When inmates create art, should they profit?

The case of a Texas painter on death row treads the fuzzy terrain between 'murderabilia' and prisoners' rights.

A lock of Charles Manson's hair. Dirt from the crawl space where John Wayne Gacy hid his victims. Foot scrapings from the Texas Railroad Killer.

These are the types of items that are prompting states to ban prisoners and third-party brokers from profiting from the sale of crime memorabilia, or "murderabilia."

But what of prized poetry penned by a Florida man on death row? Artwork being sold around the world by a Texas death-row inmate? And a collection of short stories from women in a Connecticut prison, one of whom won a prestigious PEN award for her work?

Is this murderabilia? A recent case in Texas is testing the limits of these new laws and leaving many to wonder whether creativity can be stifled - even when a person's rights have been stripped - and whether money made through art can be confiscated.

The story centers around death-row inmate James Allridge, scheduled for execution Aug. 26 for his part in the murder of a Fort Worth convenience store clerk in 1985. Since that time, he has taught himself to draw and, for many years, has been helping support his legal defense by quietly selling his art over the Internet.

But his status in the eyes of victims' advocates changed when actress and death- row opponent Susan Sarandon, one of his customers, visited him last month. At that point, Mr. Allridge became a celebrity, they say.

"You can paint all you want; you can draw all you want. But you shouldn't be able to profit off it," says Andy Kahan, director of Houston's Victims Assistance Center. "Brian Clendennen was murdered for $300, and now his killer is gaining fame and notoriety and getting visits from Hollywood celebrities - and all because he killed somebody."

Now Mr. Kahan, who pushed the murderabilia law through the legislature in 2001, wants to see it applied to Allridge. It would be the first application of the law anywhere in the United States. State lawyers are currently looking into the case.

From his cell, Allridge has been selling colored- pencil drawings of animals, flowers, and nature scenes - $465 for a large print and $10 for a box of greeting cards. On his website, he says they have been purchased by celebrities such as Ms. Sarandon, Gloria Steinem, and Sting.

"My art allows me to give back something purposeful, productive, constructive and meaningful," he writes. "By giving back a small part of me with each piece of art I create, I am giving back to society."

Allridge supporters say his art is just another example of why he should have his death sentence commuted to life. Last week, his lawyers filed a petition with the state Board of Pardons and Paroles on the grounds that he has been rehabilitated.

"To put his art in the murderabilia category is totally off base. He's never done his art to try to profit off of it or profit off his situation," says David Atwood, a Texas death-penalty activist and friend of Allridge's. "His art is representative of his personal development. And isn't that what we want all prisoners to do: to develop to their greatest possibility, to become artists, writers, intellectuals? They shouldn't be criticized for that. They should be applauded."

While the concept of murderabilia is relatively new, the idea of keeping criminals from profiting off their crimes is not. States began passing "Son of Sam" laws after serial killer David Berkowitz was offered numerous book deals in the late 1970s. New York was the first to pass such a law, which targeted proceeds earned from a prisoner's "thoughts, feelings, opinions, or emotions" about the crime.

But the US Supreme Court struck it down in 1991, saying it violated First Amendment free-speech rights, and states began amending their laws to meet constitutionality standards.

Today four states have passed murderabilia laws and many others are considering them. But as of yet there has been no case to test their constitutionality, and Allridge's may have come too late. While the Supreme Court is not always consistent on the issue of free speech inside prisons, it typically rules against the prisoner.

"The Supreme Court has been very hands-off with respect to free-speech claims from prisoners," says Charles Rhodes, a professor of constitutional law at South Texas College of Law in Houston. "As long as there is a legitimate penological objective, that's all that's required for general prison standards to pass muster under the First Amendment."

But he says the murderabilia laws do raise some constitutional concerns, the most important being who decides when a prisoner is notorious enough to qualify.

"These [murderabilia] laws were designed for people like Charles Manson and the Son of Sam," says Steve Hall, director of StandDown Texas, an anti-death-penalty group. "Clearly James Allridge does not fit that category of notoriety, nor does his artwork. People are not buying it because of the crime he committed."

States without murderabilia laws have tried using laws already in place to confiscate profits from prison art and literature. In Connecticut, for instance, eight women at the York Correctional Institution last year published an anthology of short stories, with the help of their writing coach, author Wally Lamb.

Thinking the book was going to make them a fortune, the state attorney general invoked a little-known and even less-used law that allows Connecticut to recover incarceration costs from inmates.

He finally backed down when he realized the book wouldn't generate much income. But the controversy over inmates being allowed to profit from work done in prison is still simmering in that state.

For many of the victims' families, however, there is no question. When Mr. Clendennen's family found out about Allridge's artwork and visit by Sarandon, they were outraged.

"My 21-year-old son, Brian, was also an artist and a writer who got up and preached in church," the victim's mother, Doris, told the Houston Chronicle recently. "But he never got to fulfill his dreams."