NYLS Law Review Vols. 22-63 (1976-2019)

Volume 48 Issue 3 In Memoriam, W. Bernard Richland Article 7 (1909-2003)

January 2004

Investigating New York’s Son of Sam Law: Problems with the Recent Extension of Tort Liability for People Convicted of Crimes

Jessica Yager New York University School of Law

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Recommended Citation Jessica Yager, Investigating New York’s Son of Sam Law: Problems with the Recent Extension of Tort Liability for People Convicted of Crimes, 48 N.Y.L. SCH. L. REV. (2003-2004).

This Article is brought to you for free and open access by DigitalCommons@NYLS. It has been accepted for inclusion in NYLS Law Review by an authorized editor of DigitalCommons@NYLS. 18314_nlr_48-3 Sheet No. 29 Side A 04/29/2004 08:40:46 R R R R R R R R R R R R R R R R R R R R .... 458 ..... 439 ..... 467 ...... 454 ...... 438 ...... 462 ...... 444 ...... 465 ...... 467 ...... 441 * ...... 449 ...... 449 ...... 451 ONTENTS AGER ...... 447 ...... 441 Y C 433 ...... 457 ESSICA J ABLE OF T ...... 445 ...... 438 ...... 434 ...... 457 York’s Rejection of the Anti-Profit Model York’s Rejection of the Anti-Profit “Funds of a Convicted Person” Provision is Added are Now Available Survey 1. Post –1992Challenges 2. Post-2001 Challenges 3. Potential for Success in the Courts 1. New Expansion of the Statute of Limitations: 2. Expansion of Available Funds 3. The Targeted Population 1. Restitution & Reparation 1.to Profits, the Changes: No Longer Limited 2. All Assets Changes: Under Both Provisions, A. New York v. EVERYONE ELSE: A Fifty State B. Law Conflicts with New York Compensation A. The Son of Sam Law is Born 1977: B.of Sam Law & The Supreme Court The Son A. New York Tries Again 1992: B. York Goes Too Far 2001: New C. Challenges in the Courts LIABILITY FOR PEOPLE CONVICTED OF CRIMES CONVICTED FOR PEOPLE LIABILITY * Clerk to the Honorable Napoleon A. Jones Jr. of the United States District Law INVESTIGATING NEW YORK’S 2001 SON OF SAM LAW: OF SAM 2001 SON YORK’S NEW INVESTIGATING I. Introduction PROBLEMS WITH THE RECENT EXTENSION OF TORT RECENT EXTENSION WITH THE PROBLEMS II. The History IV. Problems with the Law III. State of the Law Current M K Court for the Southern District of California. J.D. New York University School of Law, 2003. and Professor Anthony Thompson for I would like to thank Alexander Reinert their guidance. David Ehrenberg for his help shaping the I would also like to thank ideas presented in this article, as well as for his patience and support. \\server05\productn\N\NLR\48-3\NLR301.txt unknown Seq: 1 16-APR-04 14:00 C Y 18314_nlr_48-3 Sheet No. 29 Side A 04/29/2004 08:40:46 A 04/29/2004 29 Side Sheet No. 18314_nlr_48-3 18314_nlr_48-3 Sheet No. 29 Side B 04/29/2004 08:40:46 R R R R R R R R R R R R M K C Y [Vol. 48 ...... 469 ...... 477 ...... 475 ...... 476 ...... 472 ...... 474 NTRODUCTION ...... 479 ...... 471 I. I ...... 484 Codifying this common law tenet, New York Codifying this common law tenet, 1 ...... 487 a ...... Law 467 Law Restitution/Reparation Son of Sam Law Limitations NEW YORK LAW SCHOOL LAW REVIEW i.ii. Practical Problems Problems of Delay iii. Problems of Fairness a. Restitution/Reparation Overview of b. of Sam Law & Between Son Conflicts a. Traditional Tort v. Statutes of Limitations: b. Expanding the Statute of Problems with Recovery under 2001 Law 1. Recovery. Legal Problem Posed by Expanded 2. 479 Policy Problems Posed by Expanded 2. Tort Law C. Caused by Expansion of Recovery Problems A well-known adage states that crime does not pay.A well-known adage states that Courts 1. Riggs v. Palmer, 115 N.Y. 506 (1889). V. Conclusion have long been enforcing this rule. the high As far back as 1889, shall be permitted to profit by his court of New York held, “no one his own wrong . . . These maxims own fraud, or to take advantage of their foundation in universal law are dictated by public policy, have and have nowhere been su- administered in all civilized countries, perseded by statutes.” 434 \\server05\productn\N\NLR\48-3\NLR301.txt unknown Seq: 2 16-APR-04 14:00 passed the nation’s first anti-notoriety law in 1977, New York Execu- passed the nation’s first anti-notoriety known as the Son of Sam law. tive Law Section 632-a, commonly created by the fame of a notori- Responding to the profit potential create a disincentive to engage in ous serial killer, New York tried to contracts for the sale of crime stories. law operated to enhance The of crimes.existing tort law available to victims the law, once Under were identified, the tort statute of profits from the sale of a story to limitations would reopen, giving the victim another opportunity sue for a judgment to be satisfied from the newly found profits. 18314_nlr_48-3 Sheet No. 29 Side B 04/29/2004 08:40:46 B 04/29/2004 29 Side Sheet No. 18314_nlr_48-3 18314_nlr_48-3 Sheet No. 30 Side A 04/29/2004 08:40:46 3 435 9 These laws have been These laws have amended their laws so amended their laws 8 4 note 128. infra note 128. However, after the ruling, a num- However, after the 7 infra SON OF SAM SON OF Notwithstanding the Supreme Court’s Notwithstanding list 5 See list of statutes , a number of states followed New York’s lead by amend- , a number of states followed New York’s lead similar laws were adopted by states across laws were adopted similar See 2 pp. 484-87. infra , Del. Code Ann. Tit. 11 § 9101 (2001) (finding that it is against public Simon & Schuster discussion See See, e.g. and many states still have laws on the books that explicitly still have laws on the books that and many states 6 In 2001, New York amended its law again.In 2001, New York amended its law provi- An additional While the initial Son of Sam law came up against a Supreme a up against law came of Sam Son the initial While 8. N.Y. Exec. Law §9. 632-a (McKinney 1992). 6. 18 U.S.C. § 3681(a) (permitting the court to order a convicted person to “for- 7. After 5. 2. of the New York State Crime Victims Board, 502 Simon & Schuster v. Members 3. 18 U.S.C. §4. 3681 (2003). Hampshire, North Carolina, and Vermont passed Every state except New M K policy to let criminals profit from the sale of their stories); Wash. Rev. Code Ann. policy to let criminals profit from the sale § a compelling state interest in compensating the victims of 7.68.300 (2002) (finding profiting from their crimes. RCW 7.68.310 crime and in preventing criminals from both of these interests). through 7.68.340 are intended to advance to be received by that defendant, or a trans- feit all or any part of proceeds received or relating to a depiction of such crime in a feree of that defendant, from a contract or television production, or live entertain- movie, book, newspaper, magazine, radio defendant’s thoughts opinions, or emotions ment of any kind, or an expression of that regarding such crime”). ing their laws to cover proceeds of the crime, thereby curing the constitutional defect. However, a number of states still have laws that directly target speech, and are therefore probably still unconstitutional. U.S. 105 (1991). some form of antiprofit law. sion was added to the law that drastically altered its scope.sion was added to the law that drastically The new crimes to sue the perpetrators in provision allows victims of certain is under the watch of the criminal tort for as long as the perpetrator 2004] on First unconstitutional was held and ultimately Court challenge grounds, Amendment criminals to prohibit laws designed states adopted and forty-seven the sale of their stories. from profiting from \\server05\productn\N\NLR\48-3\NLR301.txt unknown Seq: 3 16-APR-04 14:00 outlaw the sale of crime stories. outlaw the sale of the nation. federal government York’s lead, the Following New holding that New York’s law unconstitutionally targeted the First York’s law unconstitutionally holding that New federal govern- of the convicted person, the Amendment rights ment ber of states, starting with New York in 1992, ber of states, starting repeatedly heralded as necessary and moral, justified by the dual as necessary and moral, justified repeatedly heralded crime and facilitat- of avoiding the glorification of public interests ing victim’s compensation. that the extended tort recovery could be sought not only from tort recovery could be sought that the extended other profits of the crime. storytelling profits but also from C Y 18314_nlr_48-3 Sheet No. 30 Side A 04/29/2004 08:40:46 A 04/29/2004 30 Side Sheet No. 18314_nlr_48-3 18314_nlr_48-3 Sheet No. 30 Side B 04/29/2004 08:40:46 M K C Y [Vol. 48 discussion of the policy problems this See NEW YORK LAW SCHOOL LAW REVIEW Unlike the existing provision that only allowed re- allowed that only provision existing the Unlike 10 p. 484. Act of June 25, 2001, ch. 62, 2001 McKinney’s Sess. Laws of N.Y. 224 (Mc- Act of June 25, 2001, ch. 62, 2001 McKinney’s See infra This addition to the law unfairly and irrationally targets the law unfairly and irrationally This addition to least, the State should return This paper will show that, at very 10. creates Kinney Supp. 2001-2002). the funds of people in prison, on parole, and The law targets on probation. crimes for which people in New York can be There are a number of sentenced to lifetime probation. that there is a class of people for whom This means this law creates a never-ending threat of suit. covery from the profits of the crime, this new provision permits re- new provision the crime, this the profits of covery from person’s assets. of a convicted any and all covery from the With is now far of Sam law New York’s Son of this provision, addition of other states. than the laws more severe with is also inconsistent It laws and its own original rationales. other New York civil penalty not criminal justice system for a harsh tortfeasors in the faced by other tortfeasors.this new provision of the law, a Under far longer than a faces the threat of tort liability criminal tortfeasor of the tort or the Regardless of the nature non-criminal tortfeasor. have liability damages, criminal tortfeasors extent of monetary or a lifetime, heads for years, potentially decades hanging over their of civil liability for tortfeasor faces the threat whereas the average one or two years. provides a major deterrent to In addition, the law meaningfully to society amassing assets, and therefore contributing in many instances. passed specifi- Particularly insidious, the law was rights settlements won by pris- cally to facilitate recovery from civil oners while incarcerated.deter prisoners This law will significantly their rights for abuses they suf- from bringing lawsuits to vindicate hands of the state.fer while in prison, often at the Equally worri- incentives for prison authorities some, the law provides perverse of an inmate’s rights will be the since the direct result of a violation victim under this law.compensation of the prisoner’s This law is the State’s legitimate interest in unfair and unnecessary to achieve for their losses.making sure that victims are compensated The end law since the 2001 additions. result is a less effective and balanced of Sam law.to the 1992 version of the Son amended Son of The of other states as well as the rest Sam law is out of step with the laws scheme.of New York’s victim compensation a host of ethi- It raises prisoners, and distances itself cal questions by specifically targeting the vast expansion of the law. from its original rationale through 436 system. justice \\server05\productn\N\NLR\48-3\NLR301.txt unknown Seq: 4 16-APR-04 14:00 18314_nlr_48-3 Sheet No. 30 Side B 04/29/2004 08:40:46 B 04/29/2004 30 Side Sheet No. 18314_nlr_48-3 18314_nlr_48-3 Sheet No. 31 Side A 04/29/2004 08:40:46 437 SON OF SAM SON OF Section II of this paper will discuss the history of the New York paper will discuss the history of Section II of this M K 2004] con- renewed of in jeopardy entire law put the has amendment The challenge.stitutional First written about the much has been While little atten- Son of Sam law, of New York’s implications Amendment problems and policy other constitutional been given to the tion has the statute.raised by the law defects of other significant It is these highlight.that this paper will there is no published legal To date its effects. the recent amendment and scholarship addressing This is vulnerable to at- particular areas where the law paper identifies of the law can concerned with the impact tack so that advocates issues further. investigate these law. in 1977, it will map the Starting with the law’s origination challenge. through the successful constitutional course of the law the forces shaping help to provide the context for This history will the current law. to note the drastic ways in It is also important the earlier incarnations of the which the current law varies from and in motivating theory.law, both in its substantive effect Section revised in 1992 and then describe III will outline the law as it was the 2001 amendment. legal chal- This section will also consider the amended New York law lenges that have been brought against in the courts.and the likelihood of their success Section IV sug- current Son of Sam law.gests a number of critiques of the First, it similar laws in other states.looks at how the law compares to This 2001 amendment significantly de- fifty state survey reveals that the law created.parts from the model the original other state is as No rights, signifying that the New aggressive in its attack on prisoners’ York law is unnecessarily harsh. consider the This section will also the larger workings of New York’s current law within the context of schemes.victim compensation and civil liability IV will end Section in which the expansion of recovery with a consideration of the ways important legal and policy under the 2001 law raises particularly concerns. the legal and The paper concludes with a summation of and suggests that advocacy efforts policy problems posed by the law, of the law are most likely to highlighting the practical problems bring about change. \\server05\productn\N\NLR\48-3\NLR301.txt unknown Seq: 5 16-APR-04 14:00 C Y 18314_nlr_48-3 Sheet No. 31 Side A 04/29/2004 08:40:46 A 04/29/2004 31 Side Sheet No. 18314_nlr_48-3 18314_nlr_48-3 Sheet No. 31 Side B 04/29/2004 08:40:46 M K C Y 17 14 L. . L. T OURO [Vol. 48 , 17 V , 11 T 16 ISTORY H , Aug. 31, 1977, at A1. HE As the murders went unsolved, As the murders OST 11 . P II. T ASH The first anti-notoriety law of its kind, New The first anti-notoriety law of its 15 New York’s Son of Sam Law: Alive and Well Today , 502 U.S. at 109 (quoting Memorandum of Sen. Emanuel R. § In the end, the law was never ap- 632-a (McKinney 1982). § 632-a(1)(ii) (McKinney 1982). NEW YORK LAW SCHOOL LAW REVIEW AW AW A. is Born Son of Sam Law 1977: The . L . L note 126-28. XEC XEC Outraged and galvanized at the prospect of Berkowitz Outraged and 13 After his capture, Berkowitz attempted to capitalize on his Berkowitz attempted to capitalize After his capture, Beyond Son of Sam: Simon & Schuster, Inc. v. New York State Crime Victims Board, Beyond Son of Sam: Simon & Schuster, Inc. v. Id. See infra Simon & Schuster 12 The original version of the Son of Sam law required any entity The original version of the Son of In 1976 and 1977, David Berkowitz terrorized New York City New York Berkowitz terrorized and 1977, David In 1976 . 321, 325 (1992). . 629, 632 (1995). 12. 13. P. Vargas, Steven 15. 14. E N.Y. 11. Berkowitz Called Incapable Of Standing Trial; 2 Doctors Call Berkowitz David 16. 17. N.Y. E EV EV R R plied to David Berkowitz because he was found unfit to stand trial. Adam Robert plied to David Berkowitz because he was Tschorn, York Executive Law Section 632-A and a Constitutionally Valid Alternative to New Incapable of Standing Trial, W contracting with an accused or convicted person for the details of contracting with an accused or of the contract and deposit the his or her story to submit a copy to the Crime Victim’s Board. proceeds due under the contract The oft-quoted sentiment from the sponsor of the original bill ex- from the sponsor of the The oft-quoted sentiment the law: “It is abhorrent to one’s presses the motivation behind an individual . . . can expect to sense of justice and decency that his story once he is captured receive large sums of money for – other people were injured as a while five people are dead, [and] result of his conduct.” 438 \\server05\productn\N\NLR\48-3\NLR301.txt unknown Seq: 6 16-APR-04 14:00 with a string of violent and random attacks that left six people dead that left six people random attacks of violent and with a string injured. and seven others Gold, reprinted in New York State Legislative Annual, 1977, at 267). Berkowitz gained notoriety through a series of letters he left for the notoriety through a series of letters Berkowitz gained “The Son of media, signed with the pseudonym police and the Sam.” house for the story of his crimes to a publishing fame by selling $75,000. Law §act, New York passed Executive profiting by this 632-a, which prevent criminals known as the Son of Sam law, to has come to be crime stories. the commercial sale of their from profiting from York’s Son of Sam law quickly became a model for other states and York’s Son of Sam law quickly became the federal government. and the fed- Eventually forty-seven states laws. eral government adopted similar 18314_nlr_48-3 Sheet No. 31 Side B 04/29/2004 08:40:46 B 04/29/2004 31 Side Sheet No. 18314_nlr_48-3 18314_nlr_48-3 Sheet No. 32 Side A 04/29/2004 08:40:46 19 20 439 See Simon 279, 282 , detailing OMMENT C The law applied The law 18 EGAL Like Father Like Son? The Con- J. L S ’ OHN The book was published and . J T 22 , 8 S SON OF SAM SON OF Wiseguy: Life in a Mafia Family , 502 U.S. at 112. Eventually, one challenge made its way to the Eventually, one challenge made § 1982). 632-a(1)(ii) (McKinney § 1982). 632-a(10)(b) (McKinney 21 AW AW . L . L Once the book was published, however, the Crime Vic- Once the book was published, however, XEC XEC B. Court The Son of Sam Law & The Supreme 23 . . at 114. , 502 U.S. 105; Children of Bedford, Inc. v. Petromolis, 570 N.Y.S.2d 453 Id Simon & Schuster In 1981, Henry Hill, protected by the anonymity of the witness In 1981, Henry Hill, protected by The original version of the law was only applied ten times. of the law was only applied The original version 23. 22. 21. to the original law. There were four constitutional challenges made 19.20. E N.Y. Michael Lauri & Patricia M. Schaubeck, Andrew 18. E N.Y. M K (1992). & Schuster (1991); Matter of Johnsen, 430 N.Y.S.2d 904 (N.Y. Sup. Ct. 1979); Barrett v. Wotjowicz, 404 N.Y.S.2d 829 (2d Dept. 1979). his exploits as a successful gangster. stitutionality of New York’s Son of Sam Law protection program, contracted with Simon & Schuster for the protection program, contracted right to publish his book, Soon after its passage, New York’s Son of Sam law came under con- Soon after its passage, New York’s stitutional attack. 2004] of the victims to available then made was the account money in The within five a civil action victim brought as long as the the crime of the escrow account. the establishment years of of rules for tort the law provided a different set In other words, stories. who attempted to sell their actions against criminals Where story, the expira- money from the sale of the crime a criminal made did not bar suit. tort statute of limitations tion of the traditional period of of Sam law provided for an extended Instead, the Son of the escrow ac- years from the establishment limitations (five action to win a a victim could bring a tort count) during which the story. collected from the profits from judgment to be \\server05\productn\N\NLR\48-3\NLR301.txt unknown Seq: 7 16-APR-04 14:00 Supreme Court. tim’s Board took action. the Board After reviewing the book, of New York’s Executive Law Sec- deemed it fell within the purview garnered both critical acclaim and popular success, culminating in garnered both critical acclaim and the Academy Award winning film the adaptation of the story into Goodfellas to any person convicted of a crime after a trial or a guilty plea and a trial or a guilty of a crime after convicted to any person the intelligently admitted voluntarily and person who has to “any not prosecuted.” crime for which such person is commission of a C Y 18314_nlr_48-3 Sheet No. 32 Side A 04/29/2004 08:40:46 A 04/29/2004 32 Side Sheet No. 18314_nlr_48-3 18314_nlr_48-3 Sheet No. 32 Side B 04/29/2004 08:40:46 M K C Y [Vol. 48 Simon Simon & 25 , As the Court explained, 26 27 In order for such a regulation to In order for such 28 The Court explained, “[t]he distinc- 32 30 However, it concluded that limiting compensa- However, it concluded that limiting , 502 U.S. at 123. 31 NEW YORK LAW SCHOOL LAW REVIEW The Board ordered Hill to turn over all the money he all the over Hill to turn Board ordered The The Court unanimously held that the law failed this The Court unanimously held that 24 29 at 120. at 118 - 19. at 116. v. Ragland, 481 U.S. 221, 231 at 118 (quoting Arkansas Writers’ Project at 115 (citations omitted). . . 33 Id. Id. Id. Simon & Schuster Id. Id. Id Id. Id First the Court acknowledged that the Son of Sam law was a acknowledged that the Son of Sam First the Court had a compelling interest in The Court held that the State 32. 33. 31. 30. 29. 27. 28. 25. U.S. 105 (1991). 502 26. 24. (1987)). tion to profits only from storytelling was not necessary to achieve tion to profits only from storytelling these compelling interests. strict scrutiny review. content-based regulation of speech and therefore presumptively in- of speech and therefore content-based regulation the First Amendment. consistent with that criminals do not profit compensating victims and in ensuring from their crimes. 440 632-a. tion \\server05\productn\N\NLR\48-3\NLR301.txt unknown Seq: 8 16-APR-04 14:00 tion drawn by the Son of Sam law [between funds from speech and tion drawn by the Son of Sam law to do with the State’s interest in other profits of crime] has nothing crime from criminals to their transferring the proceeds of victims.” be legitimate, “the State must show that its regulation is necessary to be legitimate, “the State must show and is narrowly drawn to achieve serve a compelling state interest that end.” Schuster v. Members of The New York State Crime Victim’s Board New York State Crime Members of The Schuster v. had already received under the contract and ordered Simon & and ordered the contract received under had already to Hill. future funds payable to turn over all Schuster In “[i]t singles out income derived from expressive activity for a bur- income derived from expressive “[i]t singles out is directed only at on no other income, and it den the State places content.” works with a specific & Schuster challenged New York’s Son of Sam law on First Amend- Sam law on First York’s Son of challenged New & Schuster ment grounds. that the case was particularly The Court explained time.noteworthy at the the Federal Government and “Because objectives, the have enacted statutes with similar most of the States and likely to recur.” issue is significant 18314_nlr_48-3 Sheet No. 32 Side B 04/29/2004 08:40:46 B 04/29/2004 32 Side Sheet No. 18314_nlr_48-3 18314_nlr_48-3 Sheet No. 33 Side A 04/29/2004 08:40:46 441 The stat- the State at 123. 39 34 Id. AW 37 L 38 HE T F O The Court concluded: 36 L. 1992, c. 618, § 10, eff. July 24, 1992. TATE S SON OF SAM SON OF repealed by URRENT The Court found that this broad definition The Court found 35 § 632-a, A. 1992: New York Tries Again AW III. C . L XEC [I]n the Son of Sam law, New York has singled out speech [I]n the Son of Sam for a financial burden that it places on a particular subject in- and no other income. The State’s on no other speech is a victims from the fruits of crime terest in compensating the Son of Sam law in not narrowly compelling one, but that objective. As a result, the statute tailored to advance the First Amendment. is inconsistent with Id. Id. Id. The Court also held that the law was not narrowly tailored to tailored not narrowly law was that the held Court also The After the Supreme Court struck down the original Son of Sam After the Supreme Court struck 39. Memorandum of Senator Emmanuel Gold, Governor’s Bill Jacket to L. 1992, 34. 35. 36. Court stated, “[s]hould a prominent figure write his autobiography at the The 37. 38. N.Y. E M K c. 618 at 6. end of his career, and include in an early chapter a brief recollection of having stolen end of his career, and include in an early youthful prank, the Board would control his (in New York) a nearly worthless item as a and would make that income available to all entire income from the book for five years, that the statute of limitations for this minor of the author’s creditors, despite the fact incident had long since run. That the Son of Sam law can produce such an outcome not narrowly tailored to achieve the State’s indicates that the statute is, to say the least, objective of compensating crime victims from the profits of crime.” After this ruling, New York repealed its law. After this ruling, 2004] and victim compensation interests of State’s compelling achieve the their crimes. profiting from criminals from preventing \\server05\productn\N\NLR\48-3\NLR301.txt unknown Seq: 9 16-APR-04 14:00 rendered the law overly inclusive. rendered the law law, New York attempted to pass a new version of the law that law, New York attempted to pass of the first.avoided the constitutional pitfalls that the Su- Finding crime victims and their personal preme Court ruling “has deprived by which to seek recompense representatives of a useful means their victimization,” from the criminal responsible for passed a new set of bills that provided even more protections for passed a new set of bills that provided ute’s broad definition of “persons convicted of a crime” allowed the of a crime” allowed “persons convicted definition of ute’s broad they had crimes of which admitted to target people who State to not been convicted. C Y 18314_nlr_48-3 Sheet No. 33 Side A 04/29/2004 08:40:46 A 04/29/2004 33 Side Sheet No. 18314_nlr_48-3 18314_nlr_48-3 Sheet No. 33 Side B 04/29/2004 08:40:46 M K C Y AWS the . L § 632-a [Vol. 48 42 XEC AW Part IV B & . L XEC infra N.Y. E with 43 45 The legislative history of the The legislative history 44 § 632-a (McKinney 1992) As the legislative history describes, “[t]his describes, history the legislative As AW In combination with a number of provisions with a number In combination . L 40 41 XEC NEW YORK LAW SCHOOL LAW REVIEW N.Y. E discussion of changes made to other compensation laws discussion of changes made to other compensation (i) it does not target speech alone or speech of specified (i) it does not target speech alone as any property ob- content but defines “profits of crime” crime; (ii) it applies tained or income generated from the and thereby avoids only to persons convicted of a felony encompassing the prior law’s much broader definition convicted of misde- persons who admit to crimes or are the income be gener- meanors; and (iii) it requires that the crime” and ated “as a result of having committed generated by reasons thereby avoiding reaching income separate and apart from the crime. Id. Id. See Compare Like its predecessor, the 1992 version of the Son of Sam law the 1992 version of the Son Like its predecessor, 45. Memorandum to the Governor from Attorney General Robert Abrams (July 43. 10915-B, 215th N.Y. Gen Ass., 2d Sess. (1992) (enacted as Act of S. 21017/A. 40. 41. 42. 44. (McKinney 1982). 16, 1992), Governor’s Bill Jacket, L. 1992, c. 618 at 23-24. C. July 24, 1992, ch. 618 §§ 1-17, 1992 N.Y. Laws 1618-23 (codified at N.Y. E § 632-a (McKinney 1992)). There were other differences between the two versions.There were other differences between Under the years from the date of discovery 1992 law, the victim was given three a civil action, which could only be of assets from the crime to bring 442 victims. rights of the law provided for the tort statute of limitations; the primarily altered could bring a tort the time within which a victim an extension of of the law convicted person. While the structure action against a alterations to the the law made a number of remained the same, law framework. original Son of Sam \\server05\productn\N\NLR\48-3\NLR301.txt unknown Seq: 10 16-APR-04 14:00 bill . . . attempts to recapture for crime victims much of what was victims much of for crime attempts to recapture bill . . . ‘Son of Sam.’ for them under intended accom- In many ways, it more.” plishes much liberalizing the civil and restitutional compensation laws, compensation restitutional the civil and liberalizing bill identifies three changes implemented in the 1992 law that rem- changes implemented in the bill identifies three of the prior statute: edied the problems State passed a revised Son of Sam law as part of its wider attempt to Son of Sam law as part of its State passed a revised victim compensation. provide for greater 18314_nlr_48-3 Sheet No. 33 Side B 04/29/2004 08:40:46 B 04/29/2004 33 Side Sheet No. 18314_nlr_48-3 18314_nlr_48-3 Sheet No. 34 Side A 04/29/2004 08:40:46 443 Additionally, the targeted assets were assets the targeted Additionally, SON OF SAM SON OF note 39. 46 supra note 45. § 1992). 632-a(3) (McKinney § 1992). 632-a(3) (McKinney supra AW AW . L . L Much like the sentiments expressed by the constitu- Much like the XEC XEC The next sentence goes on to discuss the Son of Sam The next sentence goes on to discuss 48 51 47 49 In particular, the tort law was amended to extend the stat- In particular, the tort law was amended 50 While the law also facilitated victim compensation, this was not While the law also facilitated victim Like the original version of the law, the new version was in- new version was of the law, the original version Like the 50. Abrams letter 47. E N.Y. 48. from Alliance for Consumer Letter in Support of Revised Son of Sam law 49. Gold memorandum 51. Memorandum from Governor Mario Cuomo (July 24, 1992), Governor’s Bill 46. E N.Y. M K Rights, Governor’s Bill Jacket, L. 1992, c. 618 at 46. Jacket, L. 1992, c. 618 at 8. its primary purpose, nor the primary means by which the legislature its primary purpose, nor the primary intended to increase compensation. along with The law was passed and tort laws, which were a set of amendments to the restitution interest of compensating vic- solely intended to achieve the State’s tims. 2004] assets. these from satisfied sure criminals do the State’s interest in making tended to achieve crimes.not profit from their history reveals that sup- The legislative this objective. rested on the importance of port for the bill also Let- Rights declared, from Alliance for Consumer ters like one innocent citizens at the hands of a wrongdoer, “Victimized once salt their victim’s again by criminals who should not be victimized role in the crimi- from the victim’s unwanted wounds by profiting nal story.” \\server05\productn\N\NLR\48-3\NLR301.txt unknown Seq: 11 16-APR-04 14:00 ute of limitations for torts arising from criminal acts to seven years. ute of limitations for torts arising of the tort law, a legislative Discussing this general amendment this is “a first step towards im- memo from the Governor explains victims for their wrongs plementing our objective of compensating suffered.” law, “[r]ecognizing that preventing criminals from profiting from law, “[r]ecognizing that preventing State interest, [this bill] also cre- crime is a distinct and compelling limitations, dating from the time ates a distinct three-year statute of ents in support of the law, the legislative history indicates that the of the law, the legislative history ents in support Sam law was par- for re-passage of the Son of legislature’s rationale from profiting from their ticularly focused on preventing criminals crimes. not automatically placed in an escrow account; rather the Board account; rather in an escrow placed not automatically from to protect the assets traditional steps to take was empowered wasting. C Y 18314_nlr_48-3 Sheet No. 34 Side A 04/29/2004 08:40:46 A 04/29/2004 34 Side Sheet No. 18314_nlr_48-3 18314_nlr_48-3 Sheet No. 34 Side B 04/29/2004 08:40:46 M K C Y [Vol. 48 McClary was found guilty and sen- McClary was found guilty and 53 In 1999, a jury found liability and Mc- In 1999, a jury found liability and 55 B. 2001: New York Goes Too Far NEW YORK LAW SCHOOL LAW REVIEW Hence, the Son of Sam law allowed the State to law allowed the the Son of Sam Hence, 52 In 1990, McClary brought a civil rights lawsuit In 1990, McClary brought a civil pursuant Id. Id. 54 In the package of bills passed in 1992, New York figured out of bills passed in 1992, New York In the package passed in 1992 and re- New York’s new law was successfully legislature was galvanized Once again, in 2001, the New York 52. 53. Memorandum from Governor George Pataki (June 25, 2002), Governor’s Bill 54. 55. McClary v. Kelly, 4 F. Supp. 2d 195, 197 (W.D.N.Y. 1998). Jacket, L. 2001, c. 62 at 5. 444 profits or is receiving has perpetrator the that discovers a victim from a crime.” \\server05\productn\N\NLR\48-3\NLR301.txt unknown Seq: 12 16-APR-04 14:00 to 42 U.S.C. §1983 alleging “that his placement in administrative to 42 U.S.C. §1983 alleging “that of four years violated his proce- segregation for a period in excess dural due process rights.” tenced to a term of twenty-five years to life in a New York State tenced to a term of twenty-five prison. achieve its distinct objective of preventing criminals from profiting criminals from of preventing its distinct objective achieve crimes.from their overlap given the close evident This is especially at the law also amended law and the tort the Son of Sam between same time. victim compensation by The State acted to facilitate then attempted to law for victims of crime and amending the tort law. crime through the Son of Sam limit profiting from recognized by the of the compelling interests how to achieve both narrow and con- that were, arguably, sufficiently Court through laws tent-neutral. to an unseemly political Unlike the rash reaction Son of Sam law the first law in 1977, the 1992 problem that created the State’s of a considered attempt to overhaul was a small part were made to In a significant effort, changes compensation system. how victims of crime are compen- numerous State laws that impact sated. a holistic Changes made were carefully calibrated to create of crime are treated in approach to how victims and perpetrators New York courts. and worked The laws complimented one another the State. together to achieve the goals of by the legislature in 2001. mained good law until it was amended a crime story.into action by the horrific facts of time the story This New York City Police Of- was that of David McClary who murdered ficer Edward Bryne in 1988. 18314_nlr_48-3 Sheet No. 34 Side B 04/29/2004 08:40:46 B 04/29/2004 34 Side Sheet No. 18314_nlr_48-3 18314_nlr_48-3 Sheet No. 35 Side A 04/29/2004 08:40:46 445 The addition of 60 . ANY SOURCE 57 The court found the jury verdict jury found the court The 56 SON OF SAM SON OF note 54. In other words, the State was particularly supra 59 had lapsed.was barred Officer Byrne’s family § 632-a(1)(c) (McKinney 2002). 58 AW . L Governor’s Bill Jacket, L. 1992, c. 618. XEC at 218. Convicted Person” Provision is Added Id. By the time McClary won the judgment, the seven-year statute the judgment, McClary won By the time 1. Profits, the “Funds of a Changes: No Longer Limited to to the law in 2001 was the The most significant change made See generally 58. This special seven year statute of limitations for the victims of crime was insti- 56.57. v. Coughlin, 87 F. Supp. 2d 205, 207 (W.D.N.Y. 2000). McClary 59.60. Pataki Memorandum N.Y. E M K tuted in the 1992 bundle of bills that also contained the new version of the Son of Sam law. excessive and gave McClary the option of consenting to remittitur consenting to the option of and gave McClary excessive to avoid a new trial.in order remitted to $237,500, The verdict was sought. McClary had the amount 2004] $660,000. was awarded Clary bring a tort claim Police Officer Bryne’s family to of limitations for relating to a crime \\server05\productn\N\NLR\48-3\NLR301.txt unknown Seq: 13 16-APR-04 14:00 interested in ensuring that civil rights settlements won by prisoners interested in ensuring that civil rights would be available to victims, for violation of their rights in prison since the commission of the no matter how much time had passed tort. provision.addition of the funds-of-a-convicted-person A drastic of profits of the crime, the law change from the limited targeting for tort actions not only now reopens the statute of limitations profits from crime, but also when the convicted person receives when he or she receives money from from bringing suit against McClary for damages.from bringing suit The Son of Sam because McClary’s the statute of limitations law did not reopen were not profits from the crime.newly-found assets The legislature perceived injustice of this situation.responded to the The legisla- and rationale amendment makes its purpose tive history of the abundantly clear: of the current Son of Sam law “The shortcomings New York City Po- in the case of murdered are tragically illustrated Byrne.lice Officer Edward will remedy this injustice by The bill and their families, such as the reviving the claims of crime victims their recovery of expenses for family of Officer Byrne, and permit injuries and suffering.” this provision divorces the law from its original anti-profit moor- this provision divorces the law C Y 18314_nlr_48-3 Sheet No. 35 Side A 04/29/2004 08:40:46 A 04/29/2004 35 Side Sheet No. 18314_nlr_48-3 18314_nlr_48-3 Sheet No. 35 Side B 04/29/2004 08:40:46 M K C Y AW . L [Vol. 48 XEC However, there 62 (ii) the new provision 63 § 632-a(1)(a) (McKinney 2002). “‘Crime’ means (i) AW the new provision only applies to people the new provision only applies 65 . L XEC 66 § 2002). 632-a(3) (McKinney § 2002). 632-a(1)(c) (McKinney 61 NEW YORK LAW SCHOOL LAW REVIEW AW AW . L . L XEC XEC § 632-a(1)(a) (McKinney 2002). AW § 2002). 632-a(1)(c) (McKinney . L and (iii) unlike the profits of the crime provision that applies and (iii) unlike the profits of the AW XEC The funds-of-a-convicted-person provision acts much like the provision acts much The funds-of-a-convicted-person 64 . L 63. E N.Y. 66. The statute reads, “Funds of a convicted person means all funds and property 64. new “funds of a convicted person” provision only applies to convicted The 65. statute reads: “‘Profits The any property obtained from a crime’ mean (i) 61. it might appear that the funds-of-a-convicted-person provision subsumes While 62. E N.Y. XEC any felony defined in the laws of the state; or (ii) an offense in any jurisdiction which . ..” includes all of the essential elements of any felony defined in the laws of this state. N.Y. E felons while they are under the watch of the criminal justice system felons while they are under the watch of – in prison, on probation or parole – in the system or if the money was accrued while the person was since the person has been released.and not more than three years have passed N.Y. E received from any source by a person convicted of a specified crime. . ..” N.Y. E through or income generated from the commission of a crime of which the defendant through or income generated from the commission was convicted . . ..” N.Y. E the profits-from-a-crime provision, the two remain distinct.the profits-from-a-crime provision, the two to The former only applies justice system, plus an additional three people while under the watch of the criminal years. Also, it only applies to people convicted of certain enumerated felonies. The latter, in contrast, has no such limits. Hence it has much wider applicability and will does not. apply in many instances where the former 446 ings.provides a law, except it a general tort the law acts as Now, faced or two year threat (unlike the one threat of suit never-ending under the to people and it only applies tort context), in a typical justice system. the criminal watch of of the the addition With be jus- law can no longer provision, the funds-of-a-convicted-person do not profit interest in ensuring that criminals tified by the State’s from their crimes. provision.existing profits-from-a-crime A new statute of limitations then has three money is detected and the victim is triggered once of this discovery to bring suit. years from the date \\server05\productn\N\NLR\48-3\NLR301.txt unknown Seq: 14 16-APR-04 14:00 to all convicted felons, convicted of particular enumerated felonies, “specified crimes” de- convicted of particular enumerated fined in the statute. are three critical differences between the funds-of-a-convicted-per- are three critical (i) under new the profits-from-a-crime provision: son provision and of the statute of that triggers the reopening provision the money thousand dollars, from any source totaling ten limitations is money support; other than earned income or child only applies to people under the watch of the criminal justice sys- only applies to people under the tem; 18314_nlr_48-3 Sheet No. 35 Side B 04/29/2004 08:40:46 B 04/29/2004 35 Side Sheet No. 18314_nlr_48-3 18314_nlr_48-3 Sheet No. 36 Side A 04/29/2004 08:40:46 447 of the A plain- 67 any and all § 632-a(1)(e) (McKinney 2002) AW . L XEC In other words, the section of the 68 N.Y. E SON OF SAM SON OF See § 632-a(3) (McKinney 1992) (stating “any damages awarded in AW . L XEC Available Another key change imposed by the 2001 amendment involves by the 2001 key change imposed Another 2. are Now Provisions, All Assets Under Both Changes: The legislative history makes it clear that under the funds-of-a- makes it clear that under The legislative history 67. N.Y. E 68. Pataki Memorandum, Governor’s Bill Jacket, L. 2001, c. 62 at p. 6. M K (defining “Specified Crime”). such action shall be recoverable only up to the value of the profits of the crime”). § 632-a(1)(c) (McKinney 2002). the sources of funds available for satisfaction of a judgment won of a judgment for satisfaction of funds available the sources Son of Sam law.under the allows Sam law simply While the Son of otherwise be a tort action when he or she would a victim to bring recovery pursu- of the statute of limitations, barred by the operation as normal tort Sam law claim was not the same ant to the Son of recovery. the law, when the law applied Under the 1992 version of was limited to the of the crime, recovery exclusively to proceeds the law—theassets targeted by proceeds from the crime. 2004] \\server05\productn\N\NLR\48-3\NLR301.txt unknown Seq: 15 16-APR-04 14:00 statute defining the funds-of-a-convicted-person provision is used to statute defining the funds-of-a-convicted-person and new liability period define when the reporting requirement kick in. are exempted While earned income and child support tiff who brought suit pursuant to the provision could only recover suit pursuant to the provision tiff who brought share of the profits of the crime.his or her pro rata In 2001, the this limit under either provision. law no longer contains is permitted from all of the convicted-person provision, recovery convicted person’s assets. only applies As explained above, the law assets totaling ten thousand dol- if a convicted person has amassed than earned income or child lars or more, from any source other support. is reached, However, once that ten thousand dollar limit and recover the victim can bring a tort action convicted person’s assets. child support While earned income and thousand dollar trigger, when it cannot be used to calculate the ten there is no segregation of earned comes to recovery under the law income or child support. dollar trig- Describing the ten thousand child support, the legislative his- ger excluding earned income and of the provision is to determine tory states, “[t]he sole purpose the provision has no effect on whether a person must give notice; a convicted person’s employ- the ability of a crime victim to recover ment income in a civil action.” C Y 18314_nlr_48-3 Sheet No. 36 Side A 04/29/2004 08:40:46 A 04/29/2004 36 Side Sheet No. 18314_nlr_48-3 18314_nlr_48-3 Sheet No. 36 Side B 04/29/2004 08:40:46 M K C Y AW . L [Vol. 48 XEC 72 N.Y. E with The legislative history fails to directly The legislative § 1992) 632-a(3) (McKinney AW 70 . L 69 XEC § 2002). 632-a(1)(c) (McKinney NEW YORK LAW SCHOOL LAW REVIEW AW . L N.Y. E 71 XEC [s]ignificantly, employment income earned by a con- income earned by a [s]ignificantly, employment and well as all other forms of earned victed person, as vic- are always recoverable by a crime unearned income, a cause of action tim once the crime victim commences any other statute of pursuant to Executive Law [632]-a or by a crime victim limitations. . .. Any judgment obtained be enforced or exe- against an inmate or prisoner may except for the first cuted against all assets of such person account to his or her $1,000 on deposit in an institutional credit. Compare The 2001 amendment also altered aspects of the profits-from-a- altered aspects amendment also The 2001 70. 69. E N.Y. 71. Memorandum, Governor’s Bill Jacket, L. 2001, c. 62 at 12-13. Nozzolio 72. both provisions of the law While the removal of the limit on recovery makes § 2002). 632-a(3) (McKinney operate similarly once they are triggered, the two provisions are still distinct. There are circumstances in which one would allow suit and the other would not, for example, of a when a convicted person amasses less than ten thousand dollars from the proceeds crime. provision can encompass earned income, In addition, the profits-from-a-crime for example the profits from writing a book or article about a crime. This language, coupled with the removal of the language limiting This language, coupled with the intended for recovery under recovery, suggests that the legislature and the funds-of-a-con- both the profits-from-a-crime provision all the convicted person’s assets. victed-person provision to include the reopening of the statute of Both provisions are used to trigger can obtain a civil judgment to limitations, under which a plaintiff the defendant’s assets. be satisfied from any and all of 448 the under reporting of the purpose assets for of the tallying from are as all other sources, sources, as well funds from these statute, under the funds-of-a-convicted-person to a plaintiff suing available of the law. provision crime provision. the 2001 law appears to have Most significantly, the 1992 version. on recovery that existed in removed the limit recovery to the version of the law explicitly limited While the 1992 the 2001 profits this language is missing from profits of the crime, of the crime provision. \\server05\productn\N\NLR\48-3\NLR301.txt unknown Seq: 16 16-APR-04 14:00 comment on this alteration. A memorandum from the bill sponsor alteration. A memorandum from comment on this states generally, 18314_nlr_48-3 Sheet No. 36 Side B 04/29/2004 08:40:46 B 04/29/2004 36 Side Sheet No. 18314_nlr_48-3 18314_nlr_48-3 Sheet No. 37 Side A 04/29/2004 08:40:46 73 AW 449 . L XEC N.Y. E with Neither raised constitutional 74 SON OF SAM SON OF § 1992) 632-a(1)(a) (McKinney AW . L C. Challenges in the Courts XEC N.Y. E Compare 1. Post–1992 Challenges law only applied to profits Between 1992 and 2001, when the In addition to apparently expanding recovery under the prof- under recovery expanding to apparently In addition what it saw as how, in its rush to address This paper will show 73. 74. York State Crime Victims Board v. T.J.M. Productions, Inc., 705 N.Y.S.2d New M K from crime, there were only two reported cases involving the 1992 from crime, there were only two Son of Sam law in New York courts. § 2002). 632-a(1)(a) (McKinney Crime Victims Board did not have standing 320 (1st Dept. 2000) (holding that the under New York Executive Law § 632-a to bring action to recover profits earned by was no lawsuit brought by a victim); San- defendant for book about crime where there (N.Y. Sup. Ct. 1995) (holding that damages dusky v. McCummings, 625 N.Y.S.2d 457 sustained while fleeing the crime scene did award won by convicted person for injuries not constitute profits of the crime under New York Executive Law § 632-a). In 1995, two cases were decided involving the original Son of Sam law. One involved the ques- tion of how the Crime Victims Board was to dispose of funds collected under the origi- nal, now invalidated, law. Crime Victims Board v. Abbott, 627 N.Y.S.2d New York State 629, 632 (1st Dept. 1995). that the Board did not have to return the The court held 2004] the also expanded the 2001 amendment provision, its-from-a-crime applies. which this provision crimes to the funds-of-a-con- While felonies, certain specified only applies to provision victed-person to all felonies.provision applies the profits-from-a-crime In addi- crime pro- extended the profits-from-a-crime tion, the amendment as long as the and out of state convictions, vision to cover federal place in state. of New York or the crime took victim was a resident the logic problem, the legislature abandoned an important political law in the State’s by the 1992 Son of Sam and cohesion achieved scheme.victim compensation the paper will discuss recent Next, law. brought against the amended constitutional challenges In the anti-profit laws this paper will look at the following sections, which New York’s states to illustrate the extent to adopted by other its own original model, which amended law harshly deviates from of the nation.has now been adopted by the rest it will con- Then, which the 2001 Amendment con- sider more carefully the ways in civil liability and compensation flicts with New York’s existing raised by the expansion of as- scheme, and the particular problems sets available under the law. \\server05\productn\N\NLR\48-3\NLR301.txt unknown Seq: 17 16-APR-04 14:00 C Y 18314_nlr_48-3 Sheet No. 37 Side A 04/29/2004 08:40:46 A 04/29/2004 37 Side Sheet No. 18314_nlr_48-3 18314_nlr_48-3 Sheet No. 37 Side B 04/29/2004 08:40:46 M K C Y 76 L. OURO [Vol. 48 While the The Su- , 11 T 75 79 the Supreme Court the Supreme Simon & Schuster The Court took issue The Court took Beyond Son of Sam: Simon & 279, 294 (1992) (arguing that at 172. 77 Id. , 502 U.S. at 123); Andrew Michael at 119. . 321, 346-47 (1992) (arguing that the OMMENT Id. EV C . L. R EGAL T Simon & Schuster Simon & . at 170. The court also held that the action was J. L S , 17 V Id ’ Simon & Schuster OHN Adam Robert Tschorn, . J T New York’s Son of Sam Law: Alive and Well Today , 502 U.S. at 118-19. NEW YORK LAW SCHOOL LAW REVIEW See, e.g., But by expanding the law to allow recovery from all the law to allow recovery from But by expanding 78 at 120-21. Simon & Schuster Id. . The other case involved a suit in federal court by plaintiff who claimed he Id . 629, 647 (1995) (quoting 78. Court explained, “[t]he Board cannot explain why the State should have The 79. of the law on other, non-con- Some commentators criticized the 1992 version 76. 77. 75. P. Vargas, Steven EV Schuster, Inc. v. New York State Crime Victims Board, and a Constitutionally Valid Alternative to Schuster, Inc. v. New York State Crime Victims Board, and a Constitutionally Valid Alternative New York Executive Law Section 632-A any greater interest in compensating victims from the proceeds of such ‘storytelling’ any greater interest in compensating victims than from any of the criminal’s other assets.” stitutional grounds. law will still be analyzed under strict scrutiny, the 1992 version will survive review be- law will still be analyzed under strict scrutiny, State’s compelling interest.). cause it is narrowly tailored to achieve the R the law has fixed the problem that the Court identified in the law has fixed the problem that the Court 1992 version of the law is under-inclusive regarding its definition of who counts as a 1992 version of the law is under-inclusive regarding its definition of who counts as of “person convicted of a crime,” and under-inclusive with regards to the definition barred by res judicata because the issues had been litigated before, even though in the barred by res judicata because the issues had interim the statute had been held unconstitutional. Lauri & Patricia M. Schaubeck, Like Father Like Son? The Constitutionality of New Lauri & Patricia M. Schaubeck, Like Father York’s Son of Sam Law, 8 S The Court found, specifically, that compensating victims with the specifically, that compensating The Court found, is a compelling interest. proceeds of crime funds. under the original Son of Sam statute was unconstitutionally denied movie royalties profits from a real crime movie to the where a production company had delivered Crime Victims Board. Heath v. Warner Communications, Inc., 891 F. Supp. 167, 170 (S.D.N.Y. 1995). that The court granted summary judgment for the defendant, holding he had been awarded profits as part of the plaintiff could not maintain the suit because not commence litigation for additional settlement agreement under which he could profits without leave of the court. 450 the law. to challenges further that no particularly interesting It is to the law. were made challenges First Amendment Many commen- the con- have corrected legislature may argued that the tators have in infirmity because stitutional “singled fact that the law with the particularly concerned seemed burden that it particular subject for a financial out speech on a other speech and no other income.” place[d] on no \\server05\productn\N\NLR\48-3\NLR301.txt unknown Seq: 18 16-APR-04 14:00 with the choice to limit victim compensation to only proceeds from limit victim compensation to only with the choice to storytelling. only vulnerable longer singling out speech as the profits, and no as to avoid the might be appropriately tailored proceed, the law eyes of the Court. First Amendment problem in the preme Court agreed with the State that compensating victims and with the State that compensating preme Court agreed interests. from profiting were compelling preventing criminals 18314_nlr_48-3 Sheet No. 37 Side B 04/29/2004 08:40:46 B 04/29/2004 37 Side Sheet No. 18314_nlr_48-3 18314_nlr_48-3 Sheet No. 38 Side A 04/29/2004 08:40:46 451 Wright 83 Wright, the 82 These cases in- 80 , 751 N.Y.S.2d 344 (N.Y. Sup. Ct. Snuszki , 749 N.Y.S.2d 837. SON OF SAM SON OF Majid , the plaintiff brought suit under the , the plaintiff , 751 N.Y.S.2d 344; , 751 N.Y.S.2d at 346. at 347. He claimed that he was being treated differently than He claimed that he was being Snuszki v. Wright Snuszki Snuszki Id. Id. He further argued that this unequal treatment inhibited He further argued that this unequal 81 84 85 In 2. Challenges Post-2001 raise does not provision funds-of-a-convicted-person While the 85. Defendant’s Reply to the Intervener’s Memorandum of the Constitutionality 80. v. Cusack, 02 Civ. 9610 (DAB) (RLE) (S.D.N.Y. filed December 3, 2002); Doe 81. 82. 83. 84. M K amended version of Executive Law Section 632-a(1)(c), the funds- of Executive Law Section 632-a(1)(c), amended version killer for provision, against her mother’s of-a-convicted-person from the received in a civil rights settlement money the defendant Services. New York State Department of Correctional 2002) (No. 11-0189/01). of Section 632-a(3) of the Executive Law at 6, what assets count as “profits of a crime.” Tschorn advocates for an alternative statute, what assets count as “profits of a crime.” which he outlines in his article.). Ct. 2002); New York State Crime Victims Snuszki v. Wright, 751 N.Y.S2d 344 (N.Y. Sup. Ct. 2002). Board v. Majid, 749 N.Y.S.2d 837 (N.Y. Sup. 2004] (the prof- its companion posed by Amendment problems the First speech, it not target because it does provision) its-from-a-crime problems. of other constitutional raises a host amendment was The been filed chal- to date at least three cases have passed in 2001 and of the current law. lenging the constitutionality \\server05\productn\N\NLR\48-3\NLR301.txt unknown Seq: 19 16-APR-04 14:00 other similarly situated people, namely other tortfeasors, in viola- other similarly situated people, guarantee of equal protec- tion of the Fourteenth Amendment’s tion. exercise of his fundamental rights. that the law vio- Wright claimed rights by limiting his access to the lated his substantive due process courts. claims, years He argued that the law’s revival of lapsed tort claimed the amended law violated his constitutional rights to equal claimed the amended law violated and his right to access the protection, substantive due process, courts. volve Fourteenth Amendment challenges to the funds-of-a Amendment challenges to volve Fourteenth provision.convicted-person these cases have resulted in de- Two of the constitutional stages addressing some of cisions at preliminary claims. the plaintiff’s complaint, ar- defendant, made a motion to dismiss was unconstitutional. guing that the amended law C Y 18314_nlr_48-3 Sheet No. 38 Side A 04/29/2004 08:40:46 A 04/29/2004 38 Side Sheet No. 18314_nlr_48-3 18314_nlr_48-3 Sheet No. 38 Side B 04/29/2004 08:40:46 M K C Y com- [Vol. 48 Lastly, 86 The court held that The court held 91 The court held that . 93 In dicta, the court noted 92 Furthermore, it held that this Furthermore, it 89 Because no fundamental right was Because no fundamental 90 , 2002 WL 31687184 (N.Y. Sup. Ct. 2002) (No. 11- , 2002 WL 31687184 (N.Y. Sup. Ct. 2002) (No. , 502 U.S. 105 (1991)). Snuszki Lastly, the court rejected Wright’s substantive Lastly, the court rejected Wright’s 87 NEW YORK LAW SCHOOL LAW REVIEW 95 Simon & Schuster , 751 N.Y.S.2d 344 (N.Y. Sup. Ct. 2002) , 751 N.Y.S.2d at 348. (citing It explained that there is no fundamental right to the pro- there is no fundamental right It explained that Snuszki Id. Id. Id. Id. Id. Id. Id. Snuszki governmental interest, while to pass this test the govern- governmental interest, while to Hence, the amended law satisfied the rational basis test. Hence, the amended law satisfied 88 The court addressed all three of the defendant’s constitutional three of the defendant’s addressed all The court With regard to Wright’s access to the courts claim, the court With regard to Wright’s access 94 94. 95. 86. of Law in Support of the Constitutionality of Section 632-a(3) Memorandum 89. 90. 91. 92. 93. 87. 88. of the Executive Law at 19-20, 0189/01) (citing Defendant’s Memorandum at 12). 0189/01) (citing Defendant’s Memorandum 452 shocking. conscious and arbitrary was the incident, after claims. the protection claim, defendant’s equal regard to the With right was at contention that a fundamental court rejected Wright’s stake. \\server05\productn\N\NLR\48-3\NLR301.txt unknown Seq: 20 16-APR-04 14:00 held that the law places no affirmative restriction on the defendant held that the law places no affirmative legal relief for any wrong commit- prohibiting him from pursuing ted against him. due process claim. “arbitrary, The court held that there is nothing about allowing a victim to be conscience-shocking or oppressive” tection of the statute of limitations. tection of the statute implicated, and the defendant did not claim to be a member of a the defendant did not claim to implicated, and a rational basis the court analyzed the law under protected class, be rationally that governmental classifications standard, requiring governmental interest. related to a legitimate extending the statute of limitations is rationally related to this inter- extending the statute of limitations est. that the Supreme Court recognized compensating victims as a that the Supreme Court recognized pelling ment’s interest need only be legitimate. law puts no restrictions on the defendant’s ability to access the on the defendant’s ability law puts no restrictions can be used to any judgment he may receive courts simply because against him. satisfy a judgment the amended law satisfied this standard. Wright claimed that the law violated his First Amendment right to First Amendment law violated his that the Wright claimed courts. access the 18314_nlr_48-3 Sheet No. 38 Side B 04/29/2004 08:40:46 B 04/29/2004 38 Side Sheet No. 18314_nlr_48-3 18314_nlr_48-3 Sheet No. 39 Side A 04/29/2004 08:40:46 453 In No- 99 , the Crime Victims Majid claimed that the 101 . It appears to be a suit brought by Majid to Hence, the court upheld the funds- the court upheld Hence, SON OF SAM SON OF 97 § 632-a(6) (McKinney 2002). 103 AW The court held again that no fundamental right of right fundamental that no again court held The . L He brought a civil rights action against several New rights action against several He brought a civil 96 98 XEC , 749 N.Y.S.2d 837 (N.Y. Sup. Ct. 2002). This memorandum is on file , 749 N.Y.S.2d at 838. the court assumed the challenges applied to the section the court assumed the challenges at 349. at 840. at 348-49. 102 100 Majid New York State Crime Victims Board v. Majid New York State Crime Id. Id. Id. Majid Id. In In 1999, Abdul Majid was an inmate at Sullivan County Correc- an inmate at Sullivan Abdul Majid was In 1999, Majid v. New York Crime Victims Board 98. v. Wilhelm, 110 F. Supp. 2d 251, 253 (S.D.N.Y. 2000). Majid 99. 97. 96. 100. Memorandum of Law in Support of Declaratory and Injunctive Re- Plaintiff’s 101. 102. 103. N.Y. E M K lief at 5, Majid v. Crime Victims Board (S.D.N.Y.) (No. 02 CV-2907).lief at 5, Majid v. Crime Victims Board (S.D.N.Y.) This case is distinct from avoid the action that was subsequently brought for an injunction by the Crime Victims avoid the action that was subsequently brought Board in with the author. York State corrections officers claiming that he had been subjected officers claiming that he had York State corrections correctional of- and severely injured by three to excessive force ficers.First Amendment right to freely He also claimed that his violated. while incarcerated had been exercise his religion 2004] compensated. Law § a motion, pursuant to Executive Board (“CVB”) brought 632- from distributing money Majid a(6), to enjoin Majid and the State had received from the settlement. \\server05\productn\N\NLR\48-3\NLR301.txt unknown Seq: 21 16-APR-04 14:00 Wright’s had been violated. Wright’s mo- and denied Wright’s of the law provision of-a-convicted-person complaint. the plaintiff’s tion to dismiss tion Facility. of the statute under which the plaintiff was seeking an injunction, of the statute under which the plaintiff (“subsection 6”).Executive Law Section 632-a(6) Subsection 6 is the CVB the power to protect the the section of the law that gives remedies, such as attachment, assets at issue by seeking provisional of pendency, otherwise availa- injunction, receivership and notice ble to a plaintiff. amended Son of Sam law violated his constitutional rights.amended Son of Sam law violated It was he was challenging, but because unclear what provision of the law of the statute of limitations was the question of the constitutionality not ripe, vember of 2001, the parties to the suit entered into a settlement, the parties to the suit entered vember of 2001, dollars for his received fifteen thousand under which Majid injuries. C Y 18314_nlr_48-3 Sheet No. 39 Side A 04/29/2004 08:40:46 A 04/29/2004 39 Side Sheet No. 18314_nlr_48-3 18314_nlr_48-3 Sheet No. 39 Side B 04/29/2004 08:40:46 M K C Y 106 [Vol. 48 violation 104 at 1275. However, this Id. New York Crime Victims Board v. Majid Not only is there no creation Not only 105 Lastly, the court held there was no Lastly, the court . at 1274. In extreme cases, a civil penalty can be 108 Id Hence, a New York court upheld another as- Hence, a New York court upheld 109 NEW YORK LAW SCHOOL LAW REVIEW , 749 N.Y.S.2d at 840. at 841. Majid Id. Id. Id. Id. The court held that there was no substantive due process that there was no substantive The court held The court granted the plaintiff an injunction, holding that sub- holding an injunction, plaintiff the court granted The 3. Potential for Success in the Courts particularly the funds-of-a- At first glance, the Son of Sam law, 107 104. The Constitution prohibits the passage of ex post facto laws by states. U.S. 105. 109. 106. 107. 108. “so punitive in fact” that it violates the Ex Post Facto clause. “so punitive in fact” that it violates the Ex Const. Art. 1, § 1. 10, cl. makes conduct An ex post facto law is a law that retroactively criminal after the conduct has occurred. Doe v. Pataki, 120 F.3d 1263, 1272 (2d Cir. 1997). it In order for a statute to violate the Ex Post Facto clause of the Constitution, must be a penal law. if A statute is not considered penal, even if it has punitive aspects, its primary purpose is regulatory. 454 Majid’s constitutional law did not violate of the amended section 6 rights. post facto there was no ex court held that The claim, the court Majid’s procedural due process With regards to action and had had received notice of the CVB’s held that Majid process of the so he had been afforded due fought it vigorously, law. \\server05\productn\N\NLR\48-3\NLR301.txt unknown Seq: 22 16-APR-04 14:00 problem because there was a reasonable connection between the there was a reasonable connection problem because the CVB to compensating victims and allowing State’s interest in wasting. protect assets from CVB the ability to problem posed by giving the equal protection to all others, including the apply for remedies that are available defendant himself. law. pect of the amended Son of Sam constitutional questions.convicted-person provision, raises There well as equal protection questions, are due process implications, as raised by the application of the law. have strong While these claims face skepticism in the courts.rhetorical appeal, they will likely As it will be difficult to establish that explained in more detail below, right or discriminates against this law infringes upon a fundamental of a criminal penalty, there is no creation of a new civil remedy there is no creation of a of a criminal penalty, tort remedy. allows is realization of the lapsed because all the law is a difficult standard to satisfy. The court in of Sam law, as other courts likely will as well. rejected this claim with respect to the Son because subsection 6 merely allows the CVB to apply to courts for CVB to apply to allows the subsection 6 merely because remedies. provisional pre-existing 18314_nlr_48-3 Sheet No. 39 Side B 04/29/2004 08:40:46 B 04/29/2004 39 Side Sheet No. 18314_nlr_48-3 18314_nlr_48-3 Sheet No. 40 Side A 04/29/2004 08:40:46 455 Given 110 The difficulty with show- it seems unlikely that any it seems unlikely , acknowledging the State’s , acknowledging 112 111 SON OF SAM SON OF Simon & Schuster , 502 U.S. at 118-19. , City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985) , City of Cleburne v. Cleburne Living Center, is that a plaintiff will have to explain why under the is that a plaintiff will have to explain 113 Simon & Schuster See, e.g. Under the equal protection clause, the Son of Sam law is likely of Sam law is clause, the Son equal protection Under the Similarly, substantive due process claims are likely to receive Similarly, substantive due process 111. 112. Laws that infringe on fundamental rights are subject to heightened scrutiny, 113. Plaintiff’s Complaint at 9-12, Doe v. Cusack, 02 Civ. 9610 (DAB) (RLE) 110. M K (explaining “[t]he general rule is that legislation is presumed to be valid and will be (explaining “[t]he general rule is that legislation statute is rationally related to a legitimate sustained if the classification drawn by the however, when a statute classifies by race, state interest . . . The general rule gives way, alienage, or national origin. of These factors are so seldom relevant to the achievement in such considerations are deemed to any legitimate state interest that laws grounded reflect prejudice and antipathy —class are not as a view that those in the burdened worthy or deserving as others. is For these reasons and because such discrimination means, these laws are subjected to strict scru- unlikely to be soon rectified by legislative suitably tailored to serve a compelling state tiny and will be sustained only if they are interest.”). requiring the government to meet a higher standard to justify its actions. Moore v. City of East Cleveland, 431 U.S. 494 (1977). (S.D.N.Y). 2004] class. a protected a its validity applying likely to analyze Courts are law will survive. under which the basis standard, rational protected because no basis standard under a rational to be analyzed by the law.class is targeted law establish that the It is not hard to groups differently.treats similarly situated Criminal tortfeasors are than non-criminal tortfeasors.treated differently People under the differently than justice system are treated watch of the criminal completed their sentences.those who have Yet, because no pro- the govern- for this differential treatment, tected class is targeted that the law is justify its actions by proving ment need only interest. to a legitimate governmental rationally related \\server05\productn\N\NLR\48-3\NLR301.txt unknown Seq: 23 16-APR-04 14:00 court will find that the law is not rationally related to a legitimate court will find that the law is not state interest. the issue in Given that the Supreme Court decided that New York’s law is not rational. dictum, no court is likely to hold difficulty of establishing that the rational basis review because of the right. law infringes on a fundamental ing that a fundamental right is infringed upon, which has been ing that a fundamental right is privacy, familial association, and raised in this context as a right to property, the Court’s holding in the Court’s holding and preventing in compensating victims compelling interests from crime, criminals from profiting C Y 18314_nlr_48-3 Sheet No. 40 Side A 04/29/2004 08:40:46 A 04/29/2004 40 Side Sheet No. 18314_nlr_48-3 18314_nlr_48-3 Sheet No. 40 Side B 04/29/2004 08:40:46 M K C Y [Vol. 48 While the 115 Hence, it will be difficult for Hence, it will be 114 note 218. note 213. infra infra NEW YORK LAW SCHOOL LAW REVIEW discussion discussion See See A procedural due process claim appears the least likely to pre- process claim appears the least A procedural due While they might not ultimately prevail, constitutional chal- While they might not ultimately 115. 114. 456 problem, is no constitutional there limitations of tort statute initial one there is. the expanded but under of Sam fact that the Son The an argu- makes such any new remedies not provide for law does it is suit is constitutional, If a regular tort difficult. ment particularly law is not, the Son of Sam brought under argue that a suit hard to between the two is no substantive difference in given that there causes of action. undermined by the fact that This claim is further statutes of limita- broad authority to set and alter legislatures have when they do, no fit, and the Court has held that tions as they see are implicated. constitutional rights \\server05\productn\N\NLR\48-3\NLR301.txt unknown Seq: 24 16-APR-04 14:00 a plaintiff to convince a court that the extension of time to bring a a court that the extension a plaintiff to convince on a fundamental right. suit, alone, infringes convicted person is afforded process vail because the – he or she to judgment; is al- attachment of money prior can challenge any damages in court; and liability is lowed to litigate the question of where the person presumably re- based on the criminal conviction, ceived due process. of the Even the retroactive application to raise a significant due process amended Son of Sam law fails Court cases that acknowl- problem because of a line of Supreme have to amend and retroac- edges the broad discretion legislatures without warning. tively apply statutes of limitations federal due process clause holds little hope, in Section IV.C.1 be- federal due process clause holds due process claim that has not low, I suggest an alternative State inquiry. been raised and that warrants further provide strong rhetorical argu- lenges are valuable because they ments against the law. protection Even if there is not an equal glaring equal protection concerns violation, for example, there are to build organizing momentum raised by the law that can be used the importance of protecting pris- and to educate the public about oners’ rights. in tandem to Ultimately, lobbying and litigation used law and why it is suchillustrate the inconsistencies of the poor pol- about change than constitutional icy may be more likely to bring challenges alone. bring to light Cases like the ones discussed above how unfair the law can be. Prisoners’ rights advocates wishing to 18314_nlr_48-3 Sheet No. 40 Side B 04/29/2004 08:40:46 B 04/29/2004 40 Side Sheet No. 18314_nlr_48-3 18314_nlr_48-3 Sheet No. 41 Side A 04/29/2004 08:40:46 457 AW L Subsequently, in seven 116 . 1 (2000). EV SON OF SAM SON OF . L. R ROBLEMS WITH THE NG E EW A Proposal for a New Massachusetts Notoriety-for-Profit Law: The IV. P , 22 W. N A.A Fifty State Survey New York v. EVERYONE ELSE: A survey of the antiprofit laws found in other states reveals that A survey of the antiprofit laws found Son of Sam law in 1977, the After New York passed the original In this section, I will discuss a few key problems I believe are will discuss a few key problems In this section, I 116. Sean J. Kealy, M K New York’s law, as it stands after the 2001 amendment, is far more New York’s law, as it stands after other states.punitive than the laws found in shows the ex- It also from the model it created, tent to which New York has deviated similar laws have remained true to while the rest of the states with original law. the format and purposes of the government followed its lead. majority of states and the federal form of the law: New Hamp- Only three states failed to pass some shire, North Carolina, and Vermont. Grandson of Sam 2004] the that lawmakers to show such cases use law should the challenge and irrational.law is unfair three will highlight The next section law as posed by the problems non-constitutional, additional, amended. may help advocates of these problems Again, discussion be changed. this law should lawmakers why prove to Son of Sam law.posed by the current Because the law was legal scholarship to date there has been no amended so recently, the law. of the new expansion of examining the impact The argu- that are particu- intended to flag aspects of the law ments I raise are to advocates to attack, which might be useful larly vulnerable in the courts or in the amended law either planning to challenge the legislature. to provide a larger context within which to First, New York’s law, I will look at an- consider the harsh provisions of tiprofit laws of other states.the conflicts be- Next, I will consider provisions of New York victim tween the Son of Sam law and other compensation law. highlights the This comparison, in particular, of the statute of limitations in the problems raised by the expansion funds-of-a-convicted-person provision. at one of the Last, I will look amended law, the expansion of re- most problematic aspects of the person. covery to all funds held by the convicted \\server05\productn\N\NLR\48-3\NLR301.txt unknown Seq: 25 16-APR-04 14:00 C Y 18314_nlr_48-3 Sheet No. 41 Side A 04/29/2004 08:40:46 A 04/29/2004 41 Side Sheet No. 18314_nlr_48-3 18314_nlr_48-3 Sheet No. 41 Side B 04/29/2004 08:40:46 M K ...... A C Y D AL NN NN NN 117 ODE TAT OWA . A . § 54- . A . C . A . S [Vol. 48 . § 31-22- NN . § 77-18- EV EV TAT TAT TAT . § 944.512 NN NN . R . A . R . S . S Y . S NN A IS . A EV ASH TAT EV . A . §§ 351-81 to 88 . § 780.768 (West . R ODE TAT . S A . R NN §§ 23A-28A-1 to 14 TAT NN C EN . §§ 81-1835 to 1840 . § 16-90-308 (Michie EV A . A . S . § 147.275 (2001); P AWS TAH . G NN NN LA L . §§ 2969.01 to .06 (West TAT AWS . §§ 99-38-1 to 11 (2002); TAT A § 632-a (McKinney 2002); . A ONN . S NN . L NN . S . § 12.61.020 (Michie 2002); AW ODE TAT EV A EV A . § I 5-2-6.3-1 to 7 (2002); § S.C. 12-25.1-1 to 12 (2002); . L TAT OMP ODIFIED R . C . S . R NN S . Art. 8309-1 (repealed 1993); C ODE ODE R AWS . C XEC . Tit. 14, § 2002); M 752-E (West RK AW EV A NN . C . C . L NN ICH . R LASKA . A EV ODE ISS EN EB . A . §§ K 74-7319-7321 (2002); R and forty states have antiprofit and forty §§ W 14-2B-1 to 11 (2002); . C TAT NN TAT 118 ND . S HIO ODE . §§ 2002). 1-40-301 to 308 (Michie . S . A IV EV . C NN . C TAT A . 145/1 to 14 (repealed 1992); L . 145/1 to 14 (repealed . R . A EV E . S NN . §§ U 29-13-401 to 411 (2002); . R . §§(Michie 2002); W 19.2-368.19 to .22 AN TAT . §§ 2002); N.M. S 52:4B-28 to 33 (West . §§ C 24-4.1-201-207 (2002); NN . A EX NN . S . § 595.045(14) (repealed 1993); N . Tit. 11 §§ (2001); F 9101 to 9106 A NN NN A TAT YO NN TAT . A §§ A 13-4201-4202 (2002); . § 611A.68 (2002); M . A . tit. 22, § O 17 (West 2002); ODE . S A § 11-621 – 633 (2002); M ODE . §§ H 17-14-30 to 32 (2002); NEW YORK LAW SCHOOL LAW REVIEW NN NN . S NN TAT § 19-5301 (2002); I . C TAT . C NN §§ A 41-9-80 to 84 (2002); OMP ODE ROC . A A NN . A In twenty-six states, the tort statute of limitations is the tort statute of limitations In twenty-six states, . A . §§ N 53-9-101-133 (2002); . S A § 32-07.1-01 (2001); O 119 ENN P ODE . C . C ODE EV NN TAT . A TAT TAT C 120 LL EL O ODE ODE RIM A . C . S . R . S . S Rejection of the Anti-Profit Model Rejection of the . C LA . C EV . § 910.15 (2002); K . tit. 42 § 2002); R.I. G 8312 (West . § Co-op 2002); S.D. C 17-25-500- 570 (Law. ., C § on first amendment grounds by Kee- 2225 (Statute held unconstitutional A INN ODE DAHO KLA OLO R NN NN NN NN ENT ODE . C At their core, many state laws operate like New York’s: they ex- state laws operate like New York’s: At their core, many 1. New York’s of Limitations: of the Statute Expansion A A A . A . § W.V 7.68.200 to 290 (2002); . § M 346.165 (Michie 2002); . C 120. of years within which a victim I assume that the statutes that provide a number 118.119. U.S.C. § 18 3681 (2003). A 117. 725 I ONT ODE ODE ODE IV NN NN RIZONA TAT § § 46:1831 to 1839 (repealed 1997); MA ST 258A 8; §§ 1 to 9 (repealed 1993 (eff. Jan. 1, 1995)); M § W 949.165 (West 2001); 22 (Michie 2002) (repealed eff. July 1, 2006); N.Y. E 22 (Michie 2002) (repealed eff. July 1, 2006); 8.3 – 8.5 (2002); V (Michie 2002); T 218 (2002); D (2001); I 2002); M (Michie 2002); N.J. S 2001); C 2002); O A M N.D. C § T 217.265 (repealed 1993); A C S C (2002); G must bring suit are providing a limitations period distinct from the one established for must bring suit are providing a limitations period distinct from the one established regular torts. run from the date the funds are discovered or Furthermore, most statutes the escrow account for the funds is establishes. Hence, the running of the statute of tort limitations under these statutes is not connected to the running of the traditional statute of limitations. nan v. Superior Court of Los Angeles County, 117 Cal. Rptr. 2d 1 (Cal. 2002)). nan v. Superior Court of Los Angeles County, A C tend or renew civil claims otherwise barred by the tort statute of claims otherwise barred by tend or renew civil limitations. C 458 replaced. and not repealed been have Sam laws Son of states, federal government Today, the \\server05\productn\N\NLR\48-3\NLR301.txt unknown Seq: 26 16-APR-04 14:00 laws in place. replaced with a new time clock that runs from the discovery of the new time clock that runs from the replaced with a account for such the establishment of an escrow targeted funds or 18314_nlr_48-3 Sheet No. 41 Side B 04/29/2004 08:40:46 B 04/29/2004 41 Side Sheet No. 18314_nlr_48-3 18314_nlr_48-3 Sheet No. 42 Side A 04/29/2004 08:40:46 . . . . . D EV NN NN NN 459 ODE ODE . R A A A . C ISS OLO ODE ODE ODE C . C . C EV EV OWA R . R HIO ASH § 19-5301(1) (2002) . Tit. 14, § 752-E (West § 12-25.1-4 (2002) (com- ODE NN . § 16-90-308(c)(2) (Michie C . A AWS NN . § (com- 52:4B-28 (West 2002) . L TAT A DAHO NN . §§ (com- 29-13-403, 404 (2002) EN . S ODE NN . A EV A . C . R TAT E . § 17-14-31 (2002) (complainant has 5 . §§ 2002) (com- 1-40-303(b)(ii) (Michie RK ODE NN NN §§ 5 13-4202(B)(2) (2002) (complainant has . tit. 42 § 2002) (complainant 8312(b) (West . C A . § 54-218(a) (2002) (complainant has 5 years . A . tit. 22, § has 17(C) (West 2002) (complainant NN NN . § 53-9-125 (2002) (complainant has 1 year from NN NN ENN TAT ODE SON OF SAM SON OF . A NN . A . A . § (complainant has 5 years 611A.68(4)(b) (2002) . A . S . § has 5 346.165(2),(4) (Michie 2002) (complainant . C A A § 32-07.1-01(2) (2001) (complainant has 6 years from TAT NN YO TAT TAT TAT NN . S ODE . A . S . S . S . § (complainant has 5 years from 81-1838 (Michie 2002) ODE . A A EV . C EN NN . C . Tit. 11 § (complainant has 5 years from estab- 9103 (2001) TAT R KLA TAT §§ 2002) (complainant has 5 years from 23A-28A-3 (Michie . G . A . S NN ONT § has 5 years from establishment of 11-626 (2002) (complainant . S ENT . § 2002) (complainant has 10 years from 12.61.020(c) (Michie . § (complainant has 5 years from establish- 147.275(3)(b) (2001) AWS A EV INN TAT §from establishment of 41-9-80 (2002) (complainant has 5 years ONN RIZONA ROC L TAT TAT . R . S ODE P Y S ODE . S . § from date of notifica- 74-7319(d) (2002) (complainant has 6 months EV . § (complainant has 3 years from the establish- 949.165(10) (West 2001) . C EV RIM . C While many states use these laws to extend or reopen the laws to extend states use these While many NN NN . R In six states, the antiprofit law extends the time after the after the time extends law the antiprofit states, In six §§ has 3 years from notice of the funds); 14-2B-1 to 11 (2002)(prosecutor EL ODIFIED . R LASKA LA ., C . § from establishment of escrow 24-4.1-201 (2002) (complainant has 5 years . A EB R . A 122 ODE 121 NN NN TAT TAT A . C . A . § 2002) (complainant has 3 years from discovery of prof- 17-25-530 (Law. Co-op . § has 1 year from the establishment of escrow ac- 99-38-7(2002) (complainant A . S . S 122. A 121. A IS ODE NN AN NN TAT M K § (complainant has 3 years from establishment of escrow ac- 2969.03 (West 2002) count); O § has 5 years from the establishment of escrow account); 7.68.200 (2002) (complainant W.V 2001) (complainant has 5 years from the filing of the charges, presumably in the crimi- 2001) (complainant has 5 years from the filing nal prosecution); C 2002) (complainant has 3 years from the discovery of the profits of the crime); M 2002) (complainant has 3 years from the plainant has 5 years from establishment of escrow account); O plainant has 5 years from establishment (complainant has 5 years from establishment of escrow account); I years from establishment of escrow account); (complainant has 5 C into criminal royalties fund); S.C. C plainant has 3 years from date of last payment plainant has 3 years from establishment of escrow account); W plainant has 3 years from establishment S § from establishment of escrow account); 910.15(7) (2002) (complainant has 5 years K plainant has 5 years from the establishment of the escrow account). plainant has 5 years from the establishment years from establishment of escrow account to bring claim to commission); C of escrow account to bring claim to commission); years from establishment has 3 years from the discovery of the profits); R.I. G has 3 years from the discovery of the profits); years from date the Board receives profits); M years from date the Board from date of crime); M date of crime); N.D. C the date of conviction); O from the date on which the money is paid to the Crime Victims Board); M from the date on which the money is paid years from the establishment of escrow account); I years from the establishment establishment of escrow account); T escrow account); M 7 years from the date of the criminal indictment). date money is paid into escrow account); N.J. S date money is paid into escrow account); date of crime or discovery of perpetrator); A date of crime or discovery of perpetrator); ment of escrow account); P escrow account); A ment of the escrow account); W tion of funds); K lishment of escrow account); G lishment of escrow account); W account); D its); S.D. C count); N A A 2004] funds. \\server05\productn\N\NLR\48-3\NLR301.txt unknown Seq: 27 16-APR-04 14:00 statute of limitations to bring a civil action against a criminal action against bring a civil limitations to statute of to alter not use these laws states that do there are some tortfeasor, commission of the crime within which the victim may bring a civil victim may bring within which the of the crime commission action. C Y 18314_nlr_48-3 Sheet No. 42 Side A 04/29/2004 08:40:46 A 04/29/2004 42 Side Sheet No. 18314_nlr_48-3 18314_nlr_48-3 Sheet No. 42 Side B 04/29/2004 08:40:46 M K C Y [Vol. 48 A drastic de- . § 31-22-22 (Michie 124 NN 123 . §§ 5-2-6.3-1 to 7 (2002); . § 77-18-8.3 – 8.5 (2002). . A NN NN A TAT A ODE ODE . C C . §§(Michie 2002). 19.2-368.19 to .22 ND . § 944.512 (2002). Utah has laws that NN TAH A NN . A ODE . C TAT A . S LA . § 351-88 (2001); I NN . § N.M. S 780.768 (West 2002); . A NEW YORK LAW SCHOOL LAW REVIEW NN TAT A . S EV AWS R . L AW (1)(c) all funds and property “Funds of a convicted person” means (i)the department of correc- is an inmate serving a sentence with (ii) is serving a sentence of pro- is not an inmate or prisoner but who (iii)of probation or conditional dis- is no longer subject to a sentence 2(a). Every person, firm, corporation, partnership, association or OMP received from any source by a person convicted of a specified crime, or by received from any source by a person convicted child support and earned the representative of such person. . . excluding income, where such person: facility or federal correc- tional services or a prisoner at a local correctional tional institute . . .; or subject to an undischarged, bation or conditional discharge or is presently of imprisonment or person of indeterminate, determinate or finite term releasepost-release supervision or term of supervised . . .; or term of imprisonment or charge or indeterminate, determinate or definite of supervised release, and where period of post-release supervision or term maximum term or periods termi- within the previous three years: the full or discharge by a board of nated or expired of such a person was granted includes only [money received parole pursuant to applicable law . . . and of any kind, recovery, awards, within the three years from interests, benefit etc accrued before the expiration of the sentence.] other legal entity, or representative of such person, firm, corporation, part- nership, association or entity, which knowingly contracts for, pays, or agrees to pay: (i) any profits from a crime . . . to a person charged with or con- The alteration of the statute of limitations is a characteristic of limitations of the statute The alteration . C 124. New York statute states in relevant part: The 123. H ICH 2002) (repealed eff. July 1, 2006); V allow courts to prohibit a convicted person from selling his or her story as a condition allow courts to prohibit a convicted person U of a sentence of incarceration or probation. Florida does have an anti-profit statute, but it seems to be used to supply restitution and Florida does have an anti-profit statute, but action.does not require the victim to bring a civil the It, therefore, has no effect on existing statute of limitations. F M 460 of limitations.tort statute existing the law is the antiprofit Rather of an es- the creation by authorizing protect assets, usually used to or- and restitution satisfy civil judgments in order to crow account, existing tort timeframe. under the ders granted states.shares with the majority of other New York’s law Yet New other states with deviated from the practice of York has drastically the new lia- triggers the antiprofit law and thereby respect to what bility period. 2001 amendment, in addition In New York, after the liability period is by profits of the crime, a new to being triggered thousand dollars the receipt of funds totaling ten also triggered by child support, other than earned income and from any source provision. under the funds-of-a-convicted-person \\server05\productn\N\NLR\48-3\NLR301.txt unknown Seq: 28 16-APR-04 14:00 18314_nlr_48-3 Sheet No. 42 Side B 04/29/2004 08:4