Criminal Justice Insider

In the today’s world of endless “true crime” podcasts, streaming documentaries, and crime-based miniseries, there is more public interest in crime than at any time in recent memory. With that media torrent comes new ways that a criminal can potentially profit from his or her crimes. It is commonly believed that laws enacted by nearly every state, colloquially referred to as “Son of Sam” laws, prohibit criminals from profiting from their crimes. While these laws satisfy the public thirst for justice and fairness, but in reality, they have little effect. These laws rarely apply, are difficult to enforce and often fail to survive constitutional scrutiny.

The first “Son of Sam” law dates back to the mid-1970’s when David Berkowitz, the Son of Sam killer, terrorized New York. After he was arrested, there was speculation that he would attempt to sell the rights to his story. Accordingly, the New York State legislature preemptively passed Executive Law Sec. 632-a which purported to outlaw any attempt by a defendant to profit from his crime.

This original version of the law was ultimately struck down by the Supreme Court in Simon & Schuster, Inc v. Members of the N.Y. Crime Victims Board, 502 U.S. 105 (1991). That case dealt with attempts to publish the story of the mobster Henry Hill, which became the basis of the movie Goodfellas. The Court ruled that New York’s iteration of the “Son of Sam” law was an unconstitutional infringement of the First Amendment rights to freedom of speech. Moreover, the Court found the law, as enacted, could be applied to prevent important historical and political narratives from reaching the public, including the Autobiography of Malcom X and Civil Disobedience by Henry Thoreau.

Undeterred, New York went through several more iterations of the law until, in 2001, New York passed its current version. This version of the law, again codified as Executive Law Sec. 632-a, no longer bans attempts by a defendant to profit from his or her crimes. Instead, it requires that any person or entity that agrees to pay a defendant more than $10,000 for unique knowledge gained in the commission of the crime has to notify the state of the payment. See Exec Law. Sec. 632-a(2)(a). The law also extends the statute of limitations for victims to sue defendants civilly for damages related to the crime to three years beyond the discovery of the profits. See Exec Law. Sec. 632-a(3).

Notably, this law applies only in limited instances and only to certain specified categories of crime, which include violent felony offenses, class B felonies, grand larceny in the fourth degree, and criminal possession of stolen property in the second degree. See Exec Law Sec. 632-a(1)(e)(i). It also only applies to defendants who are under the aegis of the criminal justice system. This means the defendant must be a present inmate or is currently on probation or post-release supervision. Alternatively, the statute applies when the money was gained while the defendant was in the criminal justice system, and not more than three years have passed. Convictions for federal crimes do not fall under the statute. The defendant must have been convicted of a crime as defined in the state penal law and not a federal statute. Of course, some of the highest profile criminal prosecutions occur at the federal level.

The “Son of Sam” laws have a reputation for ensuring that convicted felons do not profit from their crimes. However, that reputation is, in fact, undeserved. In reality, they do little to limit the ability of a convicted defendant from profiting from his or her criminal acts. Such laws apply only in limited circumstances, only apply to those who are still within the criminal justice system, and do not apply to federal crimes.

For more information on the topic discussed, contact:

• Adam M. Felsenstein  |  felsenstein@thsh.com  |  212-508-7533