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Is compulsive gambling a disease?
The prevailing view in the law is that gambling
is a vice. Compulsive gamblers who destroy their lives may be pitied,
but they are punished for their moral weakness, not treated.
In this view, telling judges or juries that defendants
committed crimes to feed their gambling habits is worse than useless.
Not only is it not a legal excuse, but now prosecutors can point
to a motive.
In 1980, the well-settled law making problem gamblers
liable for their crimes was rocked by a declaration from the medical
world. The American Psychiatric Association ("APA") declared
"pathological gambling" to be an official "mental
disorder." The disorder was published with a list of recognizable
symptoms in its Diagnostic and Statistical Manual ("DSM").
The APA is quick to point out that the DSM is designed
for diagnosis and treatment only and is not intended to have any
legal importance. But defense lawyers are under a duty to raise
every defense, including the fact that the leading medical association
in the field says that a person who has a gambling problem is not
morally weak, but instead suffers from a disease.
The law does not punish people for being ill.
What should the law do with a compulsive gambler
who admits stealing to get the money to gamble?
In practice, the overwhelming majority of judges
continue to treat the compulsive gamblers accused of committing
crimes as if they have no problems, other than being crooks. This
usually means sentencing them to jail.
This might give some feelings of "just desserts,"
but actually helps no one. Imprisoned compulsive gamblers cannot
earn enough money to repay their victims; they will not receive
treatment; but they will have lots of opportunities to gamble.
Mark G. Farrell, Justice of New York State's Amherst
Town Court, has come up with a different approach. In 2001, he started
the nation's, and probably the world's, first Gambling Court.
Specialty courts for drug addicts and perpetrators
of domestic violence have been around for a few years. Social workers
screen criminal defendants to see if there is an underlying problem
which can be treated.
Judge Farrell is the first to apply this "therapeutic
justice" model to gamblers. The program may sound touchy-feely,
but that is not how it is run. Defendants have to first plead guilty
and waive all constitutional rights, including the right to plea-bargain.
If they make it through the program, all charges are dropped. But,
if they miss a weekly therapy session, they go to jail for a week.
If they miss a court appearance or violate the terms of their contracts
with the Gambling Court, they are returned to regular criminal court
and go to prison for a felony.
Since many compulsive gamblers have lost all their
money, the Gambling Court is fortunate to have the help of the local
Jewish Family Service's treatment program, which has never turned
anyone away.
In September 2002, Judge Farrell and I spoke at
a seminar at Whittier Law School. The obvious question is, does
Gambling Court work?
The program is still small and relatively new. But
it is the only program dealing with convicted criminals that I know
of which can say that not a single one of its graduates has ever
been convicted as a repeat offender.
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All
casino games, except blackjack, have a built-in house edge, a mathematically
calculable advantage to the gaming establishment. The CEO's hate
that blackjack can be legally beaten by a small percentage of skillful
players who have studied and practiced card counting, but are the
casinos going too far in their attempts to stop it? In order to
protect their civil rights, casino players today must have a legal
arsenal at their disposal. 
