Abstract
I
Over the years, the criteria for this mental disorder has changed radically, and has even been shifted from being an “impulse control disorder” to being lumped in with substance abuse and other addictions in the “substance-related and addictive disorders.” It was first modified, seven years after being first recognized, in a revised edition, DSM-III-R. Additional changes appeared in the fourth edition, published in 1994, DSM-IV, and again in 2013 in DSM-V.
The diagnostic criteria for what is now called a “gambling disorder” can be found in section 312.31of DSM-V:
Persistent and recurrent problematic gambling behavior leading to clinically significant impairment or distress, as indicated by the individual exhibiting four (or more) of the following in a 12-month period:
• Needs to gamble with increasing amounts of money in order to achieve the desired excitement.
• Is restless or irritable when attempting to cut down or stop gambling.
• Has made repeated unsuccessful efforts to control, cut back, or stop gambling.
• Is often preoccupied with gambling (e.g., having persistent thoughts of reliving past gambling experiences, handicapping or planning the next venture, thinking of ways to get money with which to gamble).
• Often gambles when feeling distressed (e.g., helpless, guilty, anxious, depressed).
• After losing money gambling, often returns another day to get even (“chasing” one's losses).
• Lies to conceal the extent of involvement with gambling.
• Has jeopardized or lost a significant relationship, job, or educational or career opportunity because of gambling.
• Relies on others to provide money to relieve desperate financial situations caused by gambling.
• The gambling behavior is not better explained by a manic episode. 2
DSM-V breaks this official mental health disorder into subcategories: episodic, persistent, in early remission, in sustained remission;
3
and, by severity:
• Mild: 4–5 criteria met. • Moderate: 6–7 criteria met. • Severe: 8–9 criteria met.
The recognition of pathological gambling as an official “mental disorder” has changed the law's view of both gambling and gamblers. Many courts and legislators have begun to recognize that some individuals may not be able to control their gambling. The change goes deep, to the fundamental way society views all gambling activity.
Three centuries ago, gambling was considered a sin, a topic that could not be mentioned in polite society, except to be condemned. The word “gamble” itself was regarded as slang in the eighteenth century as “a term of reproach,” while “gambler” originally meant “a fraudulent gamester.” 4 The treatment of the gambler in the eyes of the law and by society followed naturally. If gambling was viewed as something unholy, the gambler deserved to be condemned, although sometimes with pity. The excessive gambler was simply consigned to Hell.
In the Nineteenth Century, religious feelings began to die down and gambling came to be viewed not as a sin, but as a vice. This difference is significant. Gambling could be discussed under proper circumstances, much as prostitution can sometimes be discussed in “polite society” today. The gambler was not viewed as fallen, but as weak. The emphasis was on human frailty and tragedies in this world, not in the hereafter. Of course, a man (and in rare cases, a woman) who gambled to excess, having given in to the vice, was viewed as deserving whatever misfortune he received.
I first wrote about “Compulsive Gambling and the Law” as the lead contributor and co-editor of a special issue of the Journal of Gambling Behavior in 1988. 5 Reading cases at the time, I noticed that courts were reaching wildly different conclusions on what appeared to be nearly identical sets of facts and law.
Recently I was asked to be the keynote speaker at the Louisiana Association of Substance Abuse Counselors and Trainers annual statewide conference in Baton Rouge. Updating my research, I discovered that the conflicts are growing between decision makers. The majority still holds to the older view, that excessive gambling is a moral weakness. But a growing number are seeing compulsive gamblers as suffering from a disease.
What, exactly, would be the impact on the law if a person who gambles too much is seen as merely being ill?
One obvious area would be compensation, if the plaintiff's compulsive gambling is seen as being a mental disorder caused by the defendant.
In 1985, a Louisiana court of appeals affirmed an award of partial disability workmen's compensation to an employee who suffered a nervous breakdown after being unexpectedly fired without any explanation. Significantly, his continuing emotional troubles included heavy drinking and compulsive gambling. 6
More dramatically, a Delaware court in 1986 awarded compensation to a plaintiff injured in a head-on collision for both his physical and non-physical injuries. “Perhaps the most alarming conditions which developed following the accident were addiction to drugs and gambling.” The jury awarded only $7,000, reflecting the general public's disbelief that injuries cause antisocial conduct. The judge found the small award was so disproportionate to these injuries that it shocked the court's conscience and was not allowed to stand. 7
The ongoing change in society's view of gambling-to-excess, from sin to vice to disease, is most clearly illustrated in the area of sentencing. In the prevailing traditional view, evidence showing a criminal defendant has a gambling problem actually makes it easier to impose a harsh punishment because it answers the question of motive. On December 31, 1987, the Nevada Supreme Court upheld a sentence of fifty years for a compulsive gambler who passed five bad checks. 8
One of the first rulings taking cognizance of the implications of the DSM's official recognition of pathological gambling as a mental disorder in 1980 came from the Louisiana Supreme Court. In 1981, a Louisiana lawyer received only a two-year suspension, despite his convictions and incarceration for felonies involving deceit and dishonesty. The Louisiana high court recognized the lawyer “suffers from a psychological or emotional disorder consisting of a compulsive or addictive gambling habit or disease.” The court put great weight on the lawyer's undergoing medical treatment, attending Gamblers Anonymous, and “making a sincere effort to rehabilitate himself and to recover from his illness.” 9 The dissenting judge would have given an even lesser penalty. 10
The most heated battles in the law since the recognition of pathological gambling as a mental disorder have arisen in criminal cases where the defendants have pleaded not guilty by reason of insanity. At first, during the early 1980s, criminal defendants often won acquittals in both state and federal trial courts. However, the cases taken up on appeal resulted in reversals and convictions. Changes in the legal definitions of insanity and defeats in courts of final appeal have forced defense lawyers to search for other ways to raise the issue of compulsive gambling in criminal cases. However, the admissibility of non-traditional evidence, such as pathological gamblers’ syndrome, is meeting much resistance in the courts. 11
The inclusion of pathological gambling in the list of official impulse disorders was not intended to lead to an automatic finding of legal insanity. Insanity is a purely legal concept with no counterpart in the medical field. The DSM recognizes this distinction by explicitly stating that the use of these classifications for such purposes as determination of criminal responsibility must be critically examined in the particular context of each separate case. 12
The cautionary statement of DSM-III-R is typical:
Inclusion … [in the manual] … of a diagnostic category such as Pathological Gambling … does not imply that the condition meets legal or other nonmedical criteria for what constitutes mental disease … The clinical and scientific considerations involved in categorization of these conditions as mental disorders may not be wholly relevant to legal judgments, for example, that take into account such issues as individual responsibility, disability determination, and competency.
13
However, this disavowal is almost meaningless. The American Psychiatric Association cannot publish a national standard for diagnosing an illness and then deny it is truly setting a standard.
The major problem for defense lawyers had been the nationwide shift to the M'Naghten Rule, also called the right-wrong or cognitive test. Under this rule, defendants are not criminally responsible if they did not know the nature and quality of the act they were doing, or if they did not know that what they were doing was wrong. 14 Compulsive gambling is not usually raised as a defense in M'Naghten Rule jurisdictions. For example, using embezzlement as a typical crime, although a compulsive gambler may be operating under a delusion that he will be able to win enough to pay back the money “borrowed,” he knows the nature and quality of the act and knows that it is wrong. 15
More importantly, even under the M'Naghten Rule, evidence of a mental illness cannot be introduced into court if it is not relevant. Relevancy requires that there be a direct connection between the disease and the actual criminal acts charged. A compulsion to gamble does not mean the defendant was unable to prevent himself from shipping stolen cars across state lines. 16 If a defendant is charged with theft, for example, the court will only allow testimony of a mental disease that allegedly made the defendant unable to resist the urge to steal. 17 Needing money is not enough, otherwise every addict who needed money to buy drugs could claim they were excused from responsibility for their crimes.
Despite the loss of the insanity defense, compulsive gambling continues to be raised in criminal cases, because it may negate an element of a crime. For example, it might be possible to present expert testimony on pathological gambling for the limited purpose of showing the defendant did not willfully intend to fail to pay his taxes. 18 A federal judge allowed a psychiatric expert to testify as to the “full payment” issue—a pathological gambler's “defective thought process whereby he believes he must take the funds that he possesses (which could be used to make a partial payment of a debt) and gamble the funds to seek to gain money for a full lump sum payment of the debt, allegedly intending all the while to repay the underlying debt with the gain.” 19 The jury rejected this evidence and found the defendant guilty. 20
In one of the more interesting criminal cases, a conviction for check fraud was reversed because track employees who cashed the worthless check could not claim to be defrauded since they knew the defendant was a compulsive gambler and that her checks were no good. 21 And another defendant was able to have his murder conviction overturned by convincing the California Supreme Court he had been denied his right to effective counsel because his trial attorney was a compulsive gambler. 22
Even if a finding of not guilty is rare, it is becoming relatively easy to have a judge order a compulsive gambler, accused of a non-violent property crime, into a pre-conviction diversion program, where all charges will be dropped after a certain time if the defendant stays clean and in therapy. Formal law differs greatly from practical law. The secret is to not ask for a published decision on the impact of compulsive gambling. Judges want to rehabilitate, but they do not want to create a new legal entitlement.
It is usually up to the defense lawyer to raise the issue. There are a few states, like Minnesota, which actually require, by state regulation, the pre-sentencing probation report to include an examination of whether the convicted defendant is a compulsive gambler. 23
Practitioners have learned the “Five Rs” of defending compulsive gamblers: remorse, repentance, restitution, rehabilitation, and recovery. The secret is to get the defendant into treatment before he comes before the court.
Military courts have recognized this distinction. “A defense counsel's most efficacious use of evidence or testimony relating to the accused's status as a pathological gambler lies in the disorder's potential for sentence reduction.” 24 “The Rules of Courts-Martial specifically allow evidence of matters in extenuation to explain the circumstances surrounding the crime, regardless of whether such evidence serves as a legal justification for the criminal conduct.” 25
The fight between the old and new views of compulsive gambling can arise in almost any legal context.
The United States Supreme Court faced the compulsive gambling issue for the first time in a case involving a decision by a labor arbitrator. Letter carrier Edward Hyde was convicted of unlawful delay of the mail. Over 3,500 undelivered pieces of mail were found in his car, many containing checks. He was sentenced to 18 months probation, with the condition that he complete a rehabilitation program for compulsive gamblers. The U.S. Postal Service, however, wanted to discharge him. A labor arbitrator reversed, deciding the only hope for rehabilitation lay in returning Hyde to work. The federal district court reversed the arbitrator, holding it would offend public policy to allow the delivery of the U.S. mails to depend “upon the vicissitudes of rehabilitation of a single letter carrier.” 26 The court of appeals reversed the district court, stating “the Postal Service would have this court impose its own brand of justice.” 27 Chief Justice Rehnquist issued a stay, indicating he believed the Supreme Court would reverse the court of appeals. 28 The Supreme Court first agreed to hear the case, 29 then changed its mind. 30 Thus, five different levels of the legal system looked at this case and each disagreed with the prior decision on the effect of compulsive gambling.
The modern view is struggling to find support because the legal ramifications of holding that compulsive gambling is a disease can be so startling. Criminal law, for example, never punishes a person for being ill. One judge might sentence an embezzler to ten years in prison, while another judge in a similar case would allow the defendant to go free, so long as he makes restitution and attends meetings of Gamblers Anonymous.
Family law cases also dramatically reflect this conflict. A New York trial court awarded the wife of a compulsive gambler 90% of the parties’ assets and ordered the husband to pay child support and maintenance. The appellate court reversed, since he was the one who needed treatment. 31
This result is so shocking that it has been mostly rejected. Today, judges have little sympathy for the gambler who destroys the family's finances or marriage. 32 The Illinois cases, In re Marriage of Morrical 33 and In re Marriage of Hagshenas, 34 and the New York case Wilner v. Wilner, 35 held the defendants were liable for dissipating the marital estate when they admitted they had gambled with some of the couple's money.
The declaration by the mental health community that compulsive gambling is a disease remains an unrealized threat to the legal gaming industry. In theory, a sick gambler could get out of paying his debts to a casino, or the victim of embezzlement could sue the casino. In practice, these legal claims are frequently made, but virtually never succeed.
More in the next issue of Gaming Law Review and Economics.