Books, Crime, Free Speech

Crime That Might Pay

How do you balance the First Amendment right of free speech with the societal imperative to punish people for crime?

By  
on

Should convicted prisoners be allowed to make money by writing about their crime? What if what they write is considered fictionalized literature?

This question, once covered by “Son of Sam” laws in many states, came up again last week with the release of The Graybar Hotel, a collection of short stories by convicted killer Curtis Dawkins.

Dawkins was found guilty in 2005 of the murder of Thomas Bowman in Kalamazoo, Michigan. At the time of the murder, Dawkins was married with two children and had already received a Masters in Fine Arts from Western Michigan University. Prior to going to grad school, he’d battled drug addiction and fell back into heavy usage in the fall of 2004. In a bizarre set of circumstances, he decided to go out Halloween night dressed as a treat-or-treating 1920s-style gangster but armed with a real gun. Looking for parties and people wandering the street, he approached Thomas Bowman on his front porch and asked him for money. When Bowman refused, Dawkins shot him in the chest. Dawkins was tried, convicted, and sentenced to life.

While serving his sentence, he began writing again, both to express himself and to beat the tedium of prison. Ultimately his work caught the attention of Scribner, one of the country’s top publishing houses. They agreed to publish and promote The Graybar Hotel, but not without controversy.

The family of the victim felt Dawkins should be rotting in jail. According to Bowman’s brother, Kenneth, “He should be doing nothing in that prison but going through hell for the rest of his life.” He’d hoped Dawkins would have been sentenced to death. But the book has been well-received by others.   Although the writing is terse, told from the perspective of an unnamed prisoner, it’s a slap-in-the-face depiction of what prison life is like — both the day-to-day routine and the characters you meet there.

According to writer Atticus Lish, author of Preparation for the Next Life, “This book will scare you straight — or should. But within their cages, Dawkins’s prisoners dream — of criminal schemes, drugs, women — and an American world outside the walls. Their avid fantasies burn with a furious light against the bleak institutional background, exploding with ingenuity, pathos and rebellion.”

Prison writing programs like PEN America exist, but they’re usually geared toward teaching prisoners about the value of writing and its essential elements. Dawkins, on the other hand, entered prison with a leg up. He had already earned his Masters in Fine Arts. So, with a lot of time on his hands and a lot of feelings to sort through, he started writing.

Sponsored

Dawkins isn’t the first person to write about his personal prison experience. Orange is the New Black, originally a book by Piper Kerman about her year in federal prison, just finished its fifth season on television, and since time immemorial the acts of criminals have been the stuff of legend, movies and verse — Wyatt Earp, Billy the Kid, and Jack the Ripper, to name a few. But how do you balance the First Amendment right of free speech with the societal imperative to punish people for the crimes they committed? Crime should not pay, right?

Following the series of murders committed by David Berkowitz in the mid-1970’s, Berkowitz tried to capitalize on his fame by selling his story to media outlets. As a result many states enacted “Son of Sam” laws (“Sam” was Berkowitz’s neighbor whose dog, he claimed, was a demon responsible for the killings) that outlawed the receipt of any profits by convicted criminals based on the writing or selling of their stories. All profits, the law ruled, would be placed in escrow accounts for victims in the events that civil law suits were filed and won.

In 1985, however, Simon and Schuster challenged this law on First Amendment grounds after publishing Nicholas Pileggi’s book Wiseguy about ex-mobster Henry Hill. (Martin Scorsese later made the book into the movie “Goodfellows.”) They won.

In a 1991 decision written Justice by Sandra Day O’Connor, the Supreme Court struck down the New York law, holding that New York had “singled out speech on a particular subject for a financial burden it placed on no other speech and no other income.” This discrimination could only be justified if the state could show “that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.” Simon & Schuster v. Crime Victims Board, 502 U.S. 105 (1991). So back to the drawing board.

Many lawsuits followed, with cases like that of Amy Fisher, charged in the 1992 shooting of Mary Jo Buttafuoco in Long Island, an alleged crime of passion based on Fisher’s infatuation with Mary Jo’s husband, Joey Buttafuoco. The Fisher family was offered $80,000 for the rights to publicize the case. They took the money and used it to pay Fisher’s bail.

Sponsored

In 2001, New York revised its law, actually expanding the Son of Sam rules but with a twist. Although inmates can bargain for profits based on their crime stories, now if any defendant serving a sentence for certain enumerated crimes has more than $10,000 in his prison account, the law requires that victims of the person’s crime be notified. The victim is thus put on alert that, should they bring a civil suit, there’s money there to claim. The nuance is that it doesn’t matter if the money comes from profits from a book or movie or from winning the lottery. Whenever there’s $10K or more in the prisoner’s account, the victim gets notification. (As recently as 2012, the New York Senate attempted to get a bill through the legislature that required that prisoner contracts relating to book or movie deals first be vetted by the Victims Crime Board.)

Some 40 states and the federal government have similar or more severe restrictions (as do other countries). Yet is it fair? While no one likes the thought of criminals profiting from their crimes after the fact, their stories often make compelling reading. (Think In Cold Blood by Truman Capote, or even In the Belly of the Beast by Jack Abbott, who, a day before receiving a glowing review for the book by the New York Times, killed a waiter.) Their books also help inform us about the working of the criminal mind, how prisons function, and other things that we’d otherwise not be privy to.

I suppose another reason for these laws is a fear that people will commit crimes just to make money from the sale of their story. But someone crazy enough to do that — to risk life in prison for the chance at being famous — won’t be dissuaded even if he knows he won’t get a cent out of the deal.

Plus even people who commit crimes have families with young children like Dawkins did. Why should they be penalized because of the crime their relative committed?

Ed. note: All links to books are Amazon affiliate links.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

Topics

, , , , , , , , , , , ,