On May 24, 2007, U.S. Senator John Comyn of Texas introduced a bill that would make it illegal for any prisoner who is incarcerated in a federal or state prison to deposit any object for delivery or for mailing with the intent that the object be placed in interstate or foreign commerce. Violation of the proposed "Stop the Sale of Murderabilia to Protect the Dignity of Crime Victims Act of 2007" carries a sentence of at least three years and a maximum often years to run consecutively to a prisoner's current sentence. Andy Kahan, the director of the Houston Mayor's Crime Victims Office, lobbied the Senator to introduce the bill.
Kahan, a nationally known advocate for crime victims, learned about the practice of buying and selling memorabilia associated with serial killers as early as 1999. He "launched a crusade to wipe it out, state by state, as an affront to crime victims.'" Kahan's passion stems from his concern for people like Harriett Semander, whose daughter was murdered by Coral Eugene Watts, a confessed killer of thirteen women. Semander learned that items associated with Watts, "like letters and envelopes with his handwriting" were being sold on "Internet sites that specialize in merchandise from convicted felons."
Senator Comyn seeks to prevent the sale of items associated with criminals by blocking them at their source — the prison gates. This is a new approach to the old problem of criminals profiting from their crimes. Many anti-profiting laws aimed at criminals, particularly the so-called "Son of Sam laws" which target proceeds derived by criminals from the sale of the depiction of their crimes, are constitutionally defective.
This Note discusses whether the proposed "Stop the Sale of Murderabilia to Protect the Dignity of Crime Victims Act of 2007" resolves the constitutional problems of past anti-profiting legislation without creating new problems of its own. Part I explains what "murderabilia" is and what policy reasons justify banning its sale. Part II gives an overview of Son of Sam laws and other anti-profiting legislation, and discusses the constitutional problems they have faced. Part III analyzes Senator Comyn's bill, and compares it to past legislation that courts have found unconstitutional, to determine whether the bill, if passed, would withstand constitutional challenge. Part IV discusses some possible negative ramifications of the bill. Finally, Part V evaluates the approaches that some states have taken, as well as approaches that others have suggested, to accomplish the dual goals of compensating victims and preventing criminals from profiting from their crimes without violating prisoners' constitutional rights. Part V asserts that some combination of these other approaches is far superior to Senator Comyn's proposed bill.'Crime Shouldn’t Pay: A Proposal to Create an Effective and Constitutional Federal Anti-Profiting Statute' by Paul G. Cassell in (2006) 19(2) Federal Sentencing Reporter 119-124 comments -
￼It is conventional wisdom that crime should not pay. Current federal law reflects that wisdom by allowing courts to forfeit any profits a criminal receives from a crime. For example, if a defendant gets a book deal for describing his federal crime, a court is statutorily authorized (at the request of a prosecutor) to forfeit all the money the defendant would make under the deal. Unfortunately, this existing law is unconstitutional. The law targets only certain forms of profiting that raise First Amendment concerns — such as writing books or making movies — rather than responding to profiting in a facially neutral way.
It would be an embarrassment to the federal justice system if criminals were able to profit from their crimes merely because no one had taken the time to draft an effective prohibition. On September 19, 2006, the Judicial Conference of the United States urged Congress to fix the problem in the current statute. Congress could easily block profiting in two ways. First, Congress could require courts to include a prohibition of profiting as a standard, mandatory condition of supervised release at all federal sentencings. The term of supervised released should extend for a lengthy period of time, to the life of the criminal if needed. And, second, Congress could redraft the federal anti-profiting statute so that it forbids all profiting from federal crimes — not just profiting through expressive activities. Such a statute would satisfy First Amendment concerns while ensuring that crime will not pay for criminals in the federal system.'Rethinking Murderabilia: How States Can Restrict Some Depictions of Crime as They Restrict Child Pornography' by Joseph C. Mauro in (2011) 22 Fordham Intellectual Property, Media & Entertainment Law Journal 323 argues -
Murderabilia refers to items whose commercial value stems from their relation to a notorious crime or criminal. To protect victims of crime from psychological harm, most states have passed laws restricting the sale of murderabilia. Many of these laws have been challenged on First Amendment grounds, and observers consider them to be of questionable constitutionality.
I propose that the constitutional framework allowing states to restrict child pornography can solve this problem. In New York v. Ferber, the Supreme Court held that states may restrict child pornography as speech, without regard to its First Amendment value, because it is “intrinsically related” to crime in two ways - it creates an economic incentive to commit child abuse (to produce child pornography) and its circulation harms child victims by forcing them to recall their experiences. The same rationale applies to murderabilia, because it creates an economic incentive to commit crime and its circulation harms crime victims.
Nevertheless, considering the range of speech that can be considered murderabilia - from bags of dirt to abstract paintings - laws that restrict murderabilia are more likely to run afoul of the First Amendment than child pornography laws. Therefore, murderabilia laws must be strictly limited to the most harmful crimes, the most vulnerable victims, and the least expressive types of murderabilia. With properly limited laws, states should be free to restrict murderabilia as they restrict child pornography under Ferber.'Taking the Assets of Criminals to Compensate Victims of Violence: A Legal and Philosophical Approach' by Roy Whitehead and Walter E. Block in (2003) 5 Journal of Law and Society comments
Over 30 years ago, New York was terrorized by a serial killer, David Berkowitz, who was immortalized by the media as the "Son of Sam."' By the time Berkowitz was apprehended, publicity about the case had created enormous monetary value in the publication rights to his criminal story. New York's appalled legislature sought to prevent Berkowitz and other criminals from exploiting for profit the tales of their sensational crimes while their victims remained uncompensated. The statute resulting from the legislature's praiseworthy efforts to strip the criminal of his crime related profits and compensate the victim was called the "Son of Sam Law." Its efforts are praiseworthy because criminals should not profit from their violence against victims and surely victims deserve to be compensated for injuries caused by criminal violence. Today, over 40 states, including California, have some form of the "Son of Sam" law. The New York law provided that if any person "accused or convicted of a crime in this state" was "due money under contract with respect to a re-enactment of the crime by way of a movie, book, magazine article, tape recording, phonograph record, radio or television presentation, or live entertainment of any lund," or for expressions of a person's thoughts or feelings about the crime, the contract must be reported to the New York State Crime Victims Board, and the money due must be paid over to the board and placed in an escrow account, primarily for the benefit of victims who, within five years thereafter, won money judgments against the criminal.' Convicted persons included those who had "voluntarily and intelligently admitted" crimes for which they were not prosecuted.
We contend that all people who abhor violence should favor stripping the criminal of his profits and compensating the hapless victim. To that end we explore the recent California case, which we call "Son of Sinatra," to discover a constitutionally pleasing way to accomplish this result. We discuss the constitutional problems that arise when states set out to seize assets of the criminal that have a connection with his storytelling about the crime. Often, the attempt fails because of the application of the First Amendment of the U.S. Constitution as applied to the states by the Fourteenth Amendment. The state of California is one of those jurisdictions that seek to relieve the criminal of his ill gained profits and to attach the assets of the criminal to compensate the victim. The "Son of Sinatra" case arose from a 1962 conspiracy. Keenan, Amsler and Irvin
kidnapped Sinatra, Jr., from his Nevada hotel room and drove him to Los Angeles, where he was held until his father paid a ransom. During his captivity, Sinatra, Jr., suffered economic loss, physical suffering, and emotional distress. Keenan, Amsler, and Irwin were later apprehended, tried, convicted of felony offenses, and incarcerated under California law. Following their arrests, the kidnappers made media statements, since admitted to be false, that Sinatra, Jr., had conspired in his own kidnapping to extract money from his father. These defamatory statements caused further damage to Sinatra, Jr.'s business and reputation.
Years later, the kidnappers contacted a New Times Los Angeles reporter named Gilstrap to set up an interview concerning the kidnapping.
The purpose was to produce a story for sale to print, broadcast, and film media. Monies derived from exploiting the kidnapping story would be split among Gilstrap, New Times, and the kidnappers. An article entitled 'Snatching Sinatra', authored by Gilstrap, appeared in a January 1998 issue of New Times Los Angeles. In late January 1998 and thereafter, other magazines reported that Columbia Pictures had bought the motion picture rights to 'Snatching Sinatra' for up to $1.5 million. In February 1998, citing section 2225, Sinatra, Jr., made demand on Columbia Pictures to withhold from the kidnappers, and from Gilstrap and New Times as the kidnappers' "representatives," any monies otherwise due such persons or entities for the motion picture rights. Columbia Pictures refused to do so without a court order.
The complaint asserted that under section 2225, all monies due to the kidnappers, or to their "representatives" Gilstrap and New Times, for preparation for sale of the story of Sinatra, Jr.'s, kidnapping, the sale of the rights to the story, or the sale of materials that included or were based on the story, were "proceeds" as defined by subdivision (a)(9) and "profits" as defined by subdivision (a)(10), and were thus subject to an involuntary trust in favor of Sinatra, Jr., a statutory "beneficiary" (id., subd. (a)(4)(A)). The complaint sought an order that the defendants, particularly Columbia Pictures and New Times, hold such present and future proceeds and profits in trust for Sinatra, Jr. It also sought an injunction to (1) prevent Columbia Pictures and New Times from paying such proceeds and profits to any other that all such payments be made instead to Sinatra, Jr., to the extent of his damages or, in the alternative, to the superior court for distribution for the benefit of the victims of the kidnapping."
Having praised such attempts by the states to deny any profits from their crimes to such criminals, we nevertheless are compelled to explore the possible constitutional infirmities of the California equivalent of the New York "Son of Sam Law." The first prong of the California statute "imposes an involuntary trust, in favor of damaged and uncompensated crime victims as "beneficiaries" on a convicted felon's 'proceeds' from expressive 'materials' (books, films, magazine, and newspaper articles, video and sound recordings, radio and television appearances, and live presentations) that "include or are based on the 'story' of a felony for which the felon was convicted, except where the materials mention the felony only in passing as in a footnote or bibliography."
The second prong of the California statute deals with "things sold for their felony-related notoriety value." This part of the law concerns profits from "rights" or "things" that have enhanced value due to "notoriety gained from the commission of a felony for which a convicted felon was convicted . This provision applies to criminals, their agents and, in some cases, "profiteers of the felony" or people who make money by selling things or rights related to a crime.
The "Son of Sinatra" case raised the primary issue of whether California's law "facially violate[d] constitutional protections of speech by appropriating, as compensation for crime victims, all monies due to a convicted felon from expressive materials that include the story of the defendant, and (2) require crime." In order to decide the question, the California court turned to the controlling U.S. Supreme Court decision in Simon & Schuster, Inc. v. Members of NY State Crime Victims Board . T'here, the New York statute "confiscated, for the benefit of crime victims, all monies a criminal was due under contract with respect to a 'reenactment' of the crime, or from the expression of his or her personal thoughts or feelings about the crime, in a film, broadcast, print, recording, or live performance format." The high court determined that the NewYork law was invalid on its face
Finding the New York law facially invalid, the Simon & Schuster majority reasoned that the statute, as a direct regulation of speech based on content, must fall unless it satisfied a strict level of constitutional scrutiny. The New York law failed this test, said the majority, because although the state had a compelling interest in compensating crime victims from the fruits of crime, the statute at issue was not narrowly tailored to that purpose. The flaw most clearly identified by the Simon & Schuster majority was that the New York statute was overinclusive. The majority noted two respects in which the New York law regulated speech too broadly for its compelling purpose. First, the law applied to expressive works in which one merely admitted crimes for which he or she had not been convicted. Second, it confiscated all profits from expressive works in which one made even incidental or rangential mention of his or her past crimes for non exploitative purpose.
The Keenan court likewise held that California's Son of Sam law imposed a content-based restriction on free speech:
Like its New York counterpart, [it] fails to satisfy strict scrutiny because it, too, is overinclusive. Section 2225(b)(l) contains the fundamental defect identified in Simon & Schuster; it reaches beyond a criminal's profits from the crime or its exploitation to reach all income from the criminal's speech or expression on any theme or subject, if the story of the crime is included.
In Simon & Schuster, six justices, in an opinion by Justice O'Connor, noted that 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 majority was clearly concerned that "the government's ability to impose content-based burdens on speech raises the specter that the government may effectively drive protected ideas or viewpoints from the market place."" The majority reasoned that the "First Amendment presumptively places this sort of discrimination beyond the power of the government."
New York's Son of Sam Law was presumptively an invalid content-based burden on speech. "[The law] singles out income derived from expressive activity for a burden the state places on no other income and it is directed only at works with a specified content. . . . [Therefore, it] plainly imposes a financial disincentive only on speech with a particular content." Because the "Son of Sam" statute penalizes speech on the basis of content, the high court concluded that it could survive constitutional scrutiny only if the state shows that "its regulation is necessary to conserve a compelling state interest and is narrowly drawn to achieve that end."
The high court continued by indicating that the state had no com- pelling interest in shielding readers and victims from negative emotional responses to a criminal's public retelling of his deeds. This is so because the protection of offensive and disagreeable ideas is at the core of the First Amendment. Constitutionally, states do have a compelling interest in "insuring that victims of crime are compensated by those who harm them", and "preventing wrongdoers from dissipating their assets before the victims can recover." Additionally, the state has a legitimate interest in "ensuring that criminals do not profit from their crimes," and in transferring the fruits of the crime from the criminals to their victims.
New York asserted a compelling interest in preventing criminals from retaining the profits of storytelling about their crimes before their victims were compensated. However, as the high court said, the state did not show why it had a "greater interest in compensating victims from the proceeds of such 'storytelling' than from [reaching] any of the criminal's other asset." The state was also unable to justify "a distinction between this expressive activity and any other activity in connection with its interest in transfemng the fruits of crime from criminals to their victims." The majority reached two conclusions. First, that "the State has a compelling interest in compensating victims from fruits of the crime." Second, that the State has "but little if any interest in limiting such compensation to the proceeds of the wrongdoer's speech about the crime."
Second, the high court then determined that the statute was significantly overinclusive. It cited two factors that illustrated the statute's overbreadth:
(1) "[The statute applies to works on any subject, provided that they express the author's thoughts or recollections about his crime, however tangentially or incidentally;" and (2) "[The statute's broad definition of 'person convicted of a crime' enables the Board to escrow the income of any author who admits in his work to having committed a crime, whether or not the author was ever actually accused or convicted."
To illustrate the overbreadth of the two provisions, the court discussed several works of literature that would potentially fall within the provisions of the New York law. The court reasoned that:
Had the Son of Sam law been in effect at the time and place of publication, it would have escrowed payment for such works as The Autobiography of Malcolm X, which describes crimes committed by the civil rights leader before he became a public figure; Civil Disobedience, in which Thoreau acknowledges his refusal to pay taxes and recalls his experience in jail; and even the Confessions of Saint Augustine, in which the author laments "my past foulness and the carnal corruptions of my soul," one instance of which involved the theft of pears from a neighboring vineyard. … works by American prisoners and ex-prisoners, many of which contain descriptions of the crimes for which the authors were incarcerated, including works by such authors as Emma Goldman and Martin Luther King, Jr. A list of prominent figures whose autobiographies would be subject to the statute if written is not difficult to construct: The list could include Sir Walter Raleigh, who was convicted of treason after a dubiously conducted 1603 trial; Jesse Jackson, who was arrested in 1963 for trespass and resisting arrest after attempting to be served at a lunch counter in North Carolina; and Bertrand Russell, who was jailed for seven days at the age of 89 for participating in a sit-down protest against nuclear weapon.
The majority was clearly troubled by the possibility that the "Son of Sam" law threatens a wide range of protected literature. Some of that threatened literature might not enable a criminal to profit from his crime.