For the Defense - Vol. 6, Issue 2 - 39

the Rutgers Center for Gambling Studies website
along with other resources and information
Gambling as a Defense
There are two basic approaches to using
gambling addiction as a defense: 1) as the
basis for insanity or 2) as a mitigating factor at
sentencing. The first approach has been used with
very limited success.26
Instead, a majority of cases
have highlighted the relationship of gambling
addiction to the crime for consideration during
sentencing. On the federal level, some courts have
granted downward departures when a defendant
had diminished capacity from gambling disorder
that contributed to the crime27
and/or rendered
the defendant unable to control their behavior.28
In a recent case, a federal judge sentenced
disgraced Wall Street executive Andrew Caspersen
to four rather than fifteen years in prison because
his severe gambling addiction led him to steal
roughly $38.5 million, which he then lost on
aggressive stock options bets.29
These and other
recent cases suggest that, at least on the federal
level, there is a slow but growing acceptance of
gambling-related defenses and a recognition that
gambling, likes substances, can affect individual
decision-making.
Despite such recognition in select cases, a
majority of the bar, judiciary, and probation
officers are largely uninformed about gambling
disorder. For that reason, establishing a defense
requires not only assertions but also education
and careful planning. A preliminary but important
step in the process is for the defendant to receive
an assessment from a certified gambling counselor
and attend Gamblers Anonymous meetings online
or in person. In Pennsylvania, the state provides
treatment by qualified counselors through the
Department of Drug and Alcohol Programs.
The education piece is important because
gambling is, essentially, glamorized in society and,
as such, many members of the bar view gambling
as a relatively harmless recreational activity. Some
may have children who receive lottery tickets in
their Christmas stockings or attend schools were
administrators overlook card games for money in
the lunchroom. Few are aware of the nature and
extent of gambling-related harm or the effect of
early experiences on future gambling problems
and harmful consequences. They are, therefore,
likely to dismiss or minimize the effect of gambling
addiction on the brain in behavior, although those
effects and their relationship to crime are wellaccepted
with regard to alcohol and controlled
substances.
An experienced and well-qualified gambling
expert should provide a report that clearly
outlines the nature, progression and extent of
problem gambling and gambling disorder for each
defendant, the development of gambling problems
including risk factors, the intergenerational impact
of gambling and addictions in the family, the
role of comorbidity, and other factors that bear
The Value and Selection of Expert Testimony
In minor criminal cases, the treating gambling
counselor is
likely sufficient to testify to the
client's problems and compliance with treatment
attendance and goals. However, in felony cases
with the potential for extended incarceration, an
expert in both gambling counseling and gambling
research is critical. Ideally, the expert would be
separate from the gambling counselor and able to
serve as an objective third-party to provide a history,
evaluation, and integration of the counselor's
report; they should also provide evidence-based
educational materials such as research articles for
the court and probation office.
Vol. 6, Issue 2 l For The Defense 39
https://socialwork.rutgers.edu/centers/center-gambling-studies https://www.pacouncil.com/gambling-counselors/
For the Defense - Vol. 6, Issue 2

Table of Contents for the Digital Edition of For the Defense - Vol. 6, Issue 2
