Brigham Young University Law Review: Diminished capacity departures for compulsive gambling: Punishi

I. INTRODUCTION

A grandmother from New York City was sentenced yesterday to 31 months in federal prison and ordered to pay back the nearly $4.9 million she embezzled from her former employer to feed her gambling habit in Atlantic City.

From the judge, she asked for mercy.

To some extent, mercy had already been shown.

Checoura could have received substantially more prison time, but [the judge] agreed last month to apply a sparingly used portion of federal law to reduce her sentence. Her compulsive-gambling disorder, he ruled, "significantly impaired her ability to control her wrongful behavior."1

the law from those unwilling to do so."4 This Comment will focus on that concern in the context of compulsive gambling5 as a factor for downward departure under the Sentencing Guidelines. Does a gambling addiction significantly reduce a person's capacity to obey the law? Where does one draw the line between an inability to obey the law and failure to obey the law, between an irresistible impulse and an impulse not resisted?

Section II will give a brief account of the Guidelines and the rationale for the departure guideline. Section III will discuss the correlation between compulsive gambling and crime. The evidence shows that compulsive gamblers commit crimes (particularly theft crimes) at higher rates than the general population. Thus, as greater access to gambling begets greater numbers of compulsive gamblers, how sentencing courts will treat compulsive gambling becomes more important. Section IV will discuss the different ways in which the diminished capacity guideline has been interpreted regarding volitional impairments and will suggest that a compromise approach fashioned by the Seventh Circuit should be followed. Section V will discuss the difficulties in measuring volitional impairments in general and compulsive gambling in particular and propose that the evidence shows that compulsive gambling does not in fact cause a diminished ability to obey the law. Finally, section VI will discuss the incompatibility of downward departures based on compulsive gambling with the Guidelines' treatment of other factors, particularly drug and alcohol use and addiction.

gambling are inconsistent with the Guidelines' policy goals and create a discrepancy with several Guidelines factors. Hopefully this Comment will call attention to serious problems, both in public policy toward gambling and in the difficult issues raised in punishing compulsive gamblers. Ultimately the goal is to neither punish the pathological nor pardon the common criminal.

II. THE SENTENCING GUIDELINES: UNIFORMITY WITH FLEXIBILITY

Judges were not left without guidance in deciding when a departure might be appropriate. The Guidelines identify four categories of factors that might affect a departure decision.10 First, there are those few factors of which the Commission has forbidden consideration, including race, sex, national origin, creed, religion, socioeconomic status,11 lack of guidance as a.youth,12 drug or alcohol dependence,13 and economic hardship.14

Second, certain factors are discouraged as "not ordinarily relevant."15 Discouraged factors include a defendant's family ties and responsibilities,19 education and vocational skills,17 and military, civic, charitable, or public service record.18 Courts are also discouraged from departing downward based upon the defendant's "mental and emotional conditions."19 Discouraged factors should only be considered in "exceptional cases."20

Finally, because the Sentencing Commission lacked perfect prospicience there are countless unmentioned factors which the sentencing court may take into account but only while considering the "structure and theory of both relevant individual guidelines and the Guidelines taken as a whole."25 The Commission expected that departures based on grounds not mentioned in the Guidelines would be "highly infrequent."26

III. COMPULSIVE GAMBLING AND CRIME: CREATING A NEW CLASS OF CRIMINAL

A. The Growing Prevalence of Compulsive Gambling

Access to gambling is growing at an alarming rate. Between 1975 and 1998, gambling industry gross revenues increased nearly 1600%, reaching $50 billion.38 This $50 billion figure accounts only for legal gambling revenues.39 All but two states40 now have some forms of legalized gambling.

B. Compulsive Gambling and Crime

As gambling spreads and the number of compulsive gamblers grows, the number of crimes committed by compulsive gamblers will logically grow. In fact, research demonstrates that there is a clear connection between compulsive gambling and crime.47

Professor Henry R Lesieur, a leading expert on the problems of pathological gambling, has done studies revealing that pathological gamblers commit crimes, including embezzlement and insurance fraud, far more often than non-gamblers.50 His 1995 survey of Gamblers Anonymous members in Illinois found that 46% admitted to some illegal act, including writing bad checks, stealing, or embezzling from their employer.51 A similar study in Wisconsin revealed that 49% had stolen to finance gambling and 39% had been arrested.52 In fact, the "American Insurance Institute has called gambling the main cause of white-collar crime."53

lead to gambling may also lead to crime, but whatever factors lead them there, compulsive gamblers commit crimes far more often than do others.57

However, while compulsive gamblers commit crimes more frequently than the population as a whole, this fact does not answer the question whether the gambling addiction in fact decreases their ability to obey the law or merely gives them a more powerful motive to steal. That is a question that psychologists have been unable to answer clearly, but much evidence suggests that compulsive gamblers do not lose their ability to obey the law.58

With this backdrop, the rest of this Comment will analyze three issues: (1) whether a proper interpretation of the Guidelines permits compulsive gambling to be a factor for departure when the crime committed is not a gambling-related offense, and if so, what the link must be between the gambling addiction and the crime; (2) whether the difficulty in diagnosing and measuring compulsive gambling mitigates against its use as a factor for downward departure; and (3) whether downward departures based on compulsive gambling are consistent with the Guidelines' treatment of other factors.

IV. THE DIMINISHED CAPACITY GUIDELINE

there is a need for incarceration to protect the public.61 The purpose of this guideline is to make punishment comport with culpability-- mitigating punishment for defendants who, while not legally insane, deserve less punishment because of some condition that society views as making the defendant less culpable.

will discuss the interpretations that have been given to the diminished capacity guideline, including some of the concerns with each interpretation. Section B will briefly argue that the compromise interpretation is most in conformity with the purpose of the volitional impairment guideline.

A. Interpreting the Diminished Capacity Guideline

establish that the compulsive gambling significantly impaired the defendant's ability to act within the law. There is no clear majority approach.

1. Interpreting the guideline to require a direct link

The most rigid reading of the diminished capacity guideline would disallow a court from departing downward based on a gambling addiction when the underlying crime was not a gambling offense. This approach seems to have been the controlling construction in United States v. Carucci,68 where the defendant, a floor broker at the New York Stock Exchange, had engaged in illegal trading to support his compulsive gambling disorder.69 The court rejected his request for downward departure stating that if his crime were unlawful gambling he would have a colorable argument, but "a compulsive gambler is not, ct fortiori, a compulsive illegal trader."70

This interpretation is arguably required by the Guidelines' definition of significantly reduced mental capacity. The definition reads

understand the wrongfulness of the behavior comprising the offense or to exercise the power of reason [(cognitive)]; or (B) control behavior that the defendant knows is wrongful [(volitional)].71

Cognitive impairment departures are explicitly limited to cases in which the defendant's impairment prevents him from understanding the wrongfulness of the behavior "comprising the offense."72 The volitional impairment clause uses the same words, "wrongful" and "behavior."73 There is no indication that the Sentencing Commission intended wrongful behavior to be limited to the behavior constituting the offense for cognitive impairments but did not intend the same for volitional impairments. After all, the definition comprises a single sentence. It is an axiom of judicial interpretation that the same or similar language used in close proximity is construed to mean the same thing.74

2. Behavior that motivates the crime

Continued from page 1.

motivated the crime.80 Nevertheless, Sadolsky has been followed by other courts.81

This is not the first time these issues have been raised. Numerous defendants attempted to use compulsive gambling as an insanity defense in cases where the underlying offense was not gambling related but was motivated by a gambling disorder. The volitional insanity cases unanimously rejected testimony of compulsive gambling under the volitional prong of the insanity defense where the underlying crime was not a gambling offense. These cases generally state, for example, that "there does not exist the requisite nexus between compulsive gambling and non-gambling offenses generally... for a compulsive gambling disorder to serve as the basis of an insanity defense to such offenses."85

defendant was unable to restrain himself from non-gambling offenses."87 Thus, courts should be wary of requests for downward departure when the offense behavior is not directly related to the pathological problem.

3. The Roach approach

An intermediate approach was fashioned in United States v. Roach88 when the court agreed with Sadolsky that the diminished capacity guideline does not distinguish between direct and indirect causes but also noted that "understanding the defendant's motive does not necessarily reveal anything about the defendant's mental capacity at the time of the offense."89 This approach is a much more fact-specific inquiry, as the analysis in Roach demonstrates.

At the sentencing hearing, several psychiatrists testified as to Roach's compulsive shopping, but none clearly established her inability to control her fraudulent "conduct at the time of her offense."94 The first psychiatrist testified that compulsive shoppers often "commit illegal acts ... to finance their illness."95 The Seventh Circuit, in overturning the departure, rejected the testimony, noting that "missing from [the psychiatrist's] statement is any conclusion that this aspect of the disorder even applies to Roach or, if it did, any assessment of the role it played at the time of her offense."96

The second psychiatrist testified that during her criminal activity Roach was "functioning in a dissociated state in which information about the legal, practical and moral consequences of her actions was not effectively available to her."97 The appellate court also rejected this testimony because of "Roach's own statements that she began the fraud after inadvertently discovering that she could"98 and not because of an overwhelming compulsion. Because of the "episodic nature of her impairment, and the fact that Roach had `self-- medicated' her depression and compulsively shopped for more than ten years without any criminal activity,"99 the court found a lack of evidence supporting a diminished capacity to control fraudulent behavior.100

too great to make"103 where the defendant had clearly demonstrated the capacity for self-control.

Roach had suffered from compulsive shopping most of her adult life. She did not become a thief until the opportunity serendipitously presented itself and then she did so only to hide the activity from her husband-not because she could not help herself.104 Thus, while Roach almost certainly would not have stolen the money "but-for" her shopping compulsion, such a motive alone was not enough to overcome the fact that she had managed to avoid such criminal activity for years before turning to crime. The court focused on the critical question of the diminished capacity guideline, whether Roach's ability to obey the law was significantly diminished because of her volitional impairment.

B. Following the Roach Approach

The approach taken by the Seventh Circuit in Roach is the most consistent with the Guidelines. First, it focuses on the primary question of diminished capacity-whether the defendant in fact had a significantly impaired ability to resist his unlawful behavior. Second, it does not rely on the type of crime involved, as would the strict approach discussed above, but it does exercise caution towards a request for downward departure based on behavior collateral to the compulsion.

clarify the critical question of culpability, whether the impulse was irresistible or just not resisted. 106

Roach also raises several questions that are appropriate in the compulsive gambling context. For example, the court may want to know whether the defendant had expended all of his own resources and had only turned to theft as a last resort and the only means of satisfying the compulsion to gamble. The court would also want to know the circumstances that led to the theft. Was it indeed the desperate act of a compulsive gambler or simply an opportunity that unexpectedly presented itself? Had the defendant demonstrated the capacity for self-control? Was the motive in committing the theft in fact to satisfy a compulsive need to gamble, or was it to hide the gambling from a spouse, or even to pay off a gambling debt? The court may also want to know whether the defendant had ever stolen before he began to gamble, suggesting he may simply be a thief who happens to have a gambling problem. Finally, the court would want to know how long the defendant gambled before committing the theft. The fact that the gambling had continued for some time without the defendant turning to crime may suggest that the defendant did in fact have the capacity to control his criminal behavior.107 Most importantly, the court must determine whether compulsive gambling causes diminished capacity. As the next section makes clear, that is not an easy question.

V. COMPULSIVE GAMBLING AND DIMINISHED CAPACITY

the defendant suffers from a diminished capacity."108 A gambling addiction gives a defendant a powerful motive for the crime, but there is little evidence it creates a lack of willpower greater than that exhibited by most criminals. Section A below makes a comparison with the volitional insanity defense and notes that compulsive gambling was generally rejected as a volitional impairment for insanity purposes because of a lack of evidence that it weakened the will of the individual. Section B will discuss some of the psychiatric evidence associated with compulsive gambling.

A. Compulsive Gambling Under the Volitional Insanity Defense

Perhaps the greatest difficulty with volitional impairments is there is no established means of measuring them. The Fifth Circuit, in rejecting volitional insanity, noted that "a majority of psychiatrists now believe that they do not possess sufficient accurate scientific bases for measuring a person's capacity for self-control or for calibrating the impairment of that capacity."114 The American Psychiatric Association agreed: "The line between an irresistible impulse and an impulse not resisted is probably no sharper than between twilight and dusk."115

Criminals as a class have generally exhibited a lack of will power. This was noted in United States v. Jones,116 where the court rejected a motion for downward departure in an embezzlement case involving a bank teller who was a compulsive gambler and needed the money to support her habit.117 The court found little difference between her and other criminals. "Need, real or perceived, is at the root of many types of crimes, especially embezzlements."118 When presented with the opportunity to steal

there will almost always be a need, "compulsive" or "pathological," to steal so long as the teller has an attitude that tolerates theft or other criminal or antisocial behavior. If a defendant could qualify for a downward departure by showing that a compulsive disorder provided his motive, then virtually all embezzlements could be excused to some degree, as caused by a need for money to gamble, carry on an affair, or to live a more lavish lifestyle.119

While the insanity cases were in the context of determining ultimate guilt rather than degree of punishment, the question is the same-whether compulsive gambling in some way overpowers the will of the individual.125 A gambling addiction may give a defendant a powerful motive for a crime but there is little evidence that it causes a loss of control beyond that exhibited by most people in prison. The Supreme Court noted,

Prisons, by definition, are places of involuntary confinement of persons who have a demonstrated proclivity for anti-social criminal, and often violent, conduct. Inmates have necessarily shown a lapse in ability to control and conform their behavior to the legitimate standards of society by the normal impulses of self-restraint; they have shown an inability to regulate their conduct in a way that reflects either a respect for law or an appreciation of the rights of others. 126

B. Does Compulsive Gambling Cause Diminished Capacity?

Under the DSM-IV criteria, pathological gambling is diagnosed in a person who exhibits any five or more of the following factors:

(1) is preoccupied with gambling... [;]

(2) needs to gamble with increasing amounts of money in order to achieve the desired excitement[;]

(3) has repeated unsuccessful efforts to control, cut back, or stop gambling[;]

(4) is restless or irritable when attempting to cut down or stop gambling[;]

(5) gambles as a way of escaping from problems or of relieving a dysphoric mood ... [;]

(6) after losing money gambling, often returns another day to get even...[;]

(7) lies to family members, therapist, or others to conceal the extent of involvement with gambling[;]

(8) has committed illegal acts such as forgery, fraud, theft, or embezzlement to finance gambling[;]

(9) has jeopardized or lost a significant relationship, job, or educational or career opportunity because of gambling[; or]

Only number three indicates an impaired ability to control behavior that one knows is wrongful, and even it speaks only of "unsuccessful efforts," not inability or even impaired ability. In fact, even though classified as an impulse control disorder, there is little evidence that loss of control is a distinctive feature of pathological gambling.129 Many authors believe that "pathological gamblers do not really experience irresistible impulses and that they retain control over their behaviour."130 Some studies suggest that personality and social attachment are more the cause of crime among gamblers than a gambling addiction.131 This makes compulsive gamblers who steal little different from other criminals who also generally exhibit a lack of willpower and not a lack of control.

In sum, there are inherent dangers of misdiagnosis with volitional impairments, and there is serious disagreement as to whether compulsive gambling actually results in a loss of self-control. Because of this, courts should be wary of claims that compulsive gambling seriously impaired the gambler defendant's ability to obey the law. Compulsive gamblers are worthy of sympathy, especially in light of the fact that the state often compounds their problem by promoting gambling. However, unless they can demonstrate more than a failure of will, they should not be granted a downward departure. Certain punishment may provide a counterbalancing effect to the otherwise powerful pull of pathological behavior.

VI. INCOMPATIBILITY WITH OTHER GUIDELINE FACTORS

the Guidelines. Several of the other guidelines bear on departures based on compulsive gambling. Downward departures for diminished capacity are the exceptions to the rule that "[m]ental and emotional conditions are not ordinarily relevant"132 in determining sentencing departures. Allowing downward departures based on gambling addiction would also create severe conflict with the Guidelines' treatment of drug and alcohol addiction. Finally, several of the gambling addicts who have received downward departures stole to pay off gambling debts, a seeming conflict with the Guidelines' prohibition of departures based on economic need.133

A. Similarity to Drug and Alcohol Addiction

Pathological gambling is an inappropriate factor for consideration because of its similarity to drug and alcohol addiction-forbidden factors under the Guidelines.134 One commentator has noted that the Guidelines' requirement "that the defendant's `reduced mental capacity' not be caused by the `voluntary use of drugs or other intoxicants' [suggests] . . . that the drafters specifically sought to limit application of the [diminished capacity] provision to those who could not be deemed 'responsible' for their mental state."135 If this is true then it applies equally to gambling addiction.

what gamblers often describe as the sensation they experience while gambling is similar to the sensation substance abusers describe when using drugs or alcohol. Gambling, similar to drug and alcohol abuse, are [sic] all characterized by increases in tolerance, cravings and a consistent need to continue to take the drug or indulge in the behavior.138

At least one circuit court, while refusing to review the district court's discretionary decision not to depart downward, agreed with the district court that the "general purpose of deterrence would be ill served by discounting appellant's sentence" on the basis of a gambling addiction because "such a dependence would be akin to drug or alcohol addiction."139

To distinguish between drug and alcohol addiction and gambling addiction does not serve a primary goal of the Sentencing Guidelines-uniformity.140 Drug and alcohol dependence are forbidden factors at least partly because "[s]ubstance abuse is highly correlated to an increased propensity to commit crime."141 Further, drug and alcohol use cannot be used to argue diminished capacity because it is "voluntary."142 Both reasons apply equally, if not more forcefully, to gambling addiction. In United States v. Katzenstein,143 the court refused to grant a downward departure based on a gambling addiction and rejected the defendant's contention that gambling addiction should be distinguished from drug and alcohol addiction. The court stated:

Defendant[ ]... has not convinced the court that compulsive gambling disorder can be distinguished in any [principled] way from abuse of drugs or alcohol.144

The decision to gamble is as voluntary as the decision to use alcohol or drugs and both lead to an increased propensity to commit crime,145 As such, the reasons the Sentencing Commission has given for forbidding diminished capacity departures based on the voluntary use of intoxicants and for forbidding all departures based on drug and alcohol addiction apply just as forcefully to compulsive gambling. Unlike drug and alcohol use, there is no mental impairment associated with gambling addiction and, as discussed above, it is not clear that gambling addiction causes a loss of selfcontrol with respect to the resultant crime.146 Stealing to support a gambling habit is hardly distinguishable from stealing to support a drug or alcohol habit. To reward the gambling addict, who may in fact suffer from neither volitional nor cognitive impairment, while ignoring the chemical addict who often suffers from both, creates its own unwarranted disparity by making gambling addiction an encouraged factor for departure while leaving drug and alcohol addiction as forbidden factors.

B. Contradiction with Other Guidelines Factors

gamblers steal money not to gamble but to pay off gambling debts. The motive in such cases is economic need, not a compulsive need. For example, in United States v. Rosen,149 the trial court rejected a request for downward departure where the defendant committed theft in order to pay off a home equity loan.150 The loan was taken out to pay off gambling debts but the court noted that the Sentencing Commission prohibited departures based on personal financial difficulties.151 A need for money is hardly a novel motive, even if a more powerful one because of the addiction.

In sum, one of the primary goals of the Guidelines was to promote uniformity and fairness.152 Downward departures based on gambling addictions undermine this goal. To make gambling addiction an encouraged factor for departure creates an unprincipled distinction between it and the Guidelines' treatment of drug and alcohol use, economic need, and mental and emotional conditions.

VII. CONCLUSION

between mental capacity and commission of the offense envisioned" by the diminished capacity guideline.153