October 4, 2002
PROFITING FROM CRIME
By: Sandra Norman-Eady, Chief Attorney
You asked if other states prohibit convicted criminals from using the Internet to sell memorabilia from the crime they committed.
We are unaware of any state that prohibits convicted criminals from using the Internet to sell memorabilia from the crime they committed.
However two states, California and Texas, have expanded their profiteering statutes (commonly known as "Son-of-Sam" laws) to prohibit convicted felons or their representatives from profiting from the sale of crime memorabilia, including Internet sales. California enacted its law in 2000 and Texas followed in 2001. Both states allow the profits to be used to reimburse crime victims for damages.
Most states have "Son-of Sam" laws that prohibit convicted criminals from profiting from the sale of stories about the crimes they committed, but not memorabilia. In a few states, including Connecticut, people accused of a crime (a violent crime in this state) are also subject to the prohibition. These laws, while fairly similar, vary in wording by state. In general, however, they require any party who contracts with a criminal for the rights (i. e. , book, television, movie, or other depiction) to his story about the crime he committed to pay to the state all profits which would otherwise be paid to the offender under the contract. Because these laws are limited to the reenactment of the crime through the telling of a story,
they are not used to prohibit a criminal offender from selling memorabilia like the victim's personal belongings, photographs of the crime scene, autographs, etc. , at online auctions.
The U. S. Supreme Court struck down New York's "Son of Sam" law in 1991 on the ground that it violated the First Amendment's free speech provisions. After the decision was released, New York and a number of other states, including Connecticut, amended their law to meet the Court's standards. This year the California Supreme Court found that state's "Son of Sam" law, but not the 2000 amendment to the law (memorabilia sales), facially invalid under the First Amendment to the U. S. Constitution and the state constitution to the extent that it permits the state to seize all monies due a convicted felon from expressive materials that include the story of crime.
STATE LAWS PROHIBITING MEMORABILIA SALES OVER THE INTERNET
All proceeds owed to a felon for the (1) preparation to sell, (2) rights to, or (3) sale of materials that include or are based on the story of a felony for which the felon was convicted must be placed in an involuntary trust for the benefit of crime victims. "Proceeds" mean fees, royalties, real property, or other consideration of any kind received by or owing to a felon or his representative for preparing to sell materials, rights to materials, or the sale or distribution of materials whether earned, accrued, or paid before or after conviction, including interest, earnings, or accretions.
In addition to proceeds, all profit from anything a felon, his representative, or a profiteer of the felony sells or transfers that is enhanced in value by the notoriety of the crime the felon committed is subject to inclusion in the trust. The income may have been accrued, earned, or paid before or after the felon's conviction. However, voluntary donations or contributions to a defendant's defense are not included, unless given in exchange for something of value. A "profiteer of the felony" is anyone who sells or transfers for profit any of the felon's memorabilia or other property, which has an enhanced value because of the notoriety of the crime the felon committed. A "profiteer of the felony" does not include the media or a person exercising his First Amendment right to sell books, magazine or newspaper articles, movies, films, videotapes, sound recordings, radio or television interviews or appearances, or live presentations.
With one exception, the trust continues until five years after the proceeds were due to the felon or five years after he was convicted, whichever is later. If a beneficiary files an action to recover his interest in the trust within the five years, the trust character of the property must continue until the action concludes. At the end of the five years, any unclaimed proceeds in the trust are transferred to the Restitution Fund.
A beneficiary may bring the action against a convicted felon or his representative or a profiteer of a felony. If the action is against the profiteer, the court must, upon the profiteer's proof, exclude from the trust that portion of the profits that represents the inherent value of the memorabilia, property, or thing sold or transferred, exclusive of the enhanced value resulting from the felon's notoriety.
The beneficiary may bring the action in the superior court for the county where he or the convicted felon resides or the proceeds or profits are located. If the court determines that the beneficiary is entitled to proceeds or profits, it must order the payment from funds already received and, if those or insufficient, from future funds that may be received. Beneficiaries' claims do not have priority over claims for restitution or penalty fines or claims for reimbursements related to public defender services. However, 60% of the trust must be preserved for beneficiaries (California Civil Code § 2225 (b)(2)).
The law (Texas Code § 59. 01 and . 06) requires the state's attorney to transfer to the attorney general income, over fair market value, that a convicted felon receives from the sale of tangible property that increased in value because of criminal notoriety. To determine the fair market value, the state's attorney must look at the value of substantially similar property unaffected by notoriety.
After transferring the income to the attorney general, the state's attorney must transfer the remainder to the property owner. The attorney general deposits the money into an escrow account for crime victims. Victims who obtain a judgment for damages against the criminal offender have the judgment satisfied from the account. The attorney general transfers money unclaimed after five years to the crime victims' compensation fund. The law took effect on September 1, 2001 and applies to proceeds of sales that occur on and after that date.
"SON OF SAM LAWS" OUTSIDE OF AND IN CONNECTICUT
Under most "Son of Sam" laws, parties contracting with a criminal offender or his representative for the rights to his recounting of the crime he committed must pay to the state any profits that would have otherwise been paid to the offender. The state places the money in an escrow account for crime victims who obtain money judgments for damages against their criminal offender. (The money in the account is used to satisfy the judgment).
If, within a specified number of years (usually five), no victims file an action for damages or excess funds remain in the account, the money can be used for other things like court costs, restitution, attorneys' fees, and incarceration costs. Any remaining funds are deposited into the state's crime victim compensation fund.
Constitutionality of "Son of Sam" Laws
In Simon and Schuster, Inc. v. New York Crime Victims Board, 112 S. Ct. 501 (1991), the U. S. Supreme Court held that New York's "Son of Sam" law violated the federal constitution's First Amendment right to free speech.
The Court first determined that the law, which targeted only profits that resulted from activities related to speech (such as books, movies, interviews, etc. ), must be narrowly written to achieve a compelling government interest in order to be constitutional. The Court acknowledged that providing financial recovery to crime victims was a compelling interest. It also found that it was not necessary that the particular victims compensated be the victims of that offender; payment to other victims, through the state compensation fund, was also acceptable. However, the Court found that the law was not narrowly written. The law was overbroad in that it applied not only to convicted offenders, but also to those accused of a crime. In addition, the law made no distinctions between materials that were substantially about the crime and those in which the mention of the crime was only tangential or insignificant.
While the Supreme Court's decision involved only the New York law, nearly all "Son of Sam" statutes had similar language, so their constitutionality was also called into question. As a result, most legislatures, including Connecticut's, amended their laws in order to make them constitutional, specifically to meet the standards of constitutionality established by the Simon & Schuster case.
In a recent decision, the California Supreme Court found that state's "Son of Sam" law to be facially invalid under the First Amendment to the federal constitution and the Liberty of Speech clause of the state constitution (Article I, § 2(a)) to the extent that it permits the seizure of all monies due a convicted felon from expressive materials that include the story of the crime (Keenan v. Superior Court, S080284 (2/21/02)). California's statute (California Civil Code §2225(b)(1)) 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.
Connecticut's "Son of Sam" Statute
The law prevents a person accused of a crime of violence from keeping profits or royalties from any book, movie, radio or television program, live entertainment of any kind, etc. , which (1) re-enacts the violent crime or (2) is about the defendant's thoughts or feelings about a crime. The law obligates the party that contracts with the defendant to pay any funds owed to him into a escrow account established by the Office of Victim Services.
The account is available for the defendant's legal defense and, if the defendant is convicted, to satisfy any crime victim's money judgment for damages. The action for damages must be filed within five years from the date of the crime. If no victim obtains a judgment within the five years, the money in the account must be deposited in the Criminal Injuries Compensation Fund. The money in the account must be returned to the defendant if there is an affirmative finding within the five years that he did not commit the crime (CGS § 54-218).