No one else has anything to say, so I’ll start by thanking gfactor for his second guest appearance amongst the Staff Reports, and for a job well done: http://www.straightdope.com/mailbag/mcriminalprofit.html
I had read ** gfactors ** report and found it VERY well written and well documented.
I have been pondering the question for some time, particulary since the original NYS “Son-of-Sam” law was overturned, as to whether a very could be adopted which would pass constitutional muster.
Not sure if I am hijacking or not, but has NY or any other state put into place such a statute which seems to be holding up? ** gfactor ** cites NY and CA as failures to do so. He (she?) does not cite a law which was withstood challenges to date.
No… I am not clever enough to figure it out myself. Wish I was.
Sorry… I need to clarify my question. ** gfactor ** also stated"
.
This sounds unclear to my IANAL brain. While it is clear to me that anyone can write anything, produce a movie, etc. the entire idea is that when derived from their personal criminality, they should not be able to keep the profits. My (hopefully clearer) question is which States have passed these “criminals can not profit” laws, and have they withstood challenges so far?
I hope that is better asked.
Yes, it’s an excellent, well-sourced report.
I do have a question concerning the first case mentioned, Riggs v. Palmer.
So the judges saw that he’d broken no law by inheriting, decided that was unfair, and refused to let him have the property lawfully bequeathed him.
Isn’t that a little, well, arbitrary? (I know they invoked Common Law but doesn’t that work by precedent? If there was no precedent here, how could they justify their decision legally?
Yager, Jessica, “Investigating New York’s 2001 Son of Sam Law: Problems with the Recent Extension of Tort Liability for People Convicted of Crimes,” 48 New York Law School Law Review 433 (2004): http://www.nyls.edu/pdfs/Vol48no3p4 33-488.pdf 15 449-457
describes several unsuccessful challenges to New York’s amended Son of Sam law; no free speech challenges were made, because (the author claims) the law seemed directly responsive to the difficulties pointed out by the Simon & Schuster Court. The first amendment to the law, in 1992, directly responded to* Simon & Schuster * by broadening the provision. Instead of only taking the profits from telling stories, the statute seized all profits of the crime:
Id. *
As I pointed out, New York broadened the law again in 2001. Challenges to that law (again not First Amendment challenges) were rejected by the courts.
So New York’s law seems ok. Some other states have made similar changes:
http://www.ncvc.org/ncvc/main.aspx?dbName=DocumentViewer&DocumentID=32469#4
and see, Nancy Grace, Objection! (2005), excerpted in: CNN.com - Literary loopholes - Jun 16, 2005
Arizona’s law, which is similar to the New York statute as amended in 1992, was upheld by a state appellate court. First Amendment Center | Freedom Forum Institute http://www.cofad1.state.az.us/opinionfiles/CV/CV030512.pdf (pdf).
Nevada’s was struck down by the Nevada Supreme Court on First Amendment grounds. http://nevadalawjournal.org/pdf/seresVsLerner.pdf (pdf)
Gfactor -
An excellent reply, thank you, in spite of my poorly worded question. It seems the States have a way to go on this.
Have the Feds weighed in? Is there a similar law on the Federal books?
The Court relied on Insurance Co. v. Armstrong, 117 U.S. 599, 6 Sup. Ct. Rep. 877. New York Mut. Life Ins. Co. v. Armstrong :: 117 U.S. 591 (1886) :: Justia US Supreme Court Center
In *Armstrong *, the Court faced a claim on an insurance policy. Hunter had insured the life of another man, Armstrong. Within six weeks, Armrstrong was killed. Hunter was convicted of the crime. Hunter was executed so we can assume his estate was claiming on the policy. At any rate, the Court first found that there was sufficient evidence that Hunter had obtained the policy with the intent to cheat and defraud the insurance company, but then the Court continued:
So there was some authority for the proposition that a criminal should not be permitted to get the benefits of his felony. This language is probably dicta (a rationale not relied upon by the court to reach its legal conclusion), but courts rely on *dicta * all the time. If you take a look at the full text of the *Riggs *case, the court goes on for a few more sentences about the case.
As you might guess, *Riggs *is fodder for a lot of legal debate.
http://samsara.law.cwru.edu/blog/archive2/Hard_Cases_Rectification_Na.html
http://people.brandeis.edu/~teuber/lawtheory.html
http://www.everything2.com/index.pl?node_id=1408068
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ny&vol=I01&invol=0130 (recognizing Riggs’ continuing validity, but holding it inapplicable to a case where the wrongdoer is not the one to benefit).
The opinion (pdf) cited above is the wrong one. This is the *Gravano *case that upholds the state’s seizure of profits from his book. http://caselaw.lp.findlaw.com/data2/arizonastatecases/app1/cv/cv020025.pdf. On reading the case, I note that Arizona applied its civil forfeiture law to the book profits and a bunch of other stuff. So the case is not really on point, although it supports the rationale of the New York statute: If we take all of the criminal’s profits, then we aren’t regulating speech. OTOH, my statement that the case involved a law “similar to the New York statute as amended in 1992,” was dead wrong.
While we are at it, the other link is screwed up too: http://www.firstamendmentcenter.org/Speech/arts/topic.aspx?topic=son_of_sam
In other words, in the paragraph quoted above, I got nothing right.
The last cite is particularly intriguing:
If that organization is correct, the crime victims rights activists (of which I have been among) are in trouble. Restitution has always been an elusive goal. RICO at least has been effective because it targets ALL of the assets of the racketeer or corrupt organization which can in any way be traced back to illegal activity (that is my understanding). General civil actions are also notoriously hard to collect on, ie: the Brown family’s “victory” of the civil judgement against OJ Simpson. He has so much income exempted from recovery by them that the judgement is, IIRC, a joke.
Am I reading that right? Does that mean that if I murder someone, serve a jail term, and after I get out I get a job flipping burgers at McDonalds, that the state can confiscate my paycheck? That’s certainly “income, from whatever source derived”, and it’s “owing to the defendent”, and it’s “after the date of the crime”. Surely, the law isn’t actually this draconian… What am I missing?
I would not think it is draconian at all. Hypothesis - you steal $10,000 from me. You spend the money. You are prosecuted, convicted, sentenced to prison and ordered to pay me restitution in the amount of $10,000. You get out of prison and go to work (flipping burgers or whatever). You still OWE ME $10,000. Why is that draconian?
It looks like it really is that draconian:
But federal law comes to the rescue. Just like any other garnishment, this would be subject to the federal limits imposed by the Consumer Credit Protection Act. http://www4.law.cornell.edu/uscode/html/uscode15/usc_sup_01_15_10_41_20_II.html
Specifically:
So the most they could really take is the same amount that any other garnishing creditor could: The lesser of 25% of disposable earnings or weekly disposable earnings exceeding 30 times the minimum wage. In the case of your McDonald’s job, assuming you worked 40 hours a week and made minimum wage, they’d get about 10% of your net pay.
I should be at the law library later this week. If I get a chance I’ll see if there are any cases under the statute.
No. Sorry, I was in a hurry. Let’s make this a bit more concrete by using some real (hypothetical) examples.
According to this Wal-Mart employees “on average take home pay of under $250 a week.”
Ok. So you’re a Wal-Mart employee with a disposable income of $250.
Federal Minimum Wage: $5.15 x 30=$154.50
Amount subject to garnishment under minimum wage test=$95.50. But that’s almost 38% of your check. So we take the smaller amount (25%) or $62.50.
So if you were an ex-felon Wal-Mart employee taking home $250/week in Tennessee, you’d be garnished at the 25% rate and see $62.50 taken from your paycheck each week for a minimum of three years.
The minimum wage test comes into play when someone is working a part-time job that pays minimum wage.
For instance, if you were working the McDonald’s job 20 hours per week (see where I’m going) you’d gross $103. None of that income would be subject to garnishment because it’s less than 30 times minimum wage. Obviously, the same logic would apply if you worked 30 hours at minimum wage. You gross the bare minimum, no more calculations necessary. Congratulations, you’re judgment proof.
Sereda, from this example, http://www.workingfilms.org/onthejob/teachers/fastfood_lesson_plan_04.htm, is only $180.20 per week working at $5.30/hr 40 hours per week. Under the minimum wage test, her garnishable income is $25.70. Twenty-five percent of her disposable income is $45.05, so we use the lower $25.70 figure. That’s still 14% of her net pay. If she were making minimum wage, the garnishable amount might approach 10%.
Oh, lookie, now that I’ve done all this math, I discover that the DOL has done it for me. :smack: http://www.dol.gov/esa/regs/compliance/whd/whdfs30.htm
To make a long answer short. The state’s broad right to seize income is restricted by federal law. At most, they would be able to get 25% of your take home pay. In many cases, it would be much less.
The part that is less common (I won’t say draconian) is that it lets the state seize your money for three years and hold on to it, just in case you get sued. If you don’t, then you’ve only got six months to ask for it back before you lose it forever. And there is no limit to how much can be seized. For example, suppose you stole my car. It’s a cheap car (only worth $2000). The car was demolished; I’m out $5000 total for the car, lost work, interest and what have you. Under the statute, the state could accumulate $20,000 in an account and keep collecting. it could take me years to get a judgment, and even though I already knew that I couldn’t expect more than $5,000, nothing in the statute requires them to stop collecting.
Well, I for one am impressed with your Report and your follow-ups.
Gentlemen and Ladies
We are abusing a very good adjective here. According to Dictionary.com Draconian means Exceedingly harsh; very severe,
As you are pointing out, the State has safeguards against causing someone under these laws being forced to starve. What you are glossing over with this side discussion, IMHO, is the victims right to restitution. I personally don’t care how long it takes the perpetrator to pay his debt to the victim(s) - weeks or years. Citing the example of a minimum wage earner proves what point exactly? Should he be exempt from restitution? Reality says that the typical ex-convict recidivates, and returns to the underground economy anyway. In those cases, he shows Zero income, and avoids restitution completely. At the other extreme, there is an OJ Simpson, with what I believe is a $300,000 a year pension from the NFL which is exempt from seizure by the Browns because it is protected as a pension. Would taking all or part of it be “draconian”?
Sorry for quoting Court TV instead of another source, but it is getting late.
The intent of the Son of Sam and similar laws is a recognition of the crime victims rights. Incarceration in prison caused the perpetrator to pay his debt to society. Now he must pay his debt to the victims. This is not exceedingly harsh, nor very severe. Nor is it cruel and unusual punishment. Even if he pays a dollar a week, it is a form of justice.
What point is there to the characterization of “draconian”? It is hyperbole. These judgements would be draconian ONLY if the safety net did not exist.
I agree. What I was saying is that the Tennessee law goes well beyond that. It is not indexed or tied in any way to actual loss suffered by a victim, and indeed it is not triggered by a request or demand, or even the consent of the victim; the attorney general is *required *to do it. And like I said, I would not call that draconian–just unusual.
Personally, I do think seizing all of a person’s wages is harsh–not to mention impractical. That’s the whole idea behind the federal statute that I cited. If you take all of my wages, then I can’t afford to work. The state statute that we are now discussing does not mention the federal limitations on garnishment. Chronos noted that seizing all of a person’s wages seemed harsh. I was simply explaining the interrelationship between the broad state statute and the remedial federal one.
O.J.'s pension, by the way, is protected just as yours would be, whether you had a car accident and were found liable, had a catastrophic injury and were forced to declare bankruptcy because of overwhelming medical bills, or were convicted homicide and sued by the victim. In any of those cases, you’d be a debtor, and you could take advantage of whatever exemptions the state provided.
http://www.cnn.com/US/9701/26/simpson/
http://www.cnn.com/US/9906/11/simpson.anniversary/
Goldman won’t go after Simpson’s pension (apparently Goldman’s lawyers reached the same conclusion).
http://www.cnn.com/US/9701/26/simpson/index.html
Both of these are almost certainly exempt under California’s Code of Civil Procedure Section 704.115. WAIS Document Retrieval
And see, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=9th&navby=case&no=9455672&exact=1 (provision limiting exemption for certain private pensions to the extent necessary to provide for the retirement of the debtor and his dependents applied only to selfemployed retirement plans and IRAs).
Thanks all.
I already answered the other part of the question. Here’s what I have on this part:
http://archives.cjr.org/year/95/5/jamal.asp
Massachusetts high court knocks down ‘Son of Sam’ bill (Ok. This is on the other part, but I just found it).
Yates story could test state’s ban on profiting from crime (this one too)
And of course, as I pointed out in the report, every state seems to have a slayer (criminal not to profit) rule, whether it is a judicial creation or a statute.
I *knew *I had seen this out there: ‘Son of Sam’ statutes: federal and state summary (list of states that currently have son of sam laws, those that repealed them, and those that never enacted them with language from all of the statutes)
Good stuff.
Another tidbit that I found and then lost:
http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm01105.htm
There is a fine point here which needs some discussion. What I am guessing the intent of the Tennessee statute might be is a scenario like the following: You do harm to me. Under whatever set of circumstances, the value of that harm is $10,000 (I am using arbitrary numbers to make a point). After conviction and etc, you write a book about the crime, sell TV and movie rights, and profit one million bucks. Tennessee wants the entire million. I can see their point. Even though the victim can be “made whole” for less than the million, Tennessee is taking a moral decision that you do not profit in any way from your crime. I am comfortable with this approach.
If I am correct, this is significantly different than the “seize his minimum wage or pension.” discussion. Do you read Tennessee this way?
I could understand that approach, although it could be unconstitutional. But that’s not what they are doing. Here is why:
After the three year limitations period has elapsed, any money not used to satsify judgments held by victims will be returned to the defendant, as long as the defendant asks for it back and supports the request with sufficient documentation. This makes clear that the purpose of the statute is not to confiscate the entire million, in your example. As long as the defendant showed that the $10,000 was paid to the injured victim, the defendant would walk away with the remaining $990,000. Of course the 6 month limit for the defendant’s request suggests that the state certainly hopes the defendant will miss the deadline.