[Congressional Record Volume 144, Number 100 (Thursday, July 23, 1998)]
[Senate]
[Pages S8919-S8920]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DORGAN:
  S. 2345. A bill to amend section 2681 of title 18, United States 
Code, relating to the special forfeiture of collateral profits of a 
crime; to the Committee on the Judiciary.


                     federal son of sam legislation

  Mr. DORGAN. Mr. President, today, I am introducing a bill to correct 
problems with the Federal ``Son of Sam'' law, as those problems were 
perceived by the United States Supreme Court. The New York statute 
analyzed by the Supreme Court, as well as the Federal statute which I 
seek to amend, forfeited the proceeds from any expressive work of a 
criminal, and dedicated those proceeds to the victims of the 
perpetrator's crime. Because of constitutional deficiencies cited by 
the Court, the Federal statute has never been applied, and without 
changes, it is highly unlikely that it ever will be. Without this bill, 
criminals can become wealthy from the fruits of their crimes, while 
victims and their families are exploited.
  The bill I now introduce attempts to correct constitutional 
deficiencies cited by the Supreme Court in striking down New York's Son 
of Sam law. In its decision striking down New York's law, the Court 
found the statute to be both over inclusive and under inclusive: Over 
inclusive because the statute included all expressive works, no matter 
how tangentially related to the crime; under inclusive because the 
statute only included expressive works, not other forms of property.

[[Page S8920]]

  To correct the deficiencies perceived by the Court, this bill changes 
significantly the concepts of the Federal statute. Because the Court 
criticized the statute for singling out speech, this bill is all 
encompassing: It includes various types of property related to the 
crime from which a criminal might profit. Because the Court criticized 
the statute for being over inclusive, including the proceeds from all 
works, no matter how remotely connected to the crime, this bill limits 
the property to be forfeited to the enhanced value of property 
attributable to the offense. Because the Court found fault with the 
statute for not requiring a conviction, this bill requires a 
conviction.
  The bill also attempts to take advantage of the long legal history of 
forfeiture. Pirate ships and their contents were once forfeited to the 
government. More recent case law addresses the concept of forfeiting 
any property used in the commission of drug related crimes, or proceeds 
from those crimes. Hopefully, courts interpreting this statute will 
look to this legal history and find it binding or persuasive.
  The bill utilizes the Commerce Clause authority of Congress to 
forfeit property associated with State crimes. This means that if funds 
are transferred through banking channels, if UPS or FedEx are used, if 
the airwaves are utilized, or if the telephone is used to transfer the 
property, to transfer funds, or to make a profit, the property can be 
forfeited. In State cases, this bill allows the State attorney general 
to proceed first. We do not seek to preempt State law, only to see that 
there is a law in place which will ensure that criminals do not profit 
at the expense of their victims and the families of victims.
  One last improvement which this bill makes over the former statutes: 
The old statute included only crimes which resulted in physical harm to 
another; this bill includes other crimes. Examples of crimes probably 
not included under the old statute, but included here are terrorizing, 
kidnaping, bank robbery, and embezzlement.
  Mr. President, our Federal statute, enacted to ensure that criminals 
not profit at the expense of their victims and victim's families, is 
not used today because it is perceived to be unconstitutional. I 
believe victims of crime deserve quick action on this bill, drafted to 
ensure that they are not the source of profits to those who committed 
crimes against them. I ask for your support.
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