WRITTEN BY: John A. Vitagliano (’17), J.D. Elisabeth Haub School of Law at Pace University & Prof. John Meringolo, Esq.

Introduction
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.

Conclusion
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.