Shearer, Bruce --- "Making crime pay" [1999] ALRCRefJl 17; (1999) 74 Australian Law Reform Commission Reform Journal 70

---

Reform Issue 74 Autumn 1999

This article appeared on pages 70 - 73 of the original journal.

Making crime pay

The Australian Law Reform Commission has been asked to consider the issue of literary proceeds as one part of its inquiry into Commonwealth proceeds of crime legislation.

Bruce Shearer,* from the Communications Law Centre, gives his perspective on this complex issue.

When people become aware that offenders, upon leaving prison, have written stories about their crime, they seem to respond in two ways. They express outrage that the offender could profit from their life of crime, and then a good number of the public go straight out and purchase the book.

Crime fiction is a very lucrative market. True crime, where the subject is ‘real’, takes us out of the world of creative imagination and into the world of informed detail. Readers of true crime fiction find this fascinating and they vote for it with their wallets.

This is an extremely confronting issue, which needs to be seen from different perspectives. The victims of crimes and their families are grieving from wrongs done. Convicted criminals who have served their time feel as free as any other citizen to tell their story. The general public feels for the victims and families, but still can’t wait to hear the details.

The ‘Son of Sam’

‘Literary proceeds of crime’ generally refer to the profits gained by an offender from the publication or exploitation in any media form of the details or experiences relating to their crimes or life of crime.

The ‘Son of Sam’ case in the US in the late 1970s produced the first literary proceeds of crime legislation. David Berkowitz pleaded guilty to killing six people in New York. He had dubbed himself ‘Son of Sam’ and wrote a book of the same title, claiming that his neighbour’s dog Sam had told him to commit the crimes. The New York court found Berkowitz to be “acting under a legal disability” and appointed a “conservator” or official custodian for him.

A ‘Son of Sam’ law was passed in New York giving the courts the right to confiscate ‘literary proceeds of crime’ in response to a public outcry from those angry that Berkowitz could benefit financially from the deals he was making. By 1997, Congress and 36 states in the US, and parliaments in the UK and Canada, had passed such laws.

The legislation was successfully used to confiscate the proceeds from literary sales involving several well known crimes although, curiously, it was not the vehicle by which Berkowitz’ literary proceeds were redirected. Although a court upheld the validity of the law and the right of the conservator to hold Berkowitz’ profits from literary sales for the compensation of crime victims, the New York Crime Victims Board found that Berkowitz, through the conservator, had voluntarily paid the proceeds from the book Son of Sam to the victims or their estates.

These types of laws often have several dimensions. Some are part of broader legislative schemes which permit the confiscation of the proceeds of crime more generally: for example, from drug trafficking and money laundering. New York’s founding ‘Son of Sam’ law is typical of those under which the sums confiscated are paid to victim compensation funds rather than to general revenue - so the policy goals are wider than ‘unjust enrichment’.

In 1991 New York’s law was struck down by the US Supreme Court. In Simon and Schuster v New York Crime Victims Board, [1991] USSC 152; [502 US 105 (1991)] the court held that the effect of the New York State legislation was to unduly limit speech protected under the First Amendment. It was therefore unconstitutional. Although the court felt there were ‘compelling state interests’ in ensuring that criminals did not profit from their crimes and that victims were compensated by those who harmed them, the First Amendment required ‘content-based laws’ of this kind to be narrowly tailored. The court’s reasoning thus left open the possibility of a constitutionally-valid ‘Son of Sam’ law, but the New York State law, as drafted, was too broad. The mere mention of even a ‘crime’ that did not result in a conviction would merit confiscation. The court contended that this would catch the proceeds of books such as The Autobiography of Malcolm X and Thoreau’s Civil Disobedience.

However, other State laws continue to be applied, some with amendments to guard against the problems of the original New York law. At the time of writing, the ‘Queen of Serial Killer Journalists’, Sondra London, was appealing against a decision by the Florida circuit court to confiscate money she made marketing the work of the ‘Gainesville Slasher’ Danny Rolling. Rolling was convicted of murdering five college students in 1990. This is said to be the first time a ‘Son of Sam’ law has been used against an author working with a felon. London was once engaged to Rolling, a ‘unique and special relationship’, which was relevant to the judge’s decision. London claims Florida’s law is unconstitutional.

Australian law

The Australian parliament passed a Proceeds of Crime Act in 1987. Similar legislation has been passed in Victoria (1986), Queensland (1989), Tasmania (1993) and South Australia (1996). The separate federal and State legislation reflects the fact that the relevant acts are crimes under the laws applying in different jurisdictions: for example, most criminal matters fall under State laws, while certain kinds of drug-related offences and some matters relating to international conventions fall under Commonwealth law.

The prevailing view is that at present literary proceeds would not be viewed as ‘proceeds’ under the Commonwealth Act. The Australian Law Reform Commission is currently undertaking an inquiry into whether the Act should be amended to include literary proceeds of crime.

The Australian State Acts differ in the discretion they give to the courts when ordering the confiscation of literary proceeds. The Victorian Act expressly, and the Queensland Act impliedly, provide for social utility or public benefit criteria to be taken into consideration. In these States the courts may choose not to order confiscation, or to order partial confiscation, in appropriate circumstances. The South Australian and Tasmanian Acts provide no such flexibility.

Forfeiture applications can be brought by State or federal police under the direction of the relevant Director of Public Prosecutions (DPP) in the jurisdiction where the infringement has taken place. These are civil proceedings arising out of the civil remedies function of the Director of Public Prosecutions.

Should crime pay?

There are a number of arguments in favour of the confiscation of literary proceeds of crime.

First, it can seem unjust that criminals profit financially from acts which the society has stated, through its laws, are unacceptable. This is the primary basis for the public outrage in the US that led to the ‘Son of Sam’ laws. Second, ‘unjust’ rewards may become even more disturbing if they are put to work in the commission of further crimes. Third, it is argued that others could be encouraged to commit crimes because of the notoriety and financial rewards which accrue to those who do. Fourth, it is argued that retelling the stories can be hurtful to victims and their families and friends. Fifth, supporters of ‘Son of Sam’ laws say they do not prevent speech itself, only the earning of financial rewards from it.

On the other hand, an offender who has served any sentence or paid any financial penalty imposed by the justice system may be seen to have paid sufficiently for their crime. Any further restriction of rights can be seen as punishment beyond sentence. The telling of their stories in any medium is not unlawful and it may seem inappropriate for the authors to be unable to earn financial rewards from it. Indeed, the financial rewards might be an important kick-start to a new life, and the confiscation of proceeds statutes generally do not prevent other people, such as journalists, profiting from re-telling the same stories (unless they are acting in collaboration with the criminal). The telling of stories about criminal activities and lives may also help society to understand them: the public which are victims of them, the professional criminologists who try to explain them, the law enforcers who try to detect, solve and reduce their incidence, the criminals themselves for whom retelling may be part of the process of rehabilitation. Or they may simply be forms of self-expression by individuals which free societies should tolerate.

Some commentators have suggested that some of the goals of these kinds of laws can be achieved more directly. At conviction US judges have imposed orders for restitution which specifically include future media-related profits or probation conditions imposing a gag on public comment about the crimes. While these mechanisms may also be criticised for chilling speech, they do not, like the confiscation of proceeds statutes, directly extend punishment beyond the criminal’s sentence.

Australia has had some significant examples of ‘true crime’ stories in recent years. Mark ‘Chopper’ Read, convicted for offences including assault with a weapon, malicious wounding and kidnapping, has written several books about his life, in conjunction with editor and Melbourne Age journalist, John Silvester. The eight books have sold over 300,000 copies. The Matriarch, the story of Kath Pettingill - the mother of deceased crime figure Dennis Allen, whose two other sons were charged with but acquitted of the Walsh Street murders and herself convicted of indecent language and harbouring an escapee - has sold 25,000 copies. Heather Parker, a Victorian former prison warder who assisted her lover and another prisoner to escape from custody, contracted with New Idea magazine to tell the story of the escape and ultimate shootout for the sum of $52,500.

Silvester argues that legislation allowing for confiscation of literary proceeds is a form of concealed censorship. If offenders thought that their profits from writing a book could be confiscated, they wouldn’t bother to do the hard work of writing it. Amanda Hemmings, non-fiction publisher at PanMacmillan, which published The Matriarch, agrees that many people with criminal backgrounds see writing a book about their experiences as a way of making a living. If they believed that their literary proceeds could be confiscated, particularly by authorities with whom they have severe antipathies, they would never pick up a pen.

There have been no confiscations of the proceeds from Chopper Read’s books or from The Matriarch, but the proceeds of the deal with Heather Parker were successfully confiscated under the Crimes (Confiscation of Profits) Act 1986 (Vic). Since applications for forfeiture or confiscation of literary proceeds occur at the discretion of the DPP or government solicitor in different jurisdictions (no applications were made in relation to the Read or Pettingill books) there is no comprehensive, readily accessible record of the reasons such applications have and have not been made in particular circumstances.

John Silvester argues that a distinction needs to be drawn between situations where the proceeds result from the labour, literary skills and business acumen of the convicted person, and those, like the Heather Parker case, which he says are an example of ‘exploitative chequebook journalism’ where the offender simply sold an exclusive story to the highest bidder. Chopper Read, says Silvester, laboured for many months to produce his books with no financial guarantee as to sales.

The recent Florida case noted above also raises this issue of the relationship between published work and the criminal subject. The judge felt the case was one where a criminal and an accomplice were effectively working as one so that the profits of the accomplice deserved to be confiscated as if they were those of the criminal. So the proceeds of another version of the story - perhaps less complete, and less reliable - told by a less well-connected storyteller, might escape confiscation.

These are complex issues which require sensitive balancing of the public’s faith in the fairness of our systems of justice and the rights of individuals to tell stories and of societies to listen to them. In certain tightly prescribed circumstances confiscation of literary proceeds may be justified, but truly just and tolerant communities may generally be better off accepting some ugly spectacles than policing too vigorously the boundaries of human storytelling.

* Bruce Shearer is a Research and PolicyAdviser with the Communications Law Centre in Melbourne.