Amicus Curiae Brief — Simon & Schuster, Inc. v. Members of NY State Crime Victims Bd.

No. 90-1059

Iu the Supreme Court of the United Stat

OCTOBER TERM, 1990

SIMON & SCHUSTER, INC., PETITIONER

Vv.

MEMBERS OF THE NEW YorRK STATE CRIME VICTIMS

BOARD, ET AL.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

ROBERT S. MUELLER, III

Assistant Attorney General

Davin L. SHAPIRO

Deputy Solicitor General

RONALD J. MANN

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 514-2217

a

PeCT AVAILABLE COPY

QUESTION PRESENTED

Whether New York’s “Son-of-Sam” law impermis-

sibly restricts speech in violation of the First Amend-

ment by providing for sequestration, for certain lim-

ited purposes, of proceeds payable to any person with

respect to expressive works about that person’s

crimes.

(1)

TABLE OF CONTENTS

Page

Interest of the United States... at =.

Statement .......... Sarria iaiaiatddinbiiabtebchccnentensstiesetiniaabicinislchiedammutnen

Summary ofargument... eee 5

Argument:

I. Statutes limiting the profits criminals receive

from their crimes further important govern-

ment interests ................ ae tliat 6

II. In light of the varying forms of such statutes,

the Court should decide the case as narrowly as

EES SR ae 7

III. The federal statute is an integral part of the

sentencing process and serves several important

interests in connection with that process —_ . al

ees 13

EEE SENDER la

TABLE OF AUTHORITIES

Cases:

Ashwander v. TVA, 297 U.S. 288 (1936) . > ~

Bell v. Wolfish, 441 U.S. 520 (1979) 10

Caplin & Drysdale, Chartered v. United ‘States,

Me Wee Ge GRD nnn nccccc cn cccccceccncenses............ = 12

Kelly v. Robinson, 479 U.S. 36 (1986) * 13

Meachum Vv. Fano, 427 U.S. 215 (1976) . 10

National Society of Professional Engineers v.

United States, 435 U.S. 679 (1978) - i 10

NLRB V. Gissel Packing Co., 395 U.S. 575 ( 1969). 10

O’Lone V. Estate of Shabazz, 482 U.S. 342 (1987) 10

Price Vv. Johnston, 334 U.S. 266 (1948) 10

Renton v. Playtime Theatres, Inc., 475 U.S. 41

(1986) . a 11

Richardson Vv. Ramirez, 418 US. 24 (1974) . 10

Turner V. Safley, 482 U.S. 78 (1987) 11

(IT)

IV

Cases—Continued: Page

United States v. Brown, 744 F.2d 905 (2d Cir.),

cert. denied, 469 U.S. 1089 (1984) 0.00000 13

United States v. Eichman, 110 S. Ct. 2404 (1990) . 11

Constitution and statutes :

U.S. Const. Amend. Tce. 1, 4, 9, 10, 11

Victim and Witness Protection Act of 1982, Pub.

SS GG eee x

| ETN na aac en aE 4,8

Victims of Crime Act of 1984, Pub. L. No. 98-473,

Tit. II, Ch. XIV, 98 Stat. 2170 —.....0 1, 3

| Fl eeeeeeee 1, 3, 4, 8, 9, 10, 11, 12, la

18 U.S.C. 3681 (a)... ET Sa SDE A SEND 4, la

OI oii sccccenmncnsemestanenacsunmonn 5, la

18 U.S.C. 3681 (c) (1) (A) ~...0-. en. 5, la

18 U.S.C. 3681 (c) (1) (B) 20. 5, 12, 2a

Be ls I OD CD cccncccecececceccescecenecsseeses 5, 9, 12, 2a

ak ateunuiounieniannies 4

ee | cismeeeeennieiiaaien x

a ee 5

CR aie 8

Cal. Civ. Code § 2225 (West 1985) .... 7

Fla. Stat. Ann. § 944.512 (West 1985) 7

N.Y. Exec. Law (McKinney 1982):

Ss ee: So a

§ 632-a(1) _... ao ceduiateiaiaiiniiaintaeiaiieiad ants

Ee a

Wash. Rev. Code Ann. § 7.68.240 (Supp. 1991)

Wis. Stat. Ann. § 949.165(2) (b) (Supp. 1990) .....

Miscellaneous:

Comment, Criminal Antiprofit Laws: Some

Thoughts in Favor of Their Constitutionality,

76 Calif. L. Rev. 1853 (1988) ...........0.00000 7

130 Cong. Rec. 23,801 (1984) 2.0000. 4

Ilearing on S. 2423 Before the Senate Comm. on

oo =) bo be te

the Judiciary, 98th Cong., 2d Sess. (1984) 6,13

Lamborn, Remedies for the Victims of Crime, 43

S. Cal. L. Rev. 22 (1970) .......... tA 13

S. Rep. No. 497, 98th Cong., 2d Sess. (1984) aan 3

Strauss, Persuasion, Autonomy, and Freedom of

Expression, 91 Colum. L. Rev. 334 (1991) ...... ‘a 11

an the Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-1059

SIMON & SCHUSTER, INC., PETITIONER

Vv.

MEMBERS OF THE NEW YORK STATE CRIME VICTIMS

BOARD, ET AL.

ON WRIT OF CERTIORAR! TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

This case presents the question whether New

York’s “Son-of-Sam” law—a statute that provides for

sequestration of proceeds payable to a person for ex-

pressive works about that person’s crimes—is con-

sistent with the First Amendment. The United

States submits this brief to inform the Court of an

aspect of the case not fully addressed by the parties.

The Victims of Crime Act of 1984, Pub. L. No. 98-

473, Tit. II, Ch. XIV, 98 Stat. 2170, contains provi-

sions, codified at 18 U.S.C. 3681,’ that resemble the

' The full text of Section 3681 is set out as ar. Appendix to

this brief.

(1)

2

New York statute at issue in this case in certain

respects but that differ in other significant respects.

The United States is filing this brief so that the Court

can evaluate the New York statute with more knowl-

edge of the range of forms such statutes can take.

STATEMENT

1. In 1977, New York enacted the so-called “Son of

Sam” law, N.Y. Exec. Law § 632-a (McKinney

1982), which generally requires any person “accused

or convicted of a crime” in New York to pay over to

the Crime Victims Board any moneys that person

earns from any bock, movie, or other expressive work

depicting the person’s crimes. Jd. § 632-a(1).2. In

1987, New York attempted to enforce Section 632-a

_ against petitioner, the publisher Simon & Schuster,

with respect to sums Simon & Schuster had paid to

Henry Hill for the book Wiseguy, which chronicles

Hill’s experiences in organized crime." Simon &

Schuster then filed an action in the United States

District Court for the Southern District of New

York, contending that Section 632-a is unconstitu-

tional and seeking declaratory and injunctive relief.

* Although the operative section of the statute uses the

phrase “accused or convicted,” a later section of the statute

defines a “convicted” person to include “any person who has

voluntarily and intelligently admitted the commission of a

crime for which such person is not prosecuted.” § 632-

a(10) (b).

* Although Hill apparently was not convicted of the crimes

described in the book, the New York Crime Victims Board

determined that the book contained his admission to involve-

ment in crimes. Pet. App. 50a. This admission brought Hill

within the statutory definition of a “convicted” person set

forth in Section 632-a. See note 2, supra.

3

The district court rejected petitioner’s challenge. It

concluded that the statute imposed only an incidental

burden on speech and that the State’s interest in

compensating crime victims justified this burden.

Pet. App. 33a-42a. On appeal, the Court of Appeals

for the Second Circuit affirmed. Although it con-

cluded that the statute imposed a direct burden on

protected speech and thus was subject to review

under a standard of strict scrutiny, it nevertheless

upheld the statute on the grounds that it was nar-

rowly tailored to serve the government’s compelling

interest in preventing criminals from profiting by

exploiting the commercial value of stories related to

their crimes while their victims went uncompensated.’

Id. at 10a-16a.

2. New York’s statute is not unique. As the peti-

tion suggests, the United States, as well as a large

number of States, have enacted programs based in

part on the New York statute. See Pet. App. 59a-

60a. The federal statute. 18 U.S.C. 3681, the text of

which is set out in the Appendix to this brief. was

passed, with strong bipartisan support, as part of the

Victims of Crime Act of 1984 (Tit. II, Ch. XIV of

Pub. L. No. 98-473, 98 Stat. 2170), after more than

a decade of congressional debate regarding the need

for the federal government to provide compensation

and assistance to the victims of crime. See S. Rep.

No. 497, 98th Cong., 2d Sess. 1-2 (1984). In response

to the perceived unfairness of leaving victims uncom-

pensated while allowing criminals to profit from re-

ports of their misdeeds, id. at 6-7, Congress included

* Judge Newman dissented, arguing that the statute could

not survive the strict scrutiny applicable to content-based

speech restrictions. Pet. App. 20a-26a.

4

in the Act a narrowly tailored program derived from

the New York statute at issue in this case."

The United States’ program is an integral part of

the sentencing process. As such, at every stage it is

subject to discretionary determinations designed to

provide appropriate punishment in light of the par-

ticular circumstances of the crime, the defendant,

and the victim. First, it comes into play only after a

criminal conviction, only upon the motion of the

United States Attorney, and only for specified offenses

against the United States.’ Section 3681(a). Second,

even if the U.S. Attorney seeks an order under Sec-

tion 3681, relief is not automatic. Rather, relief is

available only in two circumstances: if “the court

determines that the interest of justice * * * so re-

quires” or if “an order of restitution under this title

so requires.” " Ibid.

If an order is issued, the proceeds are paid to the

Attorney General to be placed in escrow in the Crime

5 The legislative history of Section 3681 demonstrates Con-

gress’s concern for safeguarding First Amendment interests.

Many of the distinguishing features of the federal statute

were introduced after a speech by Senator Mathias reminding

the Senate that “the writings of criminal defendants have

played an important role in our society and culture” and that

the bill “raises important first amendment questions and de-

mands the most careful scrutiny.” 130 Cong. Rec. 23,801

(1984).

* The statute applies only to the crime of delivering sensi-

tive information to foreign governments, 18 U.S.C. 794, and

to crimes that cause physical harm to individuals. Thus, it

would not apply to most of the literary works described in

the petition, see Pet. 14.

7 Orders of restitution issued as part of federal criminal

sentences are described in 18 U.S.C. 3663.

5

Victims Fund * in the Treasury for five years after

the date of the order. Section 3681(c)(1). During

this five-year period, the proceeds may be levied upon,

without further proceedings, to satisfy judgments

rendered by federal courts with respect to crimes for

which the defendant has been convicted or to satisfy

fines imposed by federal courts. Section 3681(c) (1)

(A). If the court determines that it serves the inter-

est of justice, the funds also can be levied on to pay

similar judgments rendered by state courts or to pay

legal fees incurred by the defendant in connection

with the offense for which he was convicted (but fee

payments cannot exceed 20°; of the proceeds). Sec-

tion 3681(¢c)(1)(B). Finally, at the conclusion of

the five-year period, the court has discretion to direct

the disposition of any remaining proceeds, and is au-

thorized to require that all or any part of the remain-

ing proceeds be paid into the Crime Victims Fund.

Section 3681(c) (2).

SUMMARY OF ARGUMENT

The government has an important interest in limit-

ing the ability of criminals to profit from expressive

works that describe their crimes. The United States

and many of the States have responded to this inter-

est with statutes that resemble the New York Son-

of-Sam law in certain respects, although many of

those laws differ significantly from the New York

law. The fecleral statute, for éxample, does not apply

until a person has been convicted and thus may be

*The Crime Victims Fund is a separate account in the

Treasury—also established pursuant to the Victims of Crime

Act of 1984—that is designed to fund state programs provid-

ing compensation or other assistance to crime victims. See

42 U.S.C. 10601-10604,

6

subject to a standard of review less rigorous than

that of strict scrutiny. Moreover, as part of the

criminal sentencing process, the federal statute serves

the government’s strong interests in preventing one

who has been convicted of a crime from profiting

from that crime, in providing restitution to his vic-

tims, and in rehabilitating him. In light of the dif-

ferences among the various statutes dealing with this

matter, this Court should resolve the case before it on

grounds that do not unnecessarily call into question

statutes that differ from the New York statute in

relevant respects.

ARGUMENT

I. STATUTES LIMITING THE PROFITS CRIMINALS

RECEIVE FROM THEIR CRIMES FURTHER IM-

PORTANT GOVERNMENT INTERESTS

Statutes limiting the profits criminals receive from

expressive works that describe their crimes substan-

tially further government interests of the highest or-

der. As one former Congressman put it in testimony

to the Senate Judiciary Committee while the Com-

mittee was considering the legislation that led to Sec-

tion 3681, “there is something basically wrong about

a system of justice which allows a criminal to profit

from his crime while his victims continue to suffer,”

Hearing on S. 2423 Before the Senate Comm. on the

Judiciary, 98th Cong., 2d Sess. 23 (1984) (statement

of M. Butler). The spectacle of criminals profiting

from books or movies recounting their unlawful ac-

tions understandably and appropriately is perceived

as aggravating the harm already inflicted on the vic-

tims of those actions. Moreover, such a spectacle can

only undermine public faith in the efficacy of the jus-

tice system. Because these interests are harmed most

7

dramatically by works focusing on the criminal’s

depiction of his crimes, it is not surprising that the

statutes themselves typically focus on this type of

speech.’ Thus, we believe the widespread recognition

of these interests by the States, and by the federal

government, is entitled to respect.

II. IN LIGHT OF THE VARYING FORMS OF SUCH

STATUTES, THE COURT SHOULD DECIDE THE

CASE AS NARROWLY AS POSSIBLE

We note that this is the first case to come before

the Court in this area and that the New York statute

that is challenged here represents only one of a range

of approaches. The California provision, for example,

is drafted as a specialized application of a general

statute that places the proceeds of certain conduct in

a constructive trust for the benefit of the victim. See

Cal. Civ. Code § 2225 (West 1985). Florida has

taken yet another approach, cresting a statutory lien

on the proceeds of certain accounts of felonious crimes.

See Fla. Stat. Ann. $ 944.512 (West 1985). Some

statutes commit all or a portion of funds remaining

after satisfaction of judgments against the perpetra-

tor of a crime to general funds for victims of crimes.

E..g., Wash. Rev. Code Ann. § 7.68.240 (Supp. 1991)

(50% returns to the criminal; 50% goes to the fund).

® To use an example set forth in the petition, Pet. 5, a con-

vict’s book regarding prison conditions cannot reasonably be

thought to undermine public faith in the criminal process in

the same way as a book generating profits from depictions of

the convict’s criminal actions.

For a detailed analysis of the California statute, see

Comment, Criminal Antiprofit Laws: Some Thoughts in Favor

of Their Constitutionality, 76 Calif. L. Rev. 1358, 1357-1361

(1988).

8

Still other statutes apply only to actual convictions,

as opposed to nonjudicial admissions of guilt. £.9.,

Wis. Stat. Ann. § 949.165(2)(b) (West Supp. 1990).

In view of the range of statutory approaches, we be-

lieve it is especially appropriate for the Court to focus

on the particular features of the statute before it, and

to decide no more than is necessary to the disposition

of this case. See Ashwander v. TVA, 297 U.S. 288,

347 (1936) (Brandeis, J., concurring).

III. THE FEDERAL STATUTE IS AN INTEGRAL PART

OF THE SENTENCING PROCESS AND SERVES

SEVERAL IMPORTANT INTERESTS IN CONNEC-

TION WITH THAT PROCESS

A. The most important feature of the federal stat-

ute is the integral role it plays in the sentencing proc-

ess. Like several other provisions of victim assist-

ance legislation,” this statute provides for a new

criminal penalty, in addition to the traditional penal-

ties of fines and prison sentences. The penalty au-

thorized by Section 3681 is straightforward: the

judge is authorized to order the convicted defendant

to turn over to the Attorney General all profits he

secures from expressive works related to the crime

11 For example, the Victim and Witness Protection Act of

1982, Pub. L. No. 97-291, 96 Stat. 1248, includes a provision

authorizing sentencing judges to enter restitution orders di-

rectly in favor of victims of certain crimes. See 18 U.S.C.

3663. Also, the Victims of Crime Act of 1984, in addition to

the remedy set forth in Section 3681, provides for a small

special assessment—to be imposed on all persons convicted of

crimes against the United States—ranging from five dollars

for Class C misdemeanors to $200 for felonies. 18 U.S.C.

3013. These funds go to the Crime Victims Fund described in

note 8, supra. See 42 U.S.C. 10601 (b) (2).

9

for which he has been convicted.” As is traditional

in the area of criminal sentencing, the precise amount

of any forfeiture is left to the sentencing court’s dis-

cretion. Here, the court may impose the penalty of

forfeiture only if it determines that it is required by

a restitution order imposed as part of the sentence

or that “the interest of justice * * * so requires.” ™

Accordingly, unlike the speech-related restrictions

analyzed in this Court’s decisions under the First

Amendment, the sanction in Section 3681 is part of

the criminal sentence itself. It is, of course, true that

“convicted prisoners do not forfeit all constitutional

protections by reason of their conviction” and that

2 Section 3681(c) (2) provides that the funds will be dis-

tributed at the end of the five-year period as the court directs.

In the absence of judicial interpretation—and there does not

appear to have been any to date—it is difficult to predict how

sentencing courts ultimately will dispose of these proceeds.

(We have been informed by the Office for Victims of Crime

in the Department of Justice that the statute has been applied

in only a few instances and has not yet generated any signifi-

cant sum of money.) It is fair to expect, however, that in

appropriate cases, remaining funds will go to the Crime Vic-

tims Fund, because Section 3681(c) (2) expressly indicates

that this is an acceptable disposition.

8 The reference to the “interest of justice” should enable

the court to ensure that the sentence is appropriate in light

of the nature of the work. For example, if discussion of the

crime constitutes only a small part of the work, it may be

expected (in the absence of any unpaid restitution orders)

that the trial judge may decide not to enter an order under

Section 3681, or to enter an order affecting only a portion of

the proceeds. Once again, prediction is hindered by the

absence of any cases interpreting or applying these provi-

sions. But it is clear that the statute leaves it to the sound

discretion of the sentencing court to ensure that the statute

is not applied in ways that do not further its purposes.

Ne

10

they “clearly retain protections afforded by the First

Amendment,” O’Lone v. Estate of Shabazz, 482 U.S.

342, 348 (1987) (quoting Bell v. Wolfish, 441 U.S.

520, 545 (1979)). On the other hand, it also is the

case that “[ljawful incarceration brings about the

necessary withdrawal or limitation of many privi-

leges and rights, a retraction justified by the consid-

erations underlying our penal system,” Price y.

Johnston, 334 U.S. 266, 285 (1948). Indeed, the

Court has allowed States to remove voting rights

from convicted felons. Richardson vy. Ramirez, 418

U.S. 24 (1974). Criminal convictions, in other words,

have been held in appropriate circumstances to war-

rant deprivations that otherwise would not be ac-

ceptable. See Meachum v. Fano, 427 U.S. 215, 224

(1976)."

Thus, it is far from clear that a standard of strict

scrutiny should be applied in determining the validity

of a provision like Section 3681."° Rather, a less

4 Similarly, the Court has made it clear in analogous civil

contexts that the First Amendment does not prevent federal

courts from enforcing federal statutes in ways that limit

speech of specified content. See National Society of Profes-

sional Engineers Vv. United States, 435 U.S. 679, 697-698

(1978) (rejecting a First Amendment challenge to an order

entered under the Sherman Act that prohibited the defend-

ants from making statements ‘that otherwise were legal:

explaining that “[t]he standard against which the order must

be judged is whether the relief represents a reasonable method

of eliminating the consequences of the illegal conduct”) ;

NLRB V. Gissel Packing Co., 395 U.S. 575, 616-620 (1969) (ex-

plaining that the First Amendment does not bar the NLRB

from preventing employers from expressing their sincere

beliefs regarding the adverse consequences of unionization).

* On this point, we note that Section 3681 evidently is not

based on an intention to suppress speech. If Congress had

intended to suppress the speech of convicts, it might have

11

stringent standard may be warranted—one that

would recognize the strong government interest in

imposing appropriate punishment for criminal con-

duct and would consider whether the punishment was

“reasonably related to the government’s legitimate

penological interests,” Turner v. Safley, 482 U.S. 78,

89 (1987).

B. Whether the standard is one of strict scrutiny

or is less exacting, the integration of the federal

statute into the sentencing process serves several com-

prohibited persons convicted of federal crimes from partici-

pating in expressive works describing their crimes. Rather,

it appears that Congress was seeking to further the twin aims

of enhancing the prospects for compensation of the victims

of crimes and of preventing convicts from profiting by ex-

ploiting the public taste for depiction of crimes. Complete

suppression of speech would not be necessary to further these

interests. Indeed, it would frustrate them by limiting the

profits available to compensate victims.

Similarly, it is important that the primary purpose of Sec-

tion 3681, although it may be characterized as content-based,

is not to regulate speech “out of concern for its * * * com-

municative impact,” United States v. Eichman, 110 S. Ct.

2404, 2409 (1990) (emphasis added). The principal reason

for singling out this speech is not a fear that it will per-

suade its audience of the truth of some unorthodox and dis-

favored message, but rather a concern that dissemination

of the speech is particularly likely to aggravate the harms

suffered by the victims of the crimes committed by the

speaker. See Strauss, Persuasion, Autonomy, and Free-

dom of Expression, 91 Colum. L. Rev. 334, 335-338 (1991)

(arguing that a principal purpose of the First Amendment

is to prevent the government from limiting speech “on the

ground that the speech is likely to persuade people to do

something that the government considers harmful”); cf.

Renton Vv. Playtime Theatres, Inc., 475 U.S. 41, 47-50 (1986)

(applying a lower standard of scrutiny to a regulation that

focused on the secondary effects of the speech).

12

pelling interests. Most significantly, as part of a

sentencing statute, Section 3681 constitutes a partic-

ular application of the recognized principle that the

government is entitled to recover from a convicted

criminal the proceeds of his crime. The convict who

has committed murder has no greater right to profit

from his crime than the bank robber has to profit

from his. Cf. Caplin & Drysdale, Chartered v. United

States, 491 U.S. 617, 629-631 (1989) (recogniz-

ing the strength of the government’s interest in re-

covering forfeitable assets).

This interest is particularly important here, where

the primary purpose of the forfeiture is to enhance

restitutionary justice by creating a fund to satisfy

judgments rendered in favor of victims.’® Because

those convicted of crime frequently are judgment-

proof, it seems entirely appropriate for Congress to

16 Indeed, except for the payment of the criminal’s fines and

a narrow allowance for the defendant’s attorney’s fees, Sec-

tion 3681(c) (1) (B), compensation of victims of the crime is

the only purpose to which the assets can be put for five years.

After five years have passed, during which time it may be

assumed that the criminal’s victims (or their representatives)

will have had an opportunity to claim compensation, the trial

judge has discretion to direct the final disposition of the

funds.

Section 3681(c) (2) provides that, after five years, remain-

ing funds may be paid to the Crime Victims Fund, and thus

be made available to assist other crime victims. Although this

disposition may go beyond the government’s restitutionary

interest (by taking more of the criminal’s assets than is nec-

essary to compensate the victims of his crimes), it plainly

serves the government’s salutary interest in compensating all

crime victims; if the government is entitled—as it surely is—

to forfeit the proceeds of crime and deposit them in the gen-

eral treasury, then a fortiori it is entitled to forfeit the pro-

ceeds and use them to compensate and assist the victims

of crime.

13

earmark this particular source of a criminal’s funds

—earned from exploitation of his crime—for pay-

ment of judgments obtained by his victims.”

We note also that a forfeiture order of this kind

may be seen as serving not only the goals of retribu-

tion and compensation of victims, but also of reha-

bilitation. By requiring that the profits arising out

of their crimes be expended on compensation to and

assistance of the victims of crimes, the statute may

help criminals to recognize the tragic costs that crim-

inal actions impose on victims. See Lamborn, Reme-

dies for the Victims of Crime, 43 S. Cal. L. Rev. 22,

27 (1970); United States v. Brown, 744 F.2d 905,

909 (2d Cir.), cert. denied, 469 U.S. 1089 (1984):

cf. Kelly v. Robinson, 479 U.S. 36, 52 (1986) (not-

ing that criminal restitution orders further the

state’s interest in rehabilitation).

CONCLUSION

The New York statute before this Court is only

one of many programs adopted by state and federal

legislatures in order to further the public interest in

preventing criminals from profiting from their

crimes. We urge the Court to recognize the substan-

tial interests underlying all these statutes; at the

same time, we urge that on this first occasion involv-

ing a challenge to the validity of such a statute, the

17 Compare Hearing on S. 2423 Refore the Senate Comm.

on the Judiciary, 98th Cong., 2d Sess. 23 (1984) (state-

ment of M. Butler) (“In my view, this legislation does little

more than extend a well-established principle of the law

which allows a claimant to attach a defendant’s property

when the claimant’s possibility of recovery is in jeopardy.”’).

14

Court’s decision should be no broader than is neces-

sary to resolve the case at bar.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

ROBERT S. MUELLER, ITI

Assistant Attorney General

DAVID L. SHAPIRO

Deputy Solicitor General

RONALD J. MANN

Assistant to the Solicitor General

APRIL 1991

APPENDIX

18 U.S.C. 3681:

(a) Upon the motion of the United States attorney

made at any time after conviction of a defendant for

an offense under section 794 of this title or for an

offense against the United States resulting in physi-

cal harm to an individual, and after notice to any

interested party, the court shall, if the court deter-

mines that the interest of justice or an order of resti-

tution under this title so requires, order such de-

fendant to forfeit all or any part of proceeds re-

ceived or to be received by that defendant, or a trans-

feree of that defendant, from a contract relating to a

depiction of such crime in a movie, book, newspaper,

magazine, radio or television production, or live en-

tertainment of any kind, or an expression of that

defendant’s thoughts, opinions, or emotions regard-

ing such crime.

(b) An order issued under subsection (a) of this

section shall require that the person with whom the

defendant contracts pay to the Attorney General any

proceeds due the defendant under such contract.

(c)(1) Proceeds paid to the Attorney General

under this section shall be retained in escrow in the

Crime Victims Fund in the Treasury by the Attorney

General for five years after the date of an order

under this section, but during that five year period

may—

(A) be levied upon to satisfy—

(i) a money judgment rendered by a

United States district court in favor of

a victim of an offense for which such

(la)

2a

defendant has been convicted, or a legal

representative of such victim; and

(ii) a fine imposed by a court of the

United States; and

(B) if ordered by the court in the inter-

est of justice, be used to—

(i) satisfy a money judgment ren-

dered in any court in favor of a victim

of any offense for which such defend-

ant has been convicted, or a legal repre-

sentative of such victim; and

(ii) pay for legal representation of

the defendant in matters arising from

the offense for which such defendant

has been convicted, but no more than

20 percent of the total proceeds may be

so used.

(2) The court shall direct the disposition of all

such proceeds in the possession of the Attorney Gen-

eral at the end of such five years and may require

that all or any part of such proceeds be released from

escrow and paid into the Crime Victims Fund in the

Treasury.

(d) As used in this section, the term “interested

party” includes the defendant and any transferee of

proceeds due the defendant under the contract, the

person with whom the defendant has contracted, and

any person physically harmed as a result of the of-

fense for which the defendant has been convicted.

W uv S&S. GOVERNMENT PRINTING OFFicE, 1991 26206! 20498