Son of Sam Laws

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SON OF SAM LAWS

Laws that enable a state to use the proceeds a criminal earns from recounting his or her crime in a book, movie, television show, or other depiction. The laws are named after David Berkowitz, a New York serial killer who left a note signed "Son of Sam" at the scene of one of his crimes.

Since 1977 forty-two states and the federal government have enacted various types of Son of Sam laws that take any proceeds a criminal earns for selling the story of his crime and give them to the victims of the crime or to a victims' compensation fund. Since a 1991 U.S. Supreme Court ruling struck down the New York law as unconstitutional, states have sought ways to modify their laws to avoid similar decisions. Despite the apparent virtue of denying criminals the ability to profit from their crimes, serious first amendment issues have been raised about Son of Sam laws.

The New York legislature enacted the first Son of Sam law (N.Y. Exec. Law § 632-a) in 1977 after it learned that David Berkowitz was planning to sell his story of serial killing. The statute affected an accused or convicted person who contracted to speak or write about her crime. It required the person contracting with the criminal to turn over the criminal's proceeds to the state's Crime Victims Compensation Board, which established an escrow account for the benefit of the crime's victims and publicized the existence of the account. To obtain funds, a victim had to bring a civil action and obtain a judgment against the criminal within three years (originally five years) of the establishment of the account. At the end of this time period, the criminal received any funds in the account upon showing that no actions were pending against her.

Forty-one other states adopted similar laws, and the federal government established such a process in the victims of crime act of 1984 (18 U.S.C.A. §§ 3681–3682). In a few states, victims may apply directly to a victims' compensation program rather than sue the criminal directly. Some states seek to prevent criminals from ever profiting from their crimes by retaining any money remaining in the escrow account at the end of the statutory period. Under the federal statute, a court directs the disposition of the remaining funds and may require that part or all of the money be turned over to the Federal Crime Victims Fund.

The constitutionality of the New York Son of Sam law was challenged in Simon and Schuster, Inc. v. New York Victims Crime Board, 502 U.S. 105, 112 S. Ct. 501, 116 L. Ed. 2d 476 (1991). This case involved profits from the book Wiseguy: A Life in a Mafia Family, a nonfiction work about organized crime in New York City, published by Simon and Schuster. Nicholas Pileggi wrote the book with the paid cooperation of Henry Hill, a career criminal who agreed in 1980 to testify against organized crime figures. The book told Hill's life story from 1955, when he first became involved with crime, until 1980.

Simon and Schuster argued that the law was based on the content of a publication and therefore violated the First Amendment. The Court agreed. Writing for a unanimous Court, Justice sandra day o'connor struck down the law, concluding, "A statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech."

The Son of Sam law singled out income derived from expressive activity and was directed only at works having a specified content. Because of the financial disincentive to publication that the act created, and its differential treatment among authors, the Court applied the strictest form of review to the New York law. The Court acknowledged that the state had a compelling interest in compensating victims from the fruits of crime but concluded that the law was not narrowly tailored to achieve that interest. The New York law was over-inclusive, applying to works on any subject as long as the work expressed the author's thoughts or recollections about the crime, however tangentially or incidentally. If the author admitted to committing the crime, it did not matter whether she was ever actually accused or convicted. Under this standard, works by St. Augustine, henry david thoreau, and malcolm x would be covered because their writings discussed crimes that they committed.

The Simon and Schuster decision has put the validity of all Son of Sam laws in doubt. New York quickly amended its law to apply to any economic benefit to the criminal derived from the crime, not just the proceeds from the sale of the offender's story. This redefinition was intended to eliminate the unconstitutional regulation of expressive activity and reconceptualize the law as a regulation of economic proceeds from crime.

The Supreme Court did not strike down all Son of Sam laws as unconstitutional, yet states have followed New York in modifying their statutes to designate that all profits of the offender be subject to attachment, not just those derived from selling his crime story. It remains unclear, however, whether these other laws will withstand a First Amendment challenge.