Writing and Rewriting the Law So That Crime Does not Pay
In 1977, the New York State legislature passed a forfeiture of assets bill to prevent a vicious serial killer (cited in the first example above) from being showered with lucrative offers for book contracts, movie rights, and paid appearances to tell his inside story. The law stipulated that whenever an offender signed a contract to receive profits from recounting his illegal acts, the company receiving the profits had to turn them over to the government for dis- bursement to the immediate victims or to merge the proceeds into the state’s compensation fund. The principle behind the law was that it was con- trary to the public’s interest to enable violent offen- ders to make money from retelling their exploits at the same time that the parties they injured struggled financially and suffered renewed emotional pain from the additional wave of publicity. In the next few years, 42 states and the federal government fol- lowed New York’s lead and enacted similar “Son of Sam” laws (NCVC, 2011b). Public opinion backed this legislative trend. In one poll, 86 percent of the respondents favored a law that would take away profits gained by notorious criminals and distribute this money to their victims (National Victim Center, 1991a).
These statutes went after financial windfalls: fees, advances, and royalties from reenactments of the heinous deeds in movies, memoirs, books, magazine articles, tape recordings, records, radio programs, television shows, or other forms of enter- tainment. If offenders (whether accused or con- victed) were paid for expressing their thoughts, opinions, or feelings about their depredations, or for giving graphic descriptions about these vicious acts, their income could be seized by the govern- ment and placed in an escrow account before they could spend it.
The law operates somewhat differently in each state. In most states, the injured parties must first successfully sue the offender for damages in civil court and obtain a judgment in order to be eligible to claim a portion of the profits. In other states, victim compensation programs handle the claims
and dole out the accrued profits. It usually doesn’t matter if the perpetrator is convicted at a trial or admits guilt after plea negotiations. Those who are not convicted on the grounds of insanity and even defendants under indictment also can be compelled to turn over their profits in some states. For up to five years until a statute of limitations runs out, individuals who had incurred direct physical or mental injuries or financial losses could argue in civil court that they were entitled to a portion of the money held by the state in an escrow account. In some states, leftover funds not awarded in dam- age lawsuits could revert back to the offenders. But in other jurisdictions, any remaining money could be used to cover unpaid attorneys’ fees plus the court costs arising from the prosecution or to replenish the state’s victim compensation fund (Stark and Goldstein, 1985; NOVA, 1988; and NCVC, 2011b). However, whenever a notorious offender was found guilty of a political crime, or a white-collar swindle, or a vice offense such as run- ning a lucrative prostitution ring or trafficking in drugs, the legal issue of exactly which individuals were entitled to carve up these ill-gotten gains became very complicated.
Notoriety-for-profit laws were primarily sym- bolic gestures intended to drive home the message that “crime doesn’t pay.” They also were designed to facilitate handing over money to injured parties—but from the outset, these laws were con- troversial. Critics argued that the confiscation of payments by government had a chilling effect on the First Amendment’s guarantee of freedom of expression. In 1991, the justices of the Supreme Court agreed and by a vote of 9 to 0 struck down New York’s law and all the others like it in various states. In its unanimous opinion (Simon and Schuster v. New York State Crime Victims Board), the Court recognized that states had an undisputed compelling interest to deprive felons from profiting from recounting their illegal activities and were pursuing a worthwhile goal in trying to transfer the proceeds from criminals to their victims. In this case, a lead- ing publisher was about to release a book that was going to be made into a movie in which a Mafia wiseguy narrates how he pulled off daring robberies
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and grisly murders until the law finally caught up with him. However, the justices argued that enact- ing these overly broad state laws unfairly singled out a convict’s “speech derived income” for a special tax burden and thereby established an inhibiting financial disincentive to create or publish works with a particular content. Publishers, filmmakers, and civil libertarians hailed the Court’s landmark ruling as a victory that preserved the constitutional right to free expression and protected authors and their audiences. They noted that a substantial body of worthwhile literature and redeeming commen- tary by notable prisoners might never have been written if those laws were in force years ago.
But others denounced the Court’s decision as a blow to victims’ rights. They undertook the task of redrafting provisions about lawsuits, statutes of limitation, fines, forfeitures, and escrow accounts so that they would meet constitutional standards. Soon, state legislatures passed revised “Son of Sam” laws that do not single out royalties from books or movies but target any and all assets these convicts accrue (Fein, 1991; and Alexander, 1992). Several states have gone even further and prohibit law enforcement officials (such as detec- tives, prosecutors, defense attorneys, judges, and witnesses) from making money by telling about their roles in high-profile cases from the time of indictment until the completion of appeals (NCVC, 2011). However, several state court deci- sions have struck down “Son of Sam” laws on First Amendment grounds, signaling that these statutes must be narrowly crafted to survive constitutional challenges. But even if notoriety for profit laws don’t serve their intended purpose to make sure that “crime doesn’t pay,” victims still can seek restitution from offenders’ assets through tradi- tional tort suits and general civil forfeiture actions (Hudson, 2012).
Injured parties and close relatives of murder victims still face an uphill battle to collect what they believe is due them, as the following widely discussed account illustrates:
A prisoner writes a book about the nightmare of growing up behind bars in juvenile
institutions and state prisons. The inmate’s insightful life story sells so well that it becomes the basis for a play, and well-known writers help him get parole. But just six weeks after he is released, he becomes embroiled in an argu- ment with a waiter over the use of the restau- rant’s restroom, and stabs him to death. After he is sentenced to prison for manslaughter, the waiter’s young widow sues him in civil court. The inmate, representing himself, asserts that the waiter’s life “was not worth a dime,” but the jury awards her more than $ 7.5 million. Over the next decade or so, the inmate earns about $115,000 in royalties from his several books and plays, yet the widow collects less than $50,000. In the meantime, he launches two counter lawsuits against her. Exercising her right to appear before the parole board, she argues against his early release. When he is turned down, the infamous convict–author hangs himself in his cell. “After what he put us through,” the widow asserts, “it’s more than a relief, it’s fresh air. What goes around comes around.” (Halbfinger, 2002)
On rare occasion, victims and their families can receive some proceeds from the sale of “murderabilia”—the artifacts of notorious killers. For example, the United States Marshals Service auctioned off 58 lots of possessions seized from a demented critic of technology (imprisoned for the rest of his life) who sent letter bombs to professors and others during a 17-year terror spree. The online auction, ordered by a federal judge many years after the trial, raised over $230,000 from the sale of items deemed to be of some monetary value by private collectors who paid top dollar to purchase them. The proceeds were divided up by the next of kin of the three people he had killed and the 23 who had been injured by his bombs. But most of the time, the sale of murderabilia merely enriches the speculators who buy and sell artifacts in a ghoulish trade that glorifies the criminal and rekindles the grief of injured parties. Making a profit from the sale of murderabilia is prohibited by law in eight states (Vinciguerra, 2011).
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SUMMARY
Victims can try to recover their financial losses in several ways. Restitution payments directly from the offender’s earnings seem to be a fair and appro- priate method of reimbursement and may provide a solid foundation for redemption and eventual rec- onciliation. Restitution may be viewed as an addi- tional penalty but also as a way to sensitize and rehabilitate lawbreakers. Unfortunately, many vic- tims never receive any money because their offen- ders are not caught, convicted, and sentenced to restitution or are unable or unwilling to earn ade- quate amounts of money to pay meaningful installments.
Victims can attempt to sue their offenders in civil court for compensatory and punitive damages. As plaintiffs, they have a better chance of winning against defendants than in criminal court because the standard of proof—a preponderance of the evidence—is easier to meet than guilt beyond a reasonable doubt. However, only offenders who are identified and who have substantial exposed assets can be sued successfully. If criminals are not caught or have no tangible assets, victims might be able to launch lawsuits against third parties such as businesses or criminal justice agencies that acted
with such gross negligence that innocent parties were harmed in predictable ways by dangerous individuals.
Private insurance coverage can repay losses from assaults, car thefts, burglaries, robberies, and slayings. But many victims could not afford the pre- miums, did not have the foresight to take out a policy, or could not find a company that would sell them coverage at reasonable rates.
Victim compensation funds have been set up in most states since the 1960s, although they initially met considerable political resistance. Injured parties may receive reimbursement even if the perpetrators are not caught and convicted. However, only inno- cent victims of violent crimes, not people who have suffered losses from property crimes, currently are eligible for financial aid that covers lost earnings and out-of-pocket medical expenses. Many state funds do not have enough money from penalty assess- ments and the general treasury to quickly and ade- quately reimburse all eligible applicants.
A small number of individuals might be able to launch lawsuits to claim a portion of the money that certain convicts who viciously harmed them made by cashing in on their notoriety.