2005, Mortgage Fraud: General Overview), although the American Banking Association Banking Journal (ABABJ) added a category: fraud for other criminal activities. According to the ABABJ, fraud for other criminal activities involves the perpetrator s use of illegally obtained funds in real estate transactions, such as a terrorist who may buy a safe house (Sandler et al., 2006). The Federal Bureau of Investigation (FBI) investigates two categories of mortgage fraud: fraud for profit and fraud for housing. Fraud for profit, also known as industry insider fraud, involves a perpetrator whose motive is to revolve equity, falsely inflates the value of the property, or issues loans based on fictitious properties (FBI, 2005). Approximately 80 percent of reported fraud losses involve collaboration or collusion by industry insiders (FBI, 2005). Fraud for housing, on the other hand, represents illegal actions perpetrated solely by the borrower (FBI, 2005). In these cases, the borrower makes misrepresentations and false statements Laura Ann Lindholm is currently working on her Master of Arts in Criminal Justice and Criminology at the College of Criminal Justice at Sam Houston State University. She worked as an intern with the Mortgage Fraud Squad at the Houston Division of the Federal Bureau of Investigation. Crime & Justice International January/Februray 2007 regarding his or her income or employment history; the borrower has a personal vested interest in acquiring the house and does not seek to defraud lenders for profit. The practice of defrauding lenders should not be equated with predatory lending, which forces borrowers to pay exorbitant loan origination/settlement fees, sub-prime or higher interest rates, and in some cases, unreasonable service fees (FBI, 2005). Predatory lending schemes usually involve senior citizens, lower income and challenged credit borrowers (FBI, 2005). Common Schemes Common mortgage fraud schemes include: property flipping, silent second, straw buyers, stolen identity, inflated appraisals, foreclosure schemes, equity skimming, and air loans. Property flipping occurs when property is purchased, falsely appraised at a higher value, and then quickly sold using fraudulent appraisal information (FBI, 2005). Kickbacks to accomplices are common in this scheme; accomplices include investors, buyers, property/loan brokers, appraisers, title company employees (FBI, 2005). Silent seconds refer to a non-disclosed second mortgage which is used to pay the down payment on a property. However, the primary lender thinks the borrower has invested his own money in the down payment when, in fact, it is borrowed (FBI, 2005). Straw buyers, also called straw borrowers or nominee loans, conceal the identity of the borrower and this allows the continued on page 18 17

18 fraud continued from page 17 borrower to use the nominee s name and credit history to apply for a loan (FBI, 2005). Fictitious identity is another scheme in mortgage fraud in which the perpetrator uses a fictitious or stolen identity on the loan application. In inflated appraisals, an appraiser acts in collusion with a borrower and provides a misleading appraisal report to the lender which inaccurately states an inflated property value (FBI, 2005). Foreclosure schemes involve perpetrators who identify homeowners whose houses are already in foreclosure or who are at risk of defaulting on loans. Perpetrators then mislead the homeowners into believing that they can save their homes in exchange for a transfer of the deed and up-front fees (FBI, 2005). Equity skimming includes a variety of frauds, such as the use of a straw buyer or false income documentation, to obtain a mortgage loan in the straw buyer s name subsequent to closing, the straw buyer signs the property over to the investor in a quit claim deed which relinquishes all rights to the property and provides no guaranty to title (FBI, 2005). The investor discontinues mortgage payments and rents the property until foreclosure occurs months later. Finally, an air loan is defined by the FBI as a non-existent property loan where there is usually no collateral (FBI, 2005). One example presented in the Financial Crimes Report to the Public is when a broker invents borrowers and properties, establishes accounts for payments, and maintains custodial accounts for escrows (FBI, 2005). Mortgage Fraud on the Rise For the past four years, mortgage rates have been at an all-time low, prompting many individuals to enter the mortgage industry. However, due to recently increasing rates, many of these lenders have turned to unethical methods of financing, promising below-market rates and rock-bottom deals. Insiders comprise the majority of mortgage fraud offenders. Lenders have literally made it easier to lie and get away with it by letting people borrow money without showing bank statements, pay stubs or tax returns that would indicate whether the borrowers would be in a good position to pay back the loan (Patterson, 2006). While lenders claim noble motives, to help self-employed and retired individuals whose income and assets were more difficult to determine, dishonest industry insiders have taken advantage of weaknesses in the mortgage industry process in order to make a quick dollar. As FBI Agent Chris Swecker testified to Congress, Mortgage fraud in the secondary market is often under-reported. Therefore, the true level of fraud is largely unknown. Each fraud case contains some type of material misstatement, misrepresentation or omission relied on by an underwriter or lender to fund, purchase or insure the loan (Spiegel, 2006). Mortgage Fraud in the United States Federal authorities recently arrested Rebecca Hauck, the Bonnie to Matthew Cox s Clyde of mortgage fraud. Matthew Cox can accurately be termed one of the U.S. mortgage industry s worst nightmares. Cox and his girlfriend, Rebecca Hauck, defrauded at least 10 different lenders using nearly a dozen stolen identities (Foust and Grow, 2005). The co-conspirators began their fraud scheme in Florida, moved on to Atlanta and then South Carolina. Authorities in each state caught on to their schemes but both individuals managed to evade law enforcement agencies, at least for a time in the case of one of them (Hauck). The couple forged deeds of satisfaction to convince banks that they had paid off loans for and thus owned homes that, in fact, they were renting from the true owners (Foust and Grow, 2005). Interestingly, Cox s arrogance reached such proportions that he began to write a semi-autobiographical novel titled, The Associates. According to Foust and Grow, the novel is little more than a barely fictionalized account of his escapades (2005). Hauck seems to be cooperating with investigators who are still searching for Cox. Rumors are circulating that he is hiding out in Florida, where he and Hauck first met through an online dating service (Cowan, 2006). Mortgage fraud has also been used to fund other criminal activities. In 2004, the FBI indicted two men in Detroit who used mortgage fraud, along with a variety of schemes, to secure more than $200,000 to buy military equipment for Hezbollah, a Lebanese terrorist organization (Pfotenhauer, 2006). Mortgage fraud helped a Chicago drug-dealing gang fund its other criminal activities, drug-dealing, smuggling and prostitution (Pfotenhauer, 2006). One reason that mortgage fraud has increased in recent years is the simple fact that lenders, to cut costs, have outsourced the origination of most mortgages to independent mortgage brokers, who now initiate more than two-thirds of all home loans meaning that banks don t know borrowers the way they did in decades past (Foust and Grow, 2005). Technological 18 Crime & Justice International January/February 2007

19 fraud advances in identity theft have also led to a rise in fraudulent loan documentation schemes. Mortgage Fraud Internationally Canada Canada is experiencing increased mortgage fraud complaints. According to industry insiders in Canada, fraud usually occurs in the entry-level new home market (Waters, 1993). Sources in Calgary state that, while the number of realtors is small, the primary offenders are the top producers, with the incentive of a substantial commission on the fraudulent loan (Waters, 1993). According to a recent estimate by the Quebec Association of Real Estate Agents and Brokers, mortgage fraud causes $1.5 billion in losses a year (Somerset, 2006). The Real Estate Council of Alberta recently did its own measurement of fraud over a 12-month period and found 2,700 cases in Alberta alone (Somerset, 2006). Mortgage fraud is a complex crime and, according to Barry Elliott, Ontario-based creator and coordinator of Phone-busters, a national police-sponsored call center that tracks fraud, The problem with mortgage fraud is you re dealing with identity theft...you can be victimized with a mortgage on your property and not be aware of it, or have property purchased in your name and not even know about it (McLellan, 2006). As in the United States, many cases of mortgage fraud in Canada use straw buyers and fraudulent loan documentation. Susan Leslie, vice president of claims and underwriting for First Canadian Title, stated, In 2004, mortgage fraud accounted for 36 percent of the claims we [First Canadian Title] paid, whereas in 2000, it would have been closer to 15 percent (Somerset, 2006). The Law Society of Upper Canada explains the increase in mortgage fraud is a result of the easier access ascribed by the electronic land registry system, the increased competitiveness of money lenders, and the amplified pressure placed by clients on lawyers to close deals without due diligence (Somerset, 2006). New Zealand The Auckland government has recently taken steps to safeguard homes from mortgage fraud by putting special stipulations on property titles. Registrar-General of Land, Robbie Muir, said that Land Information NZ put caveats on the house titles to stop fraud recurring. This means no one, including the victims, can raise a mortgage against the houses and the victims would have to go through a legal process to have the special orders removed Crime & Justice International January/Februray 2007 or sell their properties (The New Zealand Herald, January 17, 2006). One example of mortgage fraud in New Zealand is Richard Albert Essex of Onehunga, who admitted to defrauding four banks of nearly $1.5 million. He pleaded guilty to one charge of using a document with intent to defraud and could receive up to seven years in jail (The New Zealand Herald, May 30, 2006). As the owner of New Zealand Debt Repay, Essex offered financial assistance to homeowners in financial difficulty.it would enter into sell and buy-back agreements where clients would sell their properties to the company and agree to re-purchase the property 12 months later for a higher price (The New Zealand Herald, May 30, 2006). Prosecutors determined that Essex refinanced the mortgages on the properties with various banks, supporting his applications with false documents and information relating to his income, employment, and his ownership of the properties (The New Zealand Herald, January 17, 2006). Great Britain A c c o u n t a n t s KPMG revealed that the cost of fraud in the North-East and Yorkshire regions of England has quadrupled from 2004 to 2005, costing businesses 21.5 million pounds; similarly, the number of cases of mortgage fraud investigated by law enforcement in the regions rose, from 10 to 18 (Anderson, 2004). Detective Inspector Phil Butler, chairman of the North-East Fraud Forum and head of the Northumbria Police Economic Crime Unit, was encouraged by the numbers, stating, Now people are much more open to talking to the police and one of our aims is to remove the stigma of talking about fraud. It was under-reported in the past (Anderson, 2004). The Financial Services Authority (FSA) joined forces with mortgage brokers in an effort to crack down on fraudulent loan applications and eliminate mortgage fraud. This proactive resolution, supported by the Council of Mortgage Lenders, requests mortgage firms to pass on information to the FSA if they suspect a fraudulent application has been made through an intermediary (Guardian Unlimited, 2006). Regulators are interested in cases in which the mortgage broker has been aware of the fraud, as well as incidents where they failed to spot it (Guardian Unlimited, 2006). Such proactive approaches to mortgage fraud are occurring more frequently as fraud continues to increase worldwide. China In South China, five men are alleged to have conspired to defraud $12.5 million from four banks, Liu Chong Hing Bank, Bank of America, Bank of East Asia, and Bank of China. The Eastern Court held that the defendants had allegedly created continued on page 20 19

20 fraud continued from page 19 bogus provisional agreements for the sale and purchase of a Tuen Mun housing project, Villa Pinada, to apply for mortgages totaling about $12.5 million (Yan, 2004). Hong Kong A Hong Kong man was sentenced to 16 months imprisonment following the conviction of one count of Obtaining a Pecuniary Advantage by Deception in a case of mortgage fraud (Xinhua General News Service, 2005). To support his mortgage loan application for the amount of 926,820 Hong Kong (HK) dollars (119,412 US dollars), the defendant submitted a letter of employment and four Mandatory Provident Fund (MPF) records to the bank, showing that he had been employed as a programmer from September 2001 with a monthly salary of 25,900 HK dollars (3,337 US dollars) (Xinhua General News Service, 2005). Japan The mortgage securities firm Daiwa Toshi Kanzai collapsed in Japan in 2001, after being declared insolvent with liabilities exceeding assets by 5 billion yen. Following its downfall, more than 500 victims of mortgage fraud sued the Japanese government in 2003, claiming that it was the state s failure to prevent the firm Daiwa Toshi Kanzai from continuing to carry on fraudulent business, including mortgage fraud (Japan Economic Newswire, 2003). The Osaka-based Daiwa Toshi Kanzai is estimated to have caused over 110 billion yen in losses to approximately 17,000 people (Japan Economic Newswire, 2003). This is the first group action over the responsibility of the state to regulate mortgage securities firms (Japan Economic Newswire, 2003). It is the second-largest consumer damages suit against the state, following the Toyota Shoji affair in which victims claimed the government did not supervise Toyota Trading Corp., which conducted a nationwide scam involving sales of gold to elderly investors in the 1980s (Japan Economic Newswire, 2003). Mortgage Fraud Outlook Mortgage fraud has been called the fastest growing whitecollar crime in the United States, by Karen Spangenberg, Chief of the Financial Crimes Division of the FBI. Losses exceeded $1 billion in fiscal year 2005, according to data collected by the FBI (2005). In addition, 33% more suspicious activity reports (SARs) have been filed in 2005 than in 2004 (FBI, 2005). According to John Robbins, the chairman-elect of the Mortgage Bankers Association, law enforcement agencies told lenders that they didn t have the resources to investigate and prosecute cases of mortgage fraud (Sichelman, 2006). In response, the mortgage industry, including the Mortgage Bankers Association, developed a habit of dealing with fraud internally (Sichelman, 2006). Times are changing, however. Law enforcement agencies are encouraging lenders and other industry insiders to come forward with information regarding mortgage fraud. Laws are changing, especially in Georgia, USA, which has consistently been ranked in the top 10 hot spots by the Mortgage Asset Research Institute ( ). To combat mortgage fraud, Georgia has implemented new laws, which also help judges better understand what mortgage fraud involves (Sichelman, 2006). Policymakers have passed the Georgia Residential Mortgage Fraud Act. This law makes it punishable by one to 10 years in prison to misstate, misrepresent or omit facts in a real estate transaction, with intent to defraud the law also provides for fines of up to $100,000 an offense if a pattern of illegality is proved (Derus, 2006). The legislation enables law enforcement agents to apprehend suspects before the lending institutions have been defrauded of millions of dollars. Agents are now able to intervene as soon as a supposed fraud has been committed. Four states have modeled laws after Georgia s, and California is considering following as well. As Atlanta lawyer Peter Lubin explains, Before, we weren t getting any attention. They wanted to know who Fannie Mae was and how they could reach her. Now they re better educated, and we re getting indictments (Sichelman, 2006). To this end, Senator Barack Obama of Illinois is trying to push legislation through that would criminalize mortgage fraud. The Stopping Transactions which Operate to Promote Fraud, Risk and Underdevelopment Act, known as the STOP FRAUD Act, would expand the SARs reporting requirement, establish a database for censured and debarred mortgage professionals, and provide funding for a number of enforcement activities (Sichelman, 2006). Experienced and ethical mortgage professionals can take steps to avoid the pitfalls of unethical behavior. Homeowners can take several precautions when choosing a mortgage broker such as asking probing questions about their application, including questions about current interest rates. In addition, borrowers should never be asked to falsify any data or asked to leave any signature lines blank. Informed borrowers should ask for 20 Crime & Justice International January/February 2007