# Criminals profit from crime **URL:** \ **Category:** Cecil's Columns/Staff Reports\ **Created:** [February 15, 2006, 10:59am UTC](https://boards.straightdope.com/t/criminals-profit-from-crime/344614 "2006-02-15T10:59:28Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![C\_K\_Dexter\_Haven](https://avatars.discourse-cdn.com/v4/letter/c/b2d939/32.png) [@C\_K\_Dexter\_Haven](https://boards.straightdope.com/u/C_K_Dexter_Haven)\ **Post date:** [February 15, 2006, 10:59am UTC](https://boards.straightdope.com/t/criminals-profit-from-crime/344614/1 "2006-02-15T10:59:28Z")
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](http://www.straightdope.com/mailbag/mcriminalprofit.html) ---
**Author:** ![Gringo\_Miami](https://avatars.discourse-cdn.com/v4/letter/g/f17d59/32.png) [@Gringo\_Miami](https://boards.straightdope.com/u/Gringo_Miami)\ **Post date:** [February 15, 2006, 6:56pm UTC](https://boards.straightdope.com/t/criminals-profit-from-crime/344614/2 "2006-02-15T18:56:54Z")
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. ---
**Author:** ![Gringo\_Miami](https://avatars.discourse-cdn.com/v4/letter/g/f17d59/32.png) [@Gringo\_Miami](https://boards.straightdope.com/u/Gringo_Miami)\ **Post date:** [February 15, 2006, 7:13pm UTC](https://boards.straightdope.com/t/criminals-profit-from-crime/344614/3 "2006-02-15T19:13:02Z")
Sorry… I need to clarify my question. \*\* gfactor \*\* also stated" > [@](#): > > New York amended its statute in 1992 and again in 2001 to create, as one author has described it, “a never-ending threat of suit” applying to those “under the watch of the criminal justice system.” So in some states criminals can write books or give interviews about their crimes and earn money for the stories; in others criminals cannot profit from their crimes . 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. ---
**Author:** ![aldiboronti](https://avatars.discourse-cdn.com/v4/letter/a/9fc348/32.png) [@aldiboronti](https://boards.straightdope.com/u/aldiboronti)\ **Post date:** [February 15, 2006, 7:24pm UTC](https://boards.straightdope.com/t/criminals-profit-from-crime/344614/4 "2006-02-15T19:24:05Z")
Yes, it’s an excellent, well-sourced report. I do have a question concerning the first case mentioned, Riggs v. Palmer. > [@](#): > > Palmer had poisoned his grandfather because his grandfather intended to disinherit him. Under New York inheritance statutes, Palmer was entitled to inherit all but a small portion of his grandfather’s estate. The statutes required valid wills to be enforced, and provided no exception that would prevent a killer from inheriting from his victim. The validity of a will is determined at the time it is executed (signed). When the will was executed, Palmer had done nothing wrong. > > The court looked to the maxims of equity for an escape from a result it saw as unjust. It wrote, “He now claims the property, and the sole question for our determination is, can he have it?” The court decided he could not, noting that on top of ordinary law, there were “fundamental maxims of the common law.” 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? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [February 15, 2006, 7:49pm UTC](https://boards.straightdope.com/t/criminals-profit-from-crime/344614/5 "2006-02-15T19:49:00Z")
> [@Gringo\_Miami](#): > > 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. 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](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: > [@](#): > > (i) it does not target speech alone or speech of specified > content but defines “profits of crime” as any property obtained > or income generated from the crime; (ii) it applies > only to persons convicted of a felony and thereby avoids > the prior law’s much broader definition encompassing > persons who admit to crimes or are convicted of misdemeanors; > and (iii) it requires that the income be generated > “as a result of having committed the crime” and > thereby avoiding reaching income generated by reasons > separate and apart from 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: > [@](#): > > a substantial number of states have attempted to revise their laws to make them constitutional. > > The most common change made to such laws has been expanding them to cover any profit received, directly or indirectly, from crimes, not just profits from speech-related activities. For instance, Iowa targets “fruits of the crime,” defined as “any profit which, were it not for the commission of the felony, would not have been realized.” (1) Oklahoma’s amended law applies to “any proceeds or profits from any source, as a direct or indirect result of the crime or sentence, or the notoriety which the crime or sentence has conferred upon the defendant.” (2) In contrast, Tennessee targets “all income, from whatever source derived, which is owing to the defendant, or representative or assignee of the defendant, after the date of the crime.”(3) > > Many of the amended laws still focus on speech-related profits, but exclude materials in which the reference to the crime was incidental or tangential. The Kansas law applies to speech-related profits “provided, such book, magazine or other publication, movie, radio or television presentation or live entertainment of any kind deals principally with the crime for which the person is accused and convicted.” (4) Another common change has been to restrict the notoriety-for-profit statutes to convicted offenders. [http://www.ncvc.org/ncvc/main.aspx?dbName=DocumentViewer&DocumentID=32469#4](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](http://www.cnn.com/2005/LAW/06/14/grace.excerpt.01/) > [@](#): > > Amazingly, after the reversal of the Son of Sam laws made criminal profiteering easy, few states took action. Most have not revised their laws to address the Court’s “Wiseguy” ruling. > > In 2000, Mary Kay Letourneau – the former elementary-school teacher from Seattle, Washington, who had a sexual relationship with one of her sixth-grade students, then-12-year-old Vili Fualaau – was legally allowed to help publish a book chronicling the “affair” despite being sentenced to jail in 1997 on a statutory-rape charge. > > The state of Washington’s State Court of Appeals ruled that Letourneau could not be barred from profiting from her story as part of her sentence, despite a Washington state law that allows for the confiscation of profits made by criminals in describing their crimes. 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.firstamendmentcenter.org/speech/arts/topic.aspx?topic=son_of_sam;) [http://www.cofad1.state.az.us/opinionfiles/CV/CV030512.pdf](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](http://nevadalawjournal.org/pdf/seresVsLerner.pdf) (pdf) ---
**Author:** ![Gringo\_Miami](https://avatars.discourse-cdn.com/v4/letter/g/f17d59/32.png) [@Gringo\_Miami](https://boards.straightdope.com/u/Gringo_Miami)\ **Post date:** [February 15, 2006, 8:08pm UTC](https://boards.straightdope.com/t/criminals-profit-from-crime/344614/6 "2006-02-15T20:08:00Z")
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? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [February 15, 2006, 8:24pm UTC](https://boards.straightdope.com/t/criminals-profit-from-crime/344614/7 "2006-02-15T20:24:47Z")
> [@aldiboronti](#): > > 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? 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](http://www.justia.us/us/117/591/case.html) 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: > [@](#): > > But, independently of any proof of the motives of Hunter in obtaining the policy, and even assuming that they were just and proper, he forfeited all rights under it when, to secure its immediate payment, he murdered the assured.\*\* It would be a reproach to the jurisprudence of the country if one could recover insurance money payable on the death of the party whose life he had feloniously taken. As well might he recover insurance money upon a building that he had willfully fired.\*\* 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://samsara.law.cwru.edu/blog/archive2/Hard_Cases_Rectification_Na.html) [http://people.brandeis.edu/~teuber/lawtheory.html](http://people.brandeis.edu/~teuber/lawtheory.html) [http://www.everything2.com/index.pl?node\_id=1408068](http://www.everything2.com/index.pl?node_id=1408068) [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ny&vol=I01&invol=0130](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). ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [February 15, 2006, 8:29pm UTC](https://boards.straightdope.com/t/criminals-profit-from-crime/344614/8 "2006-02-15T20:29:36Z")
> [@Gringo\_Miami](#): > > Gfactor - > Have the Feds weighed in? Is there a similar law on the Federal books? > [@18 U.S.C. § 3681](#): > > (a) Upon the motion of the United States attorney made at any time after conviction of a defendant for an offense under section 794 of this title or for an offense against the United States resulting in physical harm to an individual, and after notice to any interested party, the court shall, if the court determines that the interest of justice or an order of restitution under this title so requires, order such defendant to forfeit all or any part of proceeds received or to be received by that defendant, or a transferee of that defendant, from a contract relating to a depiction of such crime in a movie, book, newspaper, magazine, radio or television production, or live entertainment of any kind, or an expression of that defendant’s thoughts, opinions, or emotions regarding such crime. > (b) An order issued under subsection (a) of this section shall require that the person with whom the defendant contracts pay to the Attorney General any proceeds due the defendant under such contract. > (c) > (1) Proceeds paid to the Attorney General under this section shall be retained in escrow in the Crime Victims Fund in the Treasury by the Attorney General for five years after the date of an order under this section, but during that five year period may— > (A) be levied upon to satisfy— > (i) a money judgment rendered by a United States district court in favor of a victim of an offense for which such defendant has been convicted, or a legal representative of such victim; and > (ii) a fine imposed by a court of the United States; and > (B) if ordered by the court in the interest of justice, be used to— > (i) satisfy a money judgment rendered in any court in favor of a victim of any offense for which such defendant has been convicted, or a legal representative of such victim; and > (ii) pay for legal representation of the defendant in matters arising from the offense for which such defendant has been convicted, but no more than 20 percent of the total proceeds may be so used. > (2) The court shall direct the disposition of all such proceeds in the possession of the Attorney General at the end of such five years and may require that all or any part of such proceeds be released from escrow and paid into the Crime Victims Fund in the Treasury. > (d) As used in this section, the term “interested party” includes the defendant and any transferee of proceeds due the defendant under the contract, the person with whom the defendant has contracted, and any person physically harmed as a result of the offense for which the defendant has been convicted. > **[18 U.S. Code § 3681 - Order of special forfeiture](https://www.law.cornell.edu/uscode/text/18/3681)** ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [February 15, 2006, 9:17pm UTC](https://boards.straightdope.com/t/criminals-profit-from-crime/344614/9 "2006-02-15T21:17:36Z")
> [@Gfactor](#): > > 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.firstamendmentcenter.org/speech/arts/topic.aspx?topic=son_of_sam;) [http://www.cofad1.state.az.us/opinionfiles/CV/CV030512.pdf](http://www.cofad1.state.az.us/opinionfiles/CV/CV030512.pdf) (pdf) 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](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](http://www.firstamendmentcenter.org/Speech/arts/topic.aspx?topic=son_of_sam) In other words, in the paragraph quoted above, I got nothing right. ---
**Author:** ![Gringo\_Miami](https://avatars.discourse-cdn.com/v4/letter/g/f17d59/32.png) [@Gringo\_Miami](https://boards.straightdope.com/u/Gringo_Miami)\ **Post date:** [February 15, 2006, 9:38pm UTC](https://boards.straightdope.com/t/criminals-profit-from-crime/344614/10 "2006-02-15T21:38:35Z")
The last cite is particularly intriguing: > [@firstamendmentcenter.org](#): > > Conclusion > If the Nevada Supreme Court, which is expected to rule in Seres v. Lerner later this year, strikes down that state’s Son of Sam law, it could very well sound the death knell for Son of Sam laws across the country. The push for restitution for crime victims will likely focus on general civil forfeiture actions or traditional tort suits against the criminals. More states may extend the statute of limitations period for such lawsuits. What remains evident, however, is that states must clear high First Amendment hurdles before singling out the expressive works of criminals based on the content of their speech. 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. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [February 15, 2006, 9:50pm UTC](https://boards.straightdope.com/t/criminals-profit-from-crime/344614/11 "2006-02-15T21:50:13Z")
> [@](#): > > In contrast, Tennessee targets “all income, from whatever source derived, which is owing to the defendant, or representative or assignee of the defendant, after the date of the crime.”(3) 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? ---
**Author:** ![Gringo\_Miami](https://avatars.discourse-cdn.com/v4/letter/g/f17d59/32.png) [@Gringo\_Miami](https://boards.straightdope.com/u/Gringo_Miami)\ **Post date:** [February 15, 2006, 9:55pm UTC](https://boards.straightdope.com/t/criminals-profit-from-crime/344614/12 "2006-02-15T21:55:08Z")
> [@Chronos](#): > > 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? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [February 15, 2006, 10:17pm UTC](https://boards.straightdope.com/t/criminals-profit-from-crime/344614/13 "2006-02-15T22:17:30Z")
> [@Chronos](#): > > 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? It looks like it really is that draconian: > [@](#): > > 29-13-403. Defendant’s income - Collection - Deposit. > > (a) (1) The attorney general and reporter shall collect all income, from whatever source derived, which is owing to the defendant, or representative or assignee of the defendant, after the date of the crime. > > (2) If the district attorney general of the district in which a defendant’s conviction occurred, or any district attorney general, has or becomes aware of any information concerning income that is in such defendant’s possession or is owing to such defendant, it shall be the duty of such district attorney general to notify the attorney general and reporter of such information. > > (3) Any such district attorney general who has or becomes aware of information concerning a defendant’s income as described in subdivision (a)(2) shall also assist and work with the attorney general and reporter in locating and collecting such income. > > (b) The attorney general and reporter shall deposit the moneys collected in an interest-bearing escrow account in the name of the defendant. The moneys shall be payable to the victim or victims of the crime committed by the defendant. The moneys shall only be payable if the victim, or legal representative of the victim’s estate, brings a civil action in a court of competent jurisdiction for money damages against the defendant within three (3) years from the date of the crime, subject to § 29-13-404. [http://198.187.128.12/tennessee/lpext.dll/Infobase/130a1/13687/137dd/137f2?fn=document-frame.htm&f=templates](http://198.187.128.12/tennessee/lpext.dll/Infobase/130a1/13687/137dd/137f2?fn=document-frame.htm&f=templates) 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](http://www4.law.cornell.edu/uscode/html/uscode15/usc_sup_01_15_10_41_20_II.html) Specifically: > [@15 U.S.C. § 1672](#): > > (a) The term “earnings” means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program. > (b) The term “disposable earnings” means that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld. > (c) The term “garnishment” means any legal or equitable procedure through which the earnings of any individual are required to be withheld for payment of any debt. > [@15 U.S.C. § 1673](#): > > (a) Maximum allowable garnishment > Except as provided in subsection (b) of this section and in section 1675 of this title, the maximum part of the aggregate disposable earnings of an individual for any workweek which is subjected to garnishment may not exceed > (1) 25 per centum of his disposable earnings for that week, or > (2) the amount by which his disposable earnings for that week exceed thirty times the Federal minimum hourly wage prescribed by section 206 (a)(1) of title 29 in effect at the time the earnings are payable, > whichever is less. In the case of earnings for any pay period other than a week, the Secretary of Labor shall by regulation prescribe a multiple of the Federal minimum hourly wage equivalent in effect to that set forth in paragraph (2). > **[15 U.S. Code § 1673 - Restriction on garnishment](https://www.law.cornell.edu/uscode/text/15/1673)** 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. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [February 16, 2006, 12:56am UTC](https://boards.straightdope.com/t/criminals-profit-from-crime/344614/14 "2006-02-16T00:56:35Z")
> [@](#): > > they’d get about 10% of your net pay. 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.” > **[Retired Site | PBS](https://www.pbs.org/retired-site/)** > > This Content is No Longer Available 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](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](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. ---
**Author:** ![Una\_Persson](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/una_persson/32/346_2.png) [@Una\_Persson](https://boards.straightdope.com/u/Una_Persson)\ **Post date:** [February 16, 2006, 1:34am UTC](https://boards.straightdope.com/t/criminals-profit-from-crime/344614/15 "2006-02-16T01:34:26Z")
Well, I for one am impressed with your Report and your follow-ups. ---
**Author:** ![Gringo\_Miami](https://avatars.discourse-cdn.com/v4/letter/g/f17d59/32.png) [@Gringo\_Miami](https://boards.straightdope.com/u/Gringo_Miami)\ **Post date:** [February 16, 2006, 2:14am UTC](https://boards.straightdope.com/t/criminals-profit-from-crime/344614/16 "2006-02-16T02:14:57Z")
Gentlemen and Ladies We are abusing a very good adjective here. According to [Dictionary.com](http://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”? > [@courttv.com](#): > > Simpson, who reportedly draws $25,000 a month from the pension, claimed that his NFL pension was exempt from the wrongful death award payments. [Entire article](http://www.courttv.com/casefiles/simpson/ojsimpson.html) 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. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [February 16, 2006, 4:19am UTC](https://boards.straightdope.com/t/criminals-profit-from-crime/344614/17 "2006-02-16T04:19:00Z")
> [@](#): > > 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. 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/9701/26/simpson/) > [@](#): > > Such pensions are exempt from civil court judgments, although any money Simpson earns would be seized immediately by the court. It’s not clear if that applies to a lawyer-referral service Simpson has endorsed in a commercial. Terms of his deal were not available. [http://www.cnn.com/US/9906/11/simpson.anniversary/](http://www.cnn.com/US/9906/11/simpson.anniversary/) > [@](#): > > In the past, legal experts have told CNN that pension funds in California are exempt from civil judgments. [Goldman won’t go after Simpson’s pension](http://www.cnn.com/US/9708/28/simpson.pension/index.html) (apparently Goldman’s lawyers reached the same conclusion). > [@](#): > > Public records list two funds for O.J. Simpson Enterprises Incorporated – a “profit sharing trust” and a “money purchase pension fund.” [http://www.cnn.com/US/9701/26/simpson/index.html](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](http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=0595283635+0+0+0&WAISaction=retrieve) _And see_, [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=9th&navby=case&no=9455672&exact=1](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). > [@Una Persson](#): > > Well, I for one am impressed with your Report and your follow-ups. > [@aldiboronti](#): > > Yes, it’s an excellent, well-sourced report. > [@Gringo\_Miami](#): > > I had read gfactors report and found it VERY well written and well documented. > [@C K Dexter Haven](#): > > 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...inalprofit.html](http://www.straightdope.com/mailbag...inalprofit.html) Thanks all. > [@Gringo\_Miami](#): > > which States have passed these “criminals can not profit” laws[?] I already answered the other part of the question. Here’s what I have on this part: > [@](#): > > Forty-three other states passed similar laws, as did the federal government. [http://archives.cjr.org/year/95/5/jamal.asp](http://archives.cjr.org/year/95/5/jamal.asp) [Massachusetts high court knocks down ‘Son of Sam’ bill](http://www.firstamendmentcenter.org/news.aspx?id=4117) (Ok. This is on the other part, but I just found it). > [@](#): > > Similar laws in California and Washington have also been found to be unconstitutional. [Yates story could test state’s ban on profiting from crime](http://www.firstamendmentcenter.org/analysis.aspx?id=380) (this one too) > [@](#): > > The overwhelming majority of states now also have similar laws. [When Crime Pays, Who Should Get the Money? The Suit To Freeze Scott Peterson’s Profits From the Sale of His Story](http://writ.news.findlaw.com/hilden/20040302.html) 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. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [February 16, 2006, 4:52am UTC](https://boards.straightdope.com/t/criminals-profit-from-crime/344614/18 "2006-02-16T04:52:39Z")
I \*knew \*I had seen this out there: [‘Son of Sam’ statutes: federal and state summary](http://www.freedomforum.org/packages/first/SonOfSam/index.htm) (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: > [@US Attorneys' Manual](#): > > Although the holding in Simon & Schuster was explicitly limited to New York’s “Son of Sam” law, the decision appears to leave little doubt, if any, about the unconstitutionality of 18 U.S.C. §§ 3681 and 3682 and similar state “Son of Sam” laws that single out the proceeds of speech concerning a crime committed by the speaker for victim compensation without also targeting the other assets of the criminal for that purpose. In light of Simon & Schuster, some courts have relied on restitution orders and fines where convicted defendants appeared likely to receive proceeds from the sale of their stories about their crimes. See United States v. Jackson, 978 F.2d 903, 915 (5th Cir. 1992), cert. denied, 508 U.S. 945, 113 S.Ct. 2429 (1993), and cert. denied, 509 U.S. 930, 113 S.Ct. 3055 (1993) (under Simon & Schuster, district court cannot limit a restitution order solely to the income the defendants earn on speech associated with their criminal activities); United States v. Branch, 91 F.3d 699 (5th Cir. 1996) (same); United States v. Seale, 20 F.3d 1279, 1285 n.7 (3d Cir. 1994) (dicta that Simon and Schuster does not prohibit fine that includes proceeds of expressive activity relating to crime, but rather prohibits the singling out of those proceeds for special treatment while ignoring other assets.) [http://www.usdoj.gov/usao/eousa/foia\_reading\_room/usam/title9/crm01105.htm](http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm01105.htm) 😃 ---
**Author:** ![Gringo\_Miami](https://avatars.discourse-cdn.com/v4/letter/g/f17d59/32.png) [@Gringo\_Miami](https://boards.straightdope.com/u/Gringo_Miami)\ **Post date:** [February 16, 2006, 1:44pm UTC](https://boards.straightdope.com/t/criminals-profit-from-crime/344614/19 "2006-02-16T13:44:35Z")
> [@Gfactor](#): > > 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. 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? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [February 16, 2006, 2:58pm UTC](https://boards.straightdope.com/t/criminals-profit-from-crime/344614/20 "2006-02-16T14:58:48Z")
> [@Gringo\_Miami](#): > > 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: > [@](#): > > 29-13-407. Return of funds to defendant. > > (a) The attorney general and reporter immediately shall pay over to the defendant all of the funds in the escrow account: > > (1) Upon a showing by the defendant, or representative of the defendant, that three (3) years have elapsed from the date the escrow account has been established, and no civil actions are pending against the defendant; or > > (2) Upon disposition of the criminal charges favorable to the defendant. > > (b) If the defendant fails to make a showing under subdivision (a)(1) to the attorney general and reporter that the limitations period has expired, within six (6) months after the expiration of the period, the attorney general and reporter shall turn over all moneys in the escrow account to the criminal injuries compensation fund of this state. [http://198.187.128.12/tennessee/lpext.dll/Infobase/130a1/13687/137dd/1380e?fn=document-frame.htm&f=templates](http://198.187.128.12/tennessee/lpext.dll/Infobase/130a1/13687/137dd/1380e?fn=document-frame.htm&f=templates) > [@](#): > > 29-13-409. Failure by defendant to establish claim for return of funds. > > Upon a showing by the defendant that three (3) years have passed since the date the escrow account was established, and that all civil judgments against the defendant have been satisfied, all remaining funds from the escrow account shall be paid to the defendant. If the defendant fails to make such a showing within six (6) months after the expiration of the limitation period, the attorney general and reporter shall turn over the remaining moneys in the escrow account to the criminal injuries compensation fund established by § 29-13-101. [http://198.187.128.12/tennessee/lpext.dll/Infobase/130a1/13687/137dd/1381b?fn=document-frame.htm&f=templates](http://198.187.128.12/tennessee/lpext.dll/Infobase/130a1/13687/137dd/1381b?fn=document-frame.htm&f=templates) 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. [Next page](https://boards.straightdope.com/t/criminals-profit-from-crime/344614.md?page=2)