Pace Law’s Distinguished Fellow in Criminal Justice Mimi Rocah recently appeared on the “Law & Crime” network to discuss the government’s use of a cooperating witness with host Caroline Polisi. Ms. Rocah explained the process of using a cooperating witness in a federal prosecution. Although a cooperator must first plead guilty to the highest possible crime (and possibly other unrelated crimes), the incentive to cooperate in a federal investigation is significant. If the government finds that the cooperator has information against more culpable parties and they testify truthfully, the government will ask the judge to sentence the cooperator below the mandatory minimum under the sentencing guidelines. See the interview here.
See Rebecca R. Ruiz, Attorney General Orders Tougher Sentences, Rolling Back Obama Policy, New York Times (May 12, 2017).
WRITTEN BY: John A. Vitagliano (’17), J.D. Elisabeth Haub School of Law at Pace University & Prof. John Meringolo, Esq.
While the defense of gambling addiction has been effectively used in criminal courts as an argument for reducing the severity of punishment, it has been unsuccessful as an insanity defense (aka mental disorder defense) in criminal trials. Recent empirical studies have shown the serious effects of gambling addiction, its similarities to drug addiction and changes in medical analysis when diagnosing a patient with this mental disorder. Advances in science and medicine may now make it possible to better understand and test for the impact of a gambling addiction on a person’s behavior, and may make it easier to establish a defense based on a gambling disorder.
Changes in the DSM
In 1994, the 4th Edition of the Diagnostic Statistical Manual (DSM) for Mental Disorders (DSM-IV) classified “Pathological Gambling” as an “Impulse Control Disorder Not Elsewhere Classified.” But in 2013, the 5th Edition of the DSM (DSM-V) renamed Pathological Gambling as “Gambling Disorder” and included it in the category of “Substance-Related and Addictive Disorders.” Recent medical developments have indicated that gambling disorder and drug or alcohol addiction have several common elements, both internal and external consequences as a result of the effects of this mental impairment. As NCRG stated,
According to Dr. Charles O’Brien, chair of the Substance-Related Disorders Work Group for DSM-5, brain imaging studies and neurochemical tests have made a ‘strong case that [gambling] activates the reward system in much the same way that a drug does.’
Although gambling disorder does not involve the physical ingestion of substances, it has been included as the only addictive disorder in the DSM-V that is a diagnosable condition. For more information, visit psychiatry.org.
To diagnose a gambling disorder, the DSM-V presents nine factors that may establish that a patient is significantly impaired as a result of his persistent gambling behavior (DSM-V) and whether this behavior severely impacts the individual’s day-to-day activities. Recognizing the commonalities with substance-related disorders, society may better understand the challenges of those living with gambling disorder face, leading to a greater chance that health insurance providers will cover medical services for treatment these patients need. See, Sarah A. Hinchliffe, Defining The “Defined” – Problem Gambling, Pathological Gambling, and Gambling Disorder: Impact on Policy and Legislation, 20 Barry L. Rev. 221 (2015).
Gambling Disorder and Sentencing
In light of the new developments, we must re-examine the existence of a gambling disorder and how it has been considered by courts during sentencing. Some courts have granted downward departures when an offender’s gambling addiction was a motivating factor for the crime committed. See, United States v. Sadolsky, 234 F.3d 938, (6th Cir. 2000) (defendant’s gambling problem qualified as significantly reduced mental capacity (SRMC) when committing computer fraud) and United States v. Checoura, 176 F. Supp. 2d 310, 315 (D. N.J. 2001) (it was not necessary to show connection between defendant’s gambling addiction and interstate transport of stolen property to grant downward departure). On the other hand, other courts require more of a causal connection between defendant’s mental condition and the criminal conduct committed to consider a downward departure. See, United States v. Ming, No. 00 CR 128-5, 2001 WL 1631874, at *7 (N.D.Ill.Dec.18, 2001) (downward departure could be warranted where inability to control behavior provides motive but insufficient connection where SRMC due to gambling was cause of defendant’s debt and motive to skim credit card numbers).
Recently, a federal judge granted a downward departure and accepted a gambling addict defense when he sentenced Andrew Caspersen. Mr. Caspersen pled guilty to wire fraud and securities fraud “for running a Ponzi-like scheme that bilked his friends and family out of $38.5 million”. At the sentencing, prosecutors recommended that Caspersen spend 15 ⅔ years in prison. After permitting an addiction expert to testify about Caspersen’s diagnosis of a severe case of gambling addiction and alcoholism, Judge Jed Rakoff “agree[d] that Caspersen’s gambling addiction ‘diminished’ his ability to make rational decisions.” Judge Rakoff granted a downward departure and sentenced Caspersen to four years in prison. Judge Rakoff recognized that Caspersen’s gambling addiction was a mental disorder that diminished his capacity when he committed the crimes he pled guilty to.
Gambling Addiction Disorder as a Criminal Insanity Defense
While the gambling addiction insanity defense has been used to reduce the severity of an offender’s punishment, it has yet to excuse the commission of a crime. For this defense to be feasible, a defendant must demonstrate he is not responsible for his actions because his gambling disorder constitutes a form of insanity.
A majority of jurisdictions in the United States use one of two legal tests for insanity: 1) the M’Naghten Test, where an individual qualifies as insane if as a result of a mental disease or disorder, he does not know that his conduct was wrongful; or 2) The American Law Institute (ALI) Test, where a “person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity … to appreciate the criminality [wrongfulness] of his conduct.” See, Kate E. Bloch & Jeffrey Gould, Legal Indeterminacy in Insanity Cases: Clarifying Wrongfulness and Applying a Triadic Approach to Forensic Evaluations, 67 Hastings L. J. (2016). If a defendant commits a crime as a result of suffering from gambling disorder and does not know the crime he committed was wrong, or he lacks the capacity to understand why his conduct was wrong, a defendant may legally qualify as being insane.
While courts have been reluctant to allow defendants to rely on an insanity defense by reason of gambling addiction disorder, they have entertained the possibility that gambling addition disorder may qualify a defendant as legally insane. In United States v. Torniero, 735 F.2d 725 (2d. Cir. 1984), the court upheld the trial court’s exclusion of a criminal insanity defense based on the defendant’s assertion that his charges of interstate transportation of allegedly stolen jewelry were a result of his compulsive gambling behavior. However, the court stated “we do not foreclose admissibility of compulsive gambling in all circumstances, nor do we speculate on the desirability of the changes in the insanity law now being considered by Congress.” Here, the court reserved decision on whether a gambling disorder constitutes a “mental disease or defect” under the ALI Test.
In United States v. Lewellyn, 723 F.2d 615, (8th Cir. 1983), the central issue raised was the link between criminal activity and pathological gambling. The Court upheld the District court’s ruling that the defendant could not rely on a gambling addiction insanity defense for charges relating to embezzlement, but did not decide whether a limitation should be placed on the availability of this defense. The court noted that pathological gambling disorder (under the DSM-III) has only been recently recognized as a mental disorder and that there is a lack of clinical studies available and limited knowledge about this condition.
The courts have left open the opportunity for a defendant to put forward a successful gambling addiction disorder criminal insanity defense. With the reclassification of gambling disorder in the DSM-V, additional research on its effects on one’s mental capacity, and time clinicians have devoted to better understand and treat this disorder, there has been a shift in how this disease is perceived by professionals and society as a whole. Courts should reconsider the effects of this disorder on one’s mental state when crimes are committed. And perhaps, a person suffering from gambling addiction disorder may be found legally insane and not responsible for the crimes committed as a result of this disease.
BY: Laurence Banville, Esq., trial attorney and founding partner at Banville Law, a plaintiffs’ law firm based in New York City.
In 1982, after their son Scott was murdered, the Campbell family was barred from entering the courtroom when the murderer was tried. They were not allowed to make sentencing recommendations and only learned of the killer’s subsequent release from prison through media reports. The Campbells were not alone. Victims at this time were not simply a blind spot, a group that the criminal justice system simply failed to include in its calculations. They were actively marginalized.
Throughout the latter decades of the 20th century, victims of crime were granted no formal legal status. To the criminal justice system, these people – who had been injured and traumatized – were little more than witnesses or sources of evidence, likely to be re-traumatized by their encounters with law enforcement and prosecutors. It comes as little surprise that victims were frequently, if not systematically, excluded from criminal proceedings.
Today, there is little doubt that victims of crime have been granted some place at the table. But this place was only formally set in 2004, when Congress passed the Crime Victims’ Rights Act (18 U.S.C. § 3771) – granting victims and their families the right to be informed of trial developments and a limited role in criminal proceedings. This was certainly a step in the right direction; however, victims and families are often nevertheless left on their own. Compensating victims – especially for the non-financial harms – has traditionally been an afterthought.
As an aspect of sentencing, restitution is only mandated in about one-third of states, and it’s usually limited to violent felony offenses. Even where restitution is required, courts make no room for losses that cannot be strictly quantified. Pain, suffering and psychological trauma – in many cases the most lasting harm to victims – are not accounted for in the equation.
Perhaps more onerous, although certainly easier to rationalize, restitution frequently requires conviction. Of course, there is a glaring disparity between the rationale underpinning this conviction requirement and the reality of criminal justice – one that becomes more obvious in sexual assault and abuse cases. Convictions are few and far between. In cases of assault and battery, only 41 out of every 10,000 criminal offenses will lead to a criminal conviction, according to the Rape, Abuse & Incest National Network (RAINN). Thus only a small minority of victims will receive the “justice” made possible through criminal proceedings, let alone the private remuneration promised by restitution.
Thankfully, conviction usually isn’t required for victims to receive compensation through a state-administered compensation fund. In most cases, an arrest isn’t required, either. But prompt reporting is, and victims are required to cooperate fully with criminal investigations. But even here, we find a glaring disparity. Only 34% of rapes are ever reported, according to the Bureau of Justice Statistics, often because the victims are related to the perpetrators and fear retaliation. When children are the victims, the statistics become even less heartening.
And while there has been progress compensating victims for physical injuries, recognition of compensable psychological injuries has been less successful. Some state programs only compensate victims, even direct victims, for physical injuries. The legislative process is slow, and we can’t expect federal and state legislatures to capture every scientific development instantaneously; but a maturing neurobiology of trauma has closed the gap between “psychological” harm and physical damage. Brains are flexible and trauma is real. Where children are concerned, we now understand that brain development “grows” around traumatic experience. It’s time that we brought “pain and suffering” under the heading of physical injuries, where a robust science of victimization tells us it belongs.
For now, civil action completes the picture, making up for the deficits inherent in the criminal justice system and expanding the scope of those damages which are considered compensable.
Likewise, the bright line separating criminal and civil proceedings – public and private wrongs – has been obscured in recent years. Victims have been granted a limited role in criminal proceedings and, in increasing numbers, are learning that they have a right to private action.
These developments are critical, and while parallel proceedings can produce significant complexities for prosecutors and civil attorneys, a truly rational justice system demands both concern for societal health and individual lives.
POST WRITTEN BY: Michael B. Mushlin, Professor of Law at Elisabeth Haub School of Law at Pace University, Scholar, and Renowned Expert on Prisoners’ Rights.
All felony defendants convicted of a felony in New York are assessed a non-waivable $375 surcharge upon conviction. When they are sent to prison their prison accounts are assessed to pay these charges which depletes the meager amounts that inmates are able to earn in prison which otherwise might be used to buy supplies that can ease the burden of incarceration and also to maintain essential contact with their families through phone calls and visits. Theoretically, judges can defer these charges while the defendant is in prison, but the standard for doing so is hard to satisfy and the procedure for doing so has been made so enormously difficult by a recent restrictive decision of the New York State Court of Appeals, People v. Jones, 26 N.Y. 3d 730 (2016), that it almost never happens. Ironically, the law governing these matters involving small sums of money is as complex as the law that controls major securities transaction.
In People v. Tookes, __ N.Y.S. 3d __, 2016 WL 3221208 (Sup. Ct. NY County June 8, 2016), (attached) Judge Daniel Conviser of the New York State Supreme Court sensitively addresses this issue and in his analysis indicates why a legislative fix is needed to address this problem. Judge Conviser in his opinion demonstrates powerfully why something that seems so insignificant to so many is so critical to people in prison. Judge Conviser in the conclusion of this opinion notes that:
[s]entencing for a trial court is not an abstract exercise. A sentence is pronounced on a human being, who, no matter what crime he or she has committed, stands in the well, often in custody, and often with family members close by, who upon a sentence to state prison will suffer a significant punishment … as the one human being who is most directly responsible for sending a fellow human being to be confined in a correctional facility where much of what makes a life worth living is taken, the sentencing court should have the ability to provide the extra soap or deodorant, the postage stamps which might make communicating with family easier or even the extra food which might make prison life more bearable.
Id. at 14. These words demonstrate a humanity and understanding that is rare to find in a judicial opinion. I hope that this decision will lead to change in the law to allow judges in appropriate cases to defer these charges at least during the period of a prisoner’s incarceration. It certainly deserves wide circulation and attention.