How are criminals prevented from profiting from their crimes?
February 14, 2006
Dear Straight Dope:
We always hear that "criminals are not allowed to profit from their crimes." How do the authorities make sure this doesn't happen? If a criminal writes a book about his crimes, who gets the money? What if he sells his personal items, which may have increased in value due to his notoriety? What if he writes a book, does a TV appearance, or is interviewed for a newspaper or magazine story many years after he is released from prison? And what about O.J.? Since he wasn't convicted of any crime, could he keep the profits if he wrote a book about how he killed Nicole?
— Anonymous, Chicago
The rule isn't universal, but judges generally do try to prevent people from profiting from their own wrongs. A classic case in this respect is Riggs v. Palmer, 22 N.E. 188 (1889). 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." The court elaborated, "No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime. These maxims are dictated by public policy, have their foundation in universal law administered in all civilized countries, and have nowhere been superseded by statutes." In other words, the court decided that public policy required it to read the statute to bar Palmer's claim.
The Riggs court didn't come up with this idea on its own. The principle is much older and is still around today, although most states have codified it in statutes. For instance, Scott Peterson, a convicted killer, was recently prevented from receiving benefits under his wife's life insurance policy by California Probate Code section 252:
A named beneficiary of a bond, life insurance policy, or other contractual arrangement who feloniously and intentionally kills the principal obligee or the person upon whose life the policy is issued is not entitled to any benefit under the bond, policy, or other contractual arrangement, and it becomes payable as though the killer had predeceased the decedent.
This is one form of what is called a "slayer statute." California has statutes preventing killers from inheriting from their victims, obtaining title to land by murdering a joint tenant, or receiving life insurance benefits from policies insuring their victims, and includes a catchall for "any case not described . . . in which one person feloniously and intentionally kills another." In such cases, the statute says, "any acquisition of property, interest, or benefit by the killer as a result of the killing of the decedent shall be treated in accordance with the principles of this part." Every state has a similar slayer statute or a common-law slayer rule, according to research discussed by the Supreme Court of Alabama in Plumley v. Bledsoe (2005).
More recently, states have enacted laws entitling crime victims to the profits from stories criminals tell about their crimes. States enacted these "Son of Sam" laws after rumors that the serial killer known by that name, David Berkowitz, had received financial offers from publishers. Son of Sam laws were designed to prevent killers from profiting by selling their stories and to compensate victims. But most of the statutes are probably unconstitutional.
The Supreme Court found that New York's Son of Sam statute violated the First Amendment in Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. 105 (1991). The Court found that New York had a legitimate interest in "ensuring that criminals do not profit from their crimes," citing Riggs v. Palmer, and also in "compensating victims from the fruits of the crime." But it concluded that the statute in question was too broad. "It would have escrowed payment for such works as The Autobiography of Malcolm X, which describes crimes committed by the civil rights leader before he became a public figure; Civil Disobedience, in which Thoreau acknowledges his refusal to pay taxes and recalls his experience in jail; and even the Confessions of Saint Augustine, in which the author laments 'my past foulness and the carnal corruptions of my soul,' one instance of which involved the theft of pears from a neighboring vineyard." The Court concluded that "the Son of Sam law clearly reaches a wide range of literature that does not enable a criminal to profit from his crime while a victim remains uncompensated." Because the statute singled out speech based on content and was not narrowly tailored to compelling state interests, the Court concluded that the statute violated the First Amendment.
The California Supreme Court struck down California's Son of Sam law in 2002, applying logic similar to Simon & Schuster in Keenan v. Superior Court. In light of Simon & Schuster and Keenan, it seems likely few of the original Son of Sam laws would withstand a constitutional challenge. According to the National Center for Victims of Crime, "[n]early one-third of all states have not altered their notoriety-for-profit statutes following the Simon & Schuster ruling. Some states that have amended their laws have not addressed the Supreme Court's concerns. However, a substantial number of states have attempted to revise their laws to make them constitutional." 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.
Of course, earning money and keeping it are two different things. As the Simon & Schuster court noted, criminals remain liable to victims and their heirs. The cases of O.J. and Robert Blake show that a person can be acquitted of a crime but still be held civilly liable. If the victims fear that the killer will dissipate assets before they can get a judgment, they can try to get an order freezing those assets (this is called pre-judgment attachment). So even in cases where criminals elude statutes meant to keep them from profiting, their victims and the victims' families can still see to it that they don't.
Riggs v. Palmer: http://www.cooter-ulen.com/cases.htm#Riggs%20v.%20Palmer
California Slayer Rules: http://caselaw.lp.findlaw.com/
Plumley v. Bledsoe: http://www.state.wv.us/wvsca/docs/Spring05/31764.htm#Footnote4
Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. 105 (1991): http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/5
Keenan v. Superior Court: http://login.findlaw.com/scripts/callaw?dest=ca/cal4th/slip/2002/s080284.html
"Notoriety for Profit/'Son of Sam' Legislation," National Center for Victims of Crime: http://www.ncvc.org/ncvc/main.aspx?dbName=DocumentViewer&DocumentID=32469
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
"Blake Liable for Wife's Murder," Los Angeles Times, November 18, 2005, latimes.com: http://www.latimes.com/news/local/la-111805blake_lat,0,7926358.story?coll=la-home-headlines
"Jury: O.J. is Liable," cnn.com: http://www.cnn.com/US/OJ/simpson.civ