Son of Sam laws
New York wrote its law the day after David Berkowitz was arrested, and the Supreme Court struck it down fourteen years later — not because compensating victims is illegitimate, but because a statute that taxes speech by its subject reaches Thoreau and Saint Augustine too. Florida's version, from the same year, is still in the statute book.
New York amended its crime-victim compensation law on August 11, 1977 — the day after David Berkowitz was arrested. The legislature's concern was that publishers would pay large sums for his account of the killings while the people he had harmed received nothing. The statute required that any income an accused or convicted person earned from a work describing their crime be paid to the state Crime Victims Board and held in escrow for five years for the benefit of victims.
Forty-odd states copied it. The name stuck. And the original law was never actually used against Berkowitz, who was found to have signed no such contract.
Fourteen years later the Supreme Court struck it down — unanimously, and not on the ground people expect. Nobody argued that victims should not be compensated. The problem was the mechanism.
Simon & Schuster v. Members of the New York State Crime Victims Board
The dispute did not arise from a serial killer's memoir. It arose from Wiseguy, Nicholas Pileggi's 1986 book about the organised-crime career of Henry Hill, later filmed as Goodfellas. The Crime Victims Board determined that the payments to Hill fell within the statute. Simon & Schuster sued.
In Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board, 502 U.S. 105, decided December 10, 1991, the Court held the statute inconsistent with the First Amendment. Justice O'Connor wrote for the Court; Justices Blackmun and Kennedy concurred in the judgment; Justice Thomas took no part. Nobody dissented.
The reasoning has two moves. First: a statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech — and this one singled out income derived from expression about crime for treatment applied to no other income and no other speech. Second: the state's interest in compensating victims from the fruits of crime is compelling, but the statute was not narrowly tailored. It reached any work on any subject in which the author expressed thoughts about a crime, however tangentially, and reached authors who had never been charged with anything and merely admitted to an offence.
The Court's examples did the work. On the statute's terms it would have reached The Autobiography of Malcolm X, Thoreau's Civil Disobedience, and the Confessions of Saint Augustine. A law that captures Saint Augustine is not narrowly tailored to anything.
Take the money, not the manuscript
The lesson legislatures drew was straightforward: stop writing statutes about books, and write statutes about money.
New York rewrote its law, first in 1992 and then more thoroughly in 2001. The current scheme does not single out proceeds from telling the story. It requires notice to the state's victim services office when a convicted person receives $10,000 or more from virtually any source — a lottery win, an inheritance, a personal-injury settlement, a book deal, it does not matter — and it gives victims an extended window in which to bring a civil action against those funds. Because it targets profit rather than speech about crime, it has held up where the original did not.
California's version was struck down by that state's supreme court in 2002, in a case arising from the 1963 kidnapping of Frank Sinatra Jr. Several other states rewrote rather than defend.
There is still a federal Son of Sam statute, and it is narrower than the New York original. 18 U.S.C. §3681 lets a court, on the US attorney's motion, order special forfeiture of proceeds a defendant receives from a contract relating to a depiction of the crime, where the conviction is for espionage or an offence resulting in physical harm to an individual. The money goes into escrow in the Crime Victims Fund for five years, during which victims may execute judgments against it; up to 20% may be released with court approval for legal representation. After five years the court directs final disposition.
In practice, the mechanism that actually moves money to victims is not a Son of Sam law at all. It is restitution, ordered as part of the sentence, enforceable as a civil judgment, and — under 18 U.S.C. §3613(b) in the federal system — expressly binding on the defendant's estate after death.
What happens when the storyteller dies
This is where a rule about publishing contracts becomes a probate problem, and it happens more often than the tidy version suggests. Royalties, option payments and licence fees outlive the person who earned them. A film gets made a decade after the death. A book stays in print.
Three things follow, and they are not intuitive.
- A lien that attached during life follows the money. Florida's statute creates a priority lien in favour of the state on proceeds “payable to a convicted felon or their designee” from an account of the crime, attaching on conviction. Death changes who receives the payment; it does not remove the encumbrance on it.
- A restitution order does not die with the defendant. In the federal system 18 U.S.C. §3613(b) says so in terms: on the death of a person ordered to pay restitution, the estate is responsible for the unpaid balance, and the lien continues until the estate receives a written release.
- A victim's civil claim runs on probate deadlines, not criminal ones. Once the defendant is dead, the claim is a claim against an estate, and it is barred on the estate's timetable — in Florida, §733.702 and §733.710 — no matter how strong it is.
There is a mirror-image problem the statutes handle badly, which is the estate on the other side. Florida's restitution statute, §775.089, defines the victim to include the victim's estate if the victim is deceased, and the next of kin. So a restitution obligation can run from one estate to another, with two personal representatives and no living party on either side of it.
Timeline
- Aug 11, 1977New York amends its crime victim compensation law the day after David Berkowitz's arrest, creating the original Son of Sam law.
- 1977Florida enacts its own version, chapter 77-45, now Fla. Stat. §944.512.
- 1986Simon & Schuster publishes Wiseguy, Nicholas Pileggi's account of Henry Hill. The Crime Victims Board determines the payments fall within the statute.
- Dec 10, 1991Simon & Schuster v. Members of the New York State Crime Victims Board, 502 U.S. 105 — the statute is held inconsistent with the First Amendment. O'Connor, J., 8–0, Thomas, J. taking no part.
- 1992New York amends the law for the first time in response.
- 2001New York rewrites it to reach funds of a convicted person from any source above $10,000, with notice to victim services and an extended limitation period for a civil action.
- 2002The California Supreme Court strikes down that state's version, in a case arising from the 1963 kidnapping of Frank Sinatra Jr.
What actually went wrong
- The statute was drafted about a subject, not about money. Taxing income because of what the speech is about is a content-based burden, and it invites the strictest review there is.
- Overinclusion, not motive, killed it. New York's compelling interest in compensating victims was accepted. The law failed because it also reached memoirists who were never charged and works that merely mention an offence.
- Escrow is not compensation. The original scheme held money for five years for victims who then had to find it, prove a claim, and sue in time. Money parked is not money paid.
- Restitution does the job better. A restitution order is entered at sentencing, enforceable as a civil judgment, and under federal law it survives the defendant's death and stays a lien until released in writing.
- Nobody drafted for the death of the author. Royalties outlive people. Liens, restitution orders and probate deadlines all keep running, and they run on three different calendars.
Would it have gone that way in Florida?
Yes — Florida has a Son of Sam law. It is §944.512, it dates from 1977, and it is written the way the statute the Supreme Court struck down was written.
Fla. Stat. §944.512 is titled “State lien on proceeds from literary or other type of account of crime for which convicted.” Subsection (1) creates a priority lien in favour of the state on royalties, commissions, sale proceeds or any valuable consideration payable to a convicted felon, or to that person's designee, from any literary, cinematic, or other account relating to the crime. “Convicted” is defined to include a guilty verdict, a guilty plea, or a plea of nolo contendere, regardless of adjudication. The lien attaches on conviction, and while an appeal is pending the funds sit in the Department of Legal Affairs' Revolving Escrow Trust Fund.
Subsection (2) then splits the money in a way worth reading twice. Twenty-five per cent goes to the convicted person's dependents — or, if there are none, to the Crimes Compensation Trust Fund. Twenty-five per cent goes to the victims or their dependents, for damages the court determines. Court costs and the costs of incarceration come next. Whatever is left goes to the Crimes Compensation Trust Fund. Subsection (3) lets a judge impose a similar lien on a settlement the offender receives for injuries sustained during the crime or while fleeing.
The statute's history line begins at chapter 77-45 — 1977, the same year as New York's — and its later entries are amendments in 1979, 1988, 1990, 1997 and 2001. It is a content-based provision: the lien attaches because the account is of the crime. That is precisely the structure Simon & Schuster analysed, and any court applying §944.512 to a book, a film or an interview would have to run that analysis, with the state carrying the burden of showing narrow tailoring. This page states what the statute says. It does not predict what a court would do with it.
The routes that do not have that problem. A victim in Florida has three that are not about speech at all. First, restitution under §775.089: the court must order it unless there are clear and compelling reasons not to, it covers damage or loss caused directly or indirectly by the offence, it is enforceable as a civil judgment, it becomes a lien on the defendant's real estate, it bears interest, and it expressly includes the victim's estate if the victim is deceased. Second, an ordinary civil action for the underlying wrong. Third, the Chapter 960 Crimes Compensation Trust Fund, which pays defined categories of loss without waiting for anyone to be solvent.
When the defendant dies, all of it becomes a probate problem. §46.021 keeps the civil cause of action alive against the estate. §733.702 then bars a claim not filed by the later of 3 months after first publication of the notice to creditors or 30 days after service, and §733.710 bars any claim against the decedent 2 years after the date of death, without extension. A victim holding a judgment who does not file a claim in the probate loses it to a deadline rather than to a defence.
The uncomfortable Florida point, stated straight. Fla. Const. Art. X §4 exempts a Florida homestead from forced sale by creditors with no dollar cap — the limits are acreage only — and it descends to heirs still exempt. A judgment creditor, including a crime victim holding a restitution lien under §775.089, generally cannot force the sale of a Florida homestead. Judgment debtors have relied on that deliberately for well over a century, and it is one reason a victim with a paper judgment can end up with nothing. It is a fair statement of Florida law, not an endorsement of the tactic, and it has limits: it does not reach non-homestead assets, and it does not bind the federal government, whose liens attach notwithstanding a state exemption.
What to actually do. If you are a victim or a victim's family and the person who harmed you has died, do not wait for a book deal or a documentary. Find the probate file, note the date of the first publication of the notice to creditors, and file a statement of claim inside the §733.702 window — a civil suit alone is not a claim in the estate. If there is a restitution order, record it and file it as a claim too.
What people ask us about this.
Further reading
Third-party sites. Not ours, not endorsed, not kept current by us — just the places worth going next.
Sources
- Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board, 502 U.S. 105 (1991) — Cornell Legal Information Institute
- Son of Sam law — Wikipedia
- Son of Sam laws: do criminals have a right to profit from their crimes? — Freedom Forum
- Fla. Stat. §944.512 — State lien on proceeds from literary or other type of account of crime for which convicted — The Florida Senate
- Fla. Stat. §775.089 — Restitution — The Florida Senate
- 18 U.S.C. §3681 — Order of special forfeiture — Cornell Legal Information Institute
- Criminal Resource Manual 1104 — summary of the special forfeiture statute — US Department of Justice
- 18 U.S.C. §3613 — Civil remedies for satisfaction of an unpaid fine — Cornell Legal Information Institute
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