UF graduate student evaluates flawed ‘Son of Sam’ laws

Published: December 6th, 2007

Category: Florida, Law, Research

GAINESVILLE, Fla. — Research by a University of Florida graduate student finds most state statutes designed to prevent criminals from profiting from telling the story of their crimes are ineffective and unconstitutional.

Christina Locke, who is in a combined program pursuing a master’s of mass communication and a law degree, wrote her master’s thesis on her research of the so-called “Son of Sam” laws in each state that has one.

These laws most often apply when a convicted criminal writes a book or collaborates on a movie project, Locke said. They are designed to seize the criminal’s profits and give the money to the victims or the victims’ families.

According to her thesis, 28 states have laws on the books modeled after the original 1977 New York law created to prevent the serial killer known as the Son of Sam from receiving any profits from the book “Confessions of Son of Sam.”

The problem, Locke said, is that the original New York statute was unanimously ruled a violation of the First Amendment by the U.S. Supreme Court and struck down in 1991. Since then, most of the derivative laws in other states have not been revised at all, leaving them critically vulnerable to constitutional challenges.

Because these laws restrict speech specifically based on its content, they are subject to the strictest judicial scrutiny. The Supreme Court said the New York law was dangerously overbroad and that if such restrictions had been in place in the past, they would have prevented the publication of important works such as Malcolm X’s autobiography and Thoreau’s “Civil Disobedience.”

Since 1991, California, Nevada and Rhode Island have had their Son of Sam laws overturned by courts on First Amendment grounds.

The solution is to use general forfeiture laws to claim assets and profits that would normally go to convicted criminals, Locke said.

General asset forfeiture laws allow the state to seize assets that are the proceeds or instruments of crime. These laws are frequently used in drug trafficking cases and are not specifically geared toward preventing criminals from any kind of speech. Consequently, they are not subject to the same strict constitutional scrutiny as Son of Sam laws, but their effect can be the same as long as the seized funds are used to compensate victims, Locke said.

“Politically, maybe general forfeiture laws aren’t as effective,” Locke said, “but they work, which I think is more important.”

Florida used general forfeiture statutes in 1994 to seize proceeds from Gainesville serial killer Danny Rolling’s macabre artwork and a book co-written with his then-girlfriend Sondra London, “The Making of a Serial Killer.” The state split the $16,000 it took among the five families of the killer’s victims, Locke said.

The decision to simply use the general forfeiture statute in Rolling’s case, the exact situation for which Son of Sam laws were created, probably indicates that prosecutors did not have faith in the constitutional viability of Florida’s “Son of Sam” law, Locke said.

The most important conclusion reached by her research, Locke said, is that state legislatures must not wait until a court overturns their “Son of Sam” laws to recognize the need to make revisions or change their policies.

“These laws are so rarely used, but when they are, they are really important,” Locke said. “Why wait until a high-stakes case comes along and it’s too late?”

Credits

Writer
Jay Goodwin
Source
Christina Locke, clocke@ufl.edu, 352-231-5085

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