Gambling addiction as a mitigating factor at sentencing

Should gambling addiction be treated as a mitigating factor and, if so, why? While hard facts are difficult to come by, gambling seems to be a significant problem in Ireland, as in many other countries. A report published in The Economist (9 February 2017) showed that in 2016 Ireland ranked third in the world, behind Australia and Singapore, in terms of gambling losses per head of population. Our total gambling losses (about half of which resulted from online gambling) for that year amounted to the equivalent of $2.2 billion. Of course, not all gamblers are addicts. Many people, for instance, occasionally buy lottery tickets without being addicted to doing so.

A survey of Court of Appeal judgments since the Court was established in 2014 shows that gambling features in various ways in sentence appeals. In some cases, defendants were said to have become involved in crime, usually drug dealing, in order to pay off gambling debts. Gambling addiction is most likely to feature in fraud-type cases where defendants have misappropriated money from clients, employers or others to finance their addiction. In People (DPP) v Hehir [2018] IECA 244, an undue leniency application, the defendant had pleaded guilty to 10 sample counts of theft from his employer, and it was accepted that he had stolen the money to fuel his gambling addiction. At the time of sentencing, the total loss to the employer stood at about 250,000 Euro though the defendant had made, and was making, sustained efforts to pay back as much as he could. Taking account of the many mitigating factors including an early guilty plea, the defendant’s otherwise impeccable record and his efforts to address his addiction, the trial judge imposed 240 hours community service on one count, and a two-year suspended sentence in respect of the others. The Court of Appeal (at [27]) noted that the trial judge had “considered the offence should be viewed in the light of the addiction to gambling which is a recognised psychological affliction and he noted with approval [the defendant’s] apparently successful efforts at dealing with the problem.” The Court of Appeal itself did not comment further on this aspect of the case, but it did describe the trial judge’s sentencing statement as a model of its kind. It also dismissed the undue leniency application and let the sentence stand.

Why then should gambling addiction be a mitigating factor? To answer this question, we must revert to first principles and, in particular, the principle of proportionality which, in Ireland, requires that every sentence (unless mandatory) must be proportionate to the gravity of the offence and the personal circumstances of the offender. Gravity, in turn, has two ingredients: harm and culpability. An offender’s addiction is scarcely relevant to the assessment of harm. The harm inflicted by fraud, which will typically consist of the loss incurred by the victim, is scarcely any the less because it is attributable to the offender’s addiction. Culpability which, for sentencing purposes, refers to the offender’s subjective moral blameworthiness, is a different matter. An offender’s culpability, as measured at the time of the offence, may be reduced by factors such as youth, mental illness or disability. (We are not concerned here with drug or alcohol addiction, but it should be noted that intoxication at the time of the offence, as opposed to a proven substance addiction, will not normally mitigate and may occasionally be treated as an aggravating factor).

How then might a gambling addiction reduce culpability? This question has been addressed most directly in some fairly recent United States (federal) district court judgments At first sight, it may seem strange that these courts have considered the matter at all because the United States Sentencing Guidelines state quite bluntly: “Addiction to gambling is not a reason for a downward departure” (Para. 5H1.4). However, as a result of United States v Booker 543 U.S. 220 (2005), directives of this kind are now advisory rather than mandatory. During the past decade, federal trial judges have treated gambling addiction as a mitigating factor in fraud cases, some of which involved the loss of many millions of dollars, and imposed sentences well below the guideline range. One of the more notable of these cases and the only one that seems to be formally reported is United States v Dikiara 50 F. Supp.(3d) 1029 (E.D. Wisconsin, 2014). The defendant, a 56-year-old woman with no previous convictions, pleaded guilty to embezzling more than $1 million from her employer. She had gambled away nearly all of it at a casino. The trial judge (Adelman J.) noted that white-collar crimes are often rationally calculated, thereby justifying deterrent sentences. However, she said that defendants with a gambling addiction lack that rationalising capacity. She then referred to United States v Hendrickson 25 F. Supp.(3d) 1166 (N.D. Iowa, 11 June 2014) which dealt with drug addiction. Bennett J., the trial judge in Hendrickson, having surveyed some of the scientific literature, said that while the initial decision to take drugs is mostly voluntary, “when drug abuse takes over, a person’s ability to exert self-control can become severely impaired.” He quoted from a scientific article which stated that “drugs of abuse are characterised as ‘hijacking’ the neuro-biological mechanisms by which the brain responds to reward…” Judge Bennett then concluded: “Stated plainly, addiction biologically robs drug abusers of their judgment, causing them to act impulsively and ignore the future consequences of their action.” He did, however, caution that addiction is not “limitlessly mitigating.” It may not mitigate where there is no causal connection between the addiction and the offence, where the offender has turned down or failed to take advantage of numerous opportunities for treatment or where the offender repeatedly violates terms of supervised release by using drugs or alcohol.

Reverting then to Dikiara, Judge Adelman, having considered Hendrickson, said:

“Judge Bennett was talking about drug addiction, but as the evidence the defendant presented showed, gambling addiction is similar. The American Psychiatric Association recently reclassified pathological gambling from an impulse control disorder to an addiction disorder…. Defendant also cited research that slot machines, her preferred mode of gambling, were more addictive than other forms of gambling.”

The judge also noted that the defendant did not steal out of a desire to harm her employer, but rather to finance her gambling, and that she had tried to obtain treatment and rebuild her life after the crime came to light. The latter factor suggested a reduced risk of reoffending. The judge therefore imposed 15 months’ imprisonment, which was considerably less than the guideline range of 41 to 51 months.

United States v Caspersen (S.D.N.Y, 4 November 2016) was in a different league in terms of offence gravity. The defendant pleaded guilty to defrauding investors of more than $38 million and misappropriating $8 million from his former employer. It seemed to be accepted that the appropriate guideline sentence was in the range of 12 to 16 years, and prosecutors sought a sentence of more than 15 years. However, Judge Rakoff imposed 4 years’ imprisonment. He had been urged by defence lawyers to consider the defendant’s “pathological” gambling addiction as the reason why he had obtained millions of dollars to engage in risky trading options. There was a lengthy sentencing hearing at which detailed evidence was heard from Dr Marc Potenza, a Professor of Psychiatry at the Yale School of Medicine. He is quoted as having said:

“Mr Caspersen suffered from a severe gambling disorder, a mental illness, and there is little doubt that it contributed substantially to him losing his own money and seek money by fraud from others to continue on the same destructive path.”

Despite having initially expressed some doubts on the matter, Judge Rakoff said he deemed it more likely than not that gambling addiction existed and could be a mitigating factor although it always had to be balanced with other factors. He accepted that the addiction had “very seriously impacted [the defendant’s] exercise of rational control and rational decision making”, and that there was no point in letting him rot in prison for years on end. More recently, in 2019, Michael D’Alessio, a New York property developer, pleaded guilty to defrauding investors of $58 million and was sentenced to 6 years’ imprisonment. The prosecution had recommended a sentence of 97 to 121 months. D’Alessio’s defence lawyer claimed that he was in “the vicious grip of a compulsive gambling disorder.” The trial judge, Furman J., said that while gambling addiction was not an excuse, it could mitigate culpability. (On these and other similar cases, see Brian A. Jacobs, “A Good Sentencing Precedent is Hard to Find” (2020) 32:3 Federal Sentencing Reporter 138).

The question to be asked about Dikiara in particular is whether the court was correct in applying to gambling the scientific insights about the impact of drug addiction. After all, substance ingestion may well “hijack the brain”, as Judge Adelman noted. Gambling, on other hand, is a non-substance-based behavioural addiction. Yet, it seems that judges who are treating gambling addiction as a significant mitigating factor have science on their side. As noted by Judge Adelman, the American Psychiatric Association in the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published in 2013, included gambling disorder in the chapter on “Substance-related and addictive disorders” whereas it had previously been listed as an impulse control disorder. Gambling disorder is the only condition now included under “Non-substance related disorders.” See J.E. Grant and S.R. Chamberlain, “Expanding the definition of addiction: DSM-5 vs ICD-11” (2016) 21:4 CNS Spectrums 300; Marc N. Potenza, “Non-substance addictive behaviours in the context of DSM-5” (2014) 39:1 Addictive Behaviour 1.

One thing we do know is that there is nothing fixed or static about the range of mitigating and aggravating factors that courts can, and do, consider at sentencing. Some, such as the discount for a guilty plea, are very well established and, as Jane Austen might say, universally acknowledged (in the common-law world at least). But the means by which, and the background against which, certain offences are committed are constantly changing, especially through the exploitation of new technologies, and the use of some of these means must now be regarded as aggravating. On the other side of the coin, emerging knowledge about certain conditions or disorders such as addiction can doubtless justify courts in treating them as mitigating, assuming the necessary causal nexus between the condition and the offence is found to exist.

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