Tax the Criminal, Not the Right

My object all sublime I shall achieve in time To make the punishment Fit the crime. --W. S. Gilbert, “The Mikado”

Under New York’s Son of Sam law, named for a serial killer, the punishment seemed to fit the crime so sublimely that the law was copied in 30 other states. Its key provision: Whatever other money a criminal might earn, he or she could not profit from selling the story of the crime itself. Instead, profits from any such sale were to be held in escrow for five years against possible claims by the crime victims.

What works in operetta, however, does not always work under the U.S. Constitution. Last Tuesday, Justice Sandra Day O’Connor, writing for the U.S. Supreme Court, ruled that “in the Son of Sam law, New York has singled out speech on a particular subject for a financial burden that it places on no other speech and no other income. The state’s interest in compensating victims from the fruits of crime is a compelling one, but the Son of Sam law is not narrowly tailored to advance that objective. As a result, the statute is inconsistent with the First Amendment.”

Suit had been brought by Simon & Schuster, publisher of “Wiseguy,” by Nicholas Pileggi with confessed criminal Henry Hill. Hill may now collect a hitherto-withheld $200,000 for his contribution to Pileggi’s best seller. Some in book publishing and film gleefully predict a mob of “true criminal” authors like Hill taking pen in hand now that their potential earnings seem less threatened.

They should modify their rapture. New York’s Gov. Mario Cuomo has directed his legal staff to rewrite the law to comply with O’Connor’s opinion, and the rewrite should be accomplished easily. O’Connor has ringingly endorsed the state’s right to compensate crime victims. All Cuomo’s staff need do, it would seem, is stipulate that all of a criminal’s earnings, not just book or film earnings, be available for these punitive purposes.

The conservative Supreme Court is to be commended for stoutly upholding the First Amendment over a law with broad conservative support. The State of New York is to be exhorted to make, on crime victims’ behalf, the necessary changes in a law that, however well-intentioned, was poorly drafted.