Mail fraud includes any mail that deceives its victims into purchasing products or services to win a prize. Primary among these schemes are sweepstakes promotions that appear to promise that the recipient is a winner.228 For example, an eighty-four year old California woman spent
222. 720 ILL. COMP. STAT. 5/16-1.3 (2003); see alsoCuda, 639 So. 2d at 24–25.
223. Cuda, 639 So. 2d at 24. 224. Id.
225. See supra note 109. 226. Id. § 825.103(1)(b).
Obtaining or using, endeavoring to obtain or use, or conspiring with another to obtain or use an elderly person’s . . . funds, assets, or property with the intent to temporarily or permanently deprive the elderly person . . . of the use, benefit, or possession of the funds, assets, or property, or to benefit someone other than the elderly person . . . by a person who knows or reasonably should know that the elderly person . . . lacks the capacity to consent.
Id.
227. See, e.g., supra Part II.B.4.
228. Mass Mail, supra note 4, at 60; see also Smythe, supra note 24, at 367. Attorney General Bob Butterworth indicated that in February 1998, his office filed a civil complaint against American Family Publishers, a sweepstakes marketer, for tactics used in the solicitations which made false suggestions “that recipients were one of only two winning ticket holders competing for an $11 million prize.” Butterworth, supra note 4, at 61. The purpose for these type of deceptive solicitations is to place tight deadlines on the recipients in claiming the prize, convincing consumers they must act quickly by purchasing magazine to claim the prize. Those most often victimized are vulnerable
about $1000 per year on magazines and other items just to enter sweepstakes.229 To settle her accounts, her husband was forced to sell off their retirement investments.230
Sweepstakes promotions are increasingly used by both “unscrupulous and legitimate members of the business community.”231 Even legitimate promoters send mailings “specifically designed by marketing experts . . . to compel the recipient to open and examine the contents.”232 The most direct allurement is an assurance that a named person has won a substantial sum of money. For example, a solicitation might read, “Carl Levin, you have won $10 million.”233 Most people throw away such mail because they recognize the deception and do not have the time to read it.234 “Yet many of our citizens do have the time, and these are, disproportionally, our senior and disabled citizens.”235 Creative language lures these citizens to believe that they will definitely win the prize, but some letters also falsely lead them to believe their eligibility is directly related to how many goods and services they purchase.236 Marketing experts who target these recipients know many of them will fall for the deception, and the harm can be devastating.237 Even worse, victims are deliberately and knowingly set up to be victimized repeatedly when their names are sold on mooch lists.238
individuals including the elderly. See also Smythe, supra note 24, at 355. Smythe indicates that fraudulent telemarketers tell their victims that they are guaranteed to win one of several prizes, including vacation packages, large-screen televisions, and cash awards. “Victims are then informed that receipt of the prize is conditional—they must pay money or buy merchandise in order to claim the award.” Id. at 356.
229. Mass Mail, supra note 4,at 61.
230. Id. An elderly Florida gentlemen who suffers from dementia spent $30,000 in eighteen months on a magazines sweepstakes, and his apartment was full of his purchases, but he never received the prize. Id.
231. Mass Mail, supra note 4, at 77 (statement of Stanley F. Pruss, Assistant Attorney Gen. in Charge, Consumer Protection Div., Mich. Dep’t of Attorney Gen.); see also Bratkiewicz, supra note 6, at 590–91.
232. Mass Mail, supra note 4, at 77 (statement of Stanley F. Pruss, Assistant Attorney Gen. in Charge, Consumer Protection Div., Mich. Dep’t of Attorney Gen.). Persons of all ages receive these mailings, and they are almost always unsolicited, unwanted, annoying, and frustrating. Id.
233. Id. The words are usually in large bold print. Id. 234. Id.
235. Id. at 78.
236. Id.; see alsoid. at 63 (remarks of Attorney General Bob Butterworth). Entry applications are purposely made extremely complex. Also, the message “no purchase is necessary to enter the sweepstakes [is] . . . obscured or given little or no prominence, [and] often contradicted by the content of the solicitation piece.” Id.
237. Id. at 78.
238. Id.; see also Newman Flanagan, Message from the Executive Director, PROSECUTOR, July/Aug.1998,at 6, 6. “In some respects ‘fiscal abuse’ can be more devastating than the physical or psychological abuse” when people lose their life savings to slick scam artists or even family members. Id. “They’ve lost everything, including their pride.” Id.
Both the state and federal governments are beginning to address mail fraud. Under the Federal Mail Fraud Act, those who use the postal service to obtain money or property by false representations or promises are subject to a fine, five years imprisonment, or both.239 In addition, sentence enhancement is available if the victim is a vulnerable adult.240 State legislation generally protects against such fraud in consumer protection statutes.241 Some states enhance penalties if perpetrated against senior citizens.242 For instance, Minnesota adds up to $10,000 to a fraud penalty if the victim is age sixty-two or older.243
Mail fraud statutes could provide strong protection. As discussed below, the federal SCAMS Act could be adapted to include mail fraud.244 Current laws could be amended to include restitution. Also, more states could pass effective legislation to protect the elderly from financial abuse through the mail.