COMPENSATING THE VICTIM FROM THE PROCEEDS OF THE CRIMINAL'S STORY - THE CONSTITUTIONALITY OF THE NEW YORK APPROACH

• NCJ Number: 65263
• Journal: Columbia Journal of Law and Social Problems Volume: 14 Dated: (1978) Pages: 93-122
• Author(s): ANON
• Date Published: 1978
• Length: 30 pages
• Corporate Author: Columbia University
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

CONSTITUTIONAL AND CONTRACTUAL OBLIGATIONS ISSUES RAISED BY THE ENACTMENT OF NEW YORK EXECUTIVE LAW SECTION 632-A ARE DISCUSSED; POSSIBLE AMENDMENTS TO THE LAW ARE HIGHLIGHTED.

Abstract

IN 1978 THE NEW YORK LEGISLATURE ENACTED SECTION 632-A OF THE EXECUTIVE LAW WHICH AUTHORIZES THE CRIME VICTIMS COMPENSATION BOARD TO OVERSEE THE ESTABLISHMENT OF ESCROW ACCOUNTS INTO WHICH A PUBLISHER PAYS MONEYS OWED TO AN ACCUSED CRIMINAL WHO WRITES A BOOK. THE LAW DOES NOT INCREASE THE SUBSTANTIVE RIGHTS OF THE VICTIM BUT ENSURES THE PRESENCE OF A FUND FROM WHICH THE VICTIM'S MONEY JUDGMENTS CAN BE SATISFIED. POSSIBLE PROBLEMS WITH THE STATUTE REGARDING CONSTITUTIONAL RESTRICTION AGAINST STATE IMPAIRMENT OF CONTRACTUAL OBLIGATIONS, AS WELL AS CONSTITUTIONAL RIGHTS ISSUES, SHOULD BE EXAMINED. IT IS CONTENDED HEREIN THAT, ALTHOUGH THE STATUTE IS DESIRABLE, IT VIOLATES THE PROSCRIPTIONS OF ARTICLE I, SECTION 10 AND THE 1ST AND 14TH AMENDMENTS TO THE CONSTITUTION. THE STATUTE ALLOWS ARBITRARY ACTION THAT ABRIDGES THE DEFENDANT'S PROPERTY RIGHTS IN CONTRACTS. EVEN IF SECTION 632-A IS AN INSTANCE IN WHICH SUMMARY PROCEDURE IS JUSTIFIED, THE STATUTE FAILS TO COMPLY WITH THE MINIMAL DUE PROCESS STANDARDS THE SUPREME COURT HAS REQUIRED IN SUCH SITUATIONS. FURTHERMORE, THE STATUTE ACTS AS A DISINCENTIVE TO THE ACCUSED CRIMINALS' WRITING OF THEIR STORY. THE RIGHT OF THE PUBLIC TO RECEIVE INFORMATION OF GENERAL INTEREST IS THEREBY ABRIDGED. THE EQUAL PROTECTION CLAUSE OF THE 14TH AMENDMENT REQUIRES THAT, WHEN A FUNDAMENTAL INTEREST SUCH AS FREEDOM OF SPEECH IS INVOLVED, ANY CLASSIFICATION INCLUDED IN LEGISLATION MUST MEET A MOST COMPELLING GOVERNMENTAL INTEREST. THE STATUTE'S DISTINCTION BETWEEN INJURY TO PERSONS AND PROPERTY FAILS TO DO THIS. AMENDING THE SECTION MAY REMOVE SOME OF THE DIFFICULTIES. REQUIRING THE USE OF THE NEW YORK ATTACHMENT STATUTE OR A SIMILAR PROCEDURE WOULD ALLEVIATE THE DUE PROCESS PROBLEMS. EXPANDING THE DEFINITION OF A VICTIM TO MAKE SECTION 632-A AVAILABLE TO PERSONS SUFFERING PROPERTY OR PERSONAL NONPHYSICAL INJURY WOULD ELIMINATE THE POSSIBLE EQUAL PROTECTION VIOLATION. FIRST AMENDMENT PROBLEMS CANNOT BE SO EASILY REMEDIED. FOOTNOTES ARE INCLUDED IN THE ARTICLE. (LWM)