‘Son of Sam’ Law Needs Update in State

It’s called murder memorabilia.

Online and off, there is a vigorous trade in the artifacts of human misery. For a fee you can own a hair sample from convicted cannibal killer Arthur Shawcross, Night Stalker Richard Ramirez’s autograph or dirt from the crawl space of John Wayne Gacy’s Chicago home.

It is a despicable trade. And it is flourishing. In the summer of 1977, serial killer David Berkowitz terrorized New York City with a string of brutal murders. The rights to Berkowitz’s story became valuable given the notoriety of his crimes, and the New York Legislature was the first in the country to pass a “Son of Sam” law.

That law, and others modeled after it, was designed to seize the profits that infamous felons could earn from the sale of the rights to their stories.

But the Son of Sam laws, including California’s version, have not kept pace with changing technology or the inventiveness of these heinous killers and others who seek to profit from this grim trade.

Marc Klaas, father of Polly, the 12-year-old girl kidnapped from a slumber party in her own bedroom and killed by Richard Allen Davis, was the first to bring this problem to my attention. Klaas was furious that autographed letters from his daughter’s killer were being marketed over the Internet.

We worked together to draft Senate Bill 1565, to go after profits realized from the sale of murder memorabilia and place them in a constructive trust for the families of the victims. The Senate passed SB 1565 on a strong bipartisan vote, and the measure now moves to the Assembly.

But expanding the Son of Sam law to cover the sale of murder memorabilia by a felon’s representative or third parties is no simple matter. New York’s Son of Sam law was struck down by the U.S. Supreme Court, which held that it was too broad and might cover the works of Henry Thoreau, Malcolm X and the Rev. Martin Luther King Jr., all of whom acknowledged past criminal acts in their books.

California’s law was amended to comply with that decision, but it too is being challenged. Frank Sinatra Jr.’s kidnapper, Barry Keenan, sold his 1963 story to a magazine. Sinatra sued, asking for the proceeds of the 1997 sale. The Keenan case is before the California Supreme Court, after a court of appeals upheld the law.

The expansion of California’s Son of Sam law is not only more likely to survive constitutional challenge but may also assist in making the original law less subject to constitutional objection. Unlike the original law, which goes after story rights--a difficult area to draft given broad 1st Amendment protections--the expanded Son of Sam law would also apply to purely commercial activity, such as the sale of hair, fingernails, a guitar and other objects that have no expressive content.

Unlike the 1st Amendment context in which the government must show a compelling state interest to interfere with even a felon’s speech, the state has much broader power to regulate purely commercial transactions. There will be difficult cases for the courts to decide, such as where the murder memorabilia involves supposed “artwork” (a sketch by killer Gacy of mass murderer Jeffrey Dahmer selling for $41) or essays. But SB 1565 has been narrowly drafted so as not to prohibit the sales of these items; rather it would allow the victims’ families and the attorney general to go after any proceeds from the sale that were attributable to the notoriety of the crime.

This law would give those victims and the state some recourse to attack an utterly vile trade and a further victimization of those who have suffered enough.