Collecting Gambling Debts Across State Lines
`
`guess what a state court would do; a plaintiff starts his case off on the wrong foot
`by choosing a judge who does not want to hear this type of case.
`How does a state court. or a federal court acting like a state court, decide whether
`local public policy will prevent enforcement of a gambling debt that is legal where
`made?
`Even before the voters of New Jersey approved legal casinos, one prescient and
`observant judge saw the third wave of' legal gambling had changed public opinion
`in that state. Faced with a defendant who admitted running up a big gambling tab
`at the Caribe Hilton of San Juan, Puerto Rico, and stopping payment on the checks.
`Judge Mountain of the New Jersey Supreme Court asked, “Should New Jersey any
`longer remain a privileged sanctuary for those who would play but will not pay?"
`Caribe Hilton Hate! it Toltmd, 63 NJ. 301. 307 A.2d 35 (1973). Judge Mountain
`looked at the changing laws of New Jersey and the attitude of the citizens toward
`legalized gambling and decided, “The fact that wagering in various different ways
`is now authorized demonstrated that our public policy no longer can be said to con-
`demn gambling per se. "
`The question often comes down to whether the principles of the Statute of Anne
`are still valid. That statute, remember, outlawed legal as well as illegal gambling debts.
`Gambling in the United States today is big business. with publicly owned multi-
`national corporations investing hundreds of millions of dollars in licensed casino
`resorts. Is it possible that a law passed to protect a semi-feudal aristocracy of the
`late Middle Ages still is the law of the United States‘?
`Absolutely.
`On August 5, 1983, a federal judge, sitting in the United States District Court in
`Richmond, Virginia, ruled that Resorts International Hotel, Ine., could not collect
`on a $10,000 promissory note signed by one Joseph J. Agresta, because Mr. Agresta
`had lost the money gambling. Although gambling is legal in Atlantic City and gam-
`bling debts are collectible under the statutory law of New Jersey, this lawsuit was
`being brought in Virginia, and Virginia law has adopted both the letter and spirit
`of the Statute of Anne—gambling debts, even legal ones, are not collectible in Virginia.
`What made the case even more unusual is that the defendant. Mr. Agresta, didrft
`
`even show up; he failed to plead or otherwise defend against the complaint. Resorts
`International thought it was going to get an easy defaultjudgment; instead, it found
`its lawsuit dismissed.
`
`The court cited a Virginia case from 185] proving that it has been the public policy
`of that Commonwealth for the past 250 years to consider all gambling contracts as
`void. The court was also able to point to a statute passed in 1919 and a 1980 Virginia
`Supreme Court case, Kennedy v. Anmrmdale Boys Club. Inc. , 272 S.E.2d 38 (Va.
`I980). In that case the plaintiff, Eva M. Kennedy. claimed that she had won a bingo
`game but the charity refused to pay. Mrs, Kennedy was thrown out of court despite
`159
`
`

`
`Gambling and the Law
`
`the fact that the bingo game was legal under the. laws of Virginia—g-ambling debts
`are not collectible, at least in Virginia.
`An interesting twist is that the federal judge admitted that another federal judge.
`sitting in the exact same court, had ruled the other way, allowing the casino to col-
`lect. Both judges were trying to guess what a state court in Virginia would do; but,
`Virginia state courts had never had to decide a case involving a legal casino bet. The
`second judge was more familiar with the law of Virginia, or maybe the first casino’s
`lawyers did a better job. The law is not supposed to lead to such radically different
`results, particularly not in identical cases decided in the same court.
`A California resident used to be able to run up a big debt at a Nevada casino and
`then stop payment on his checks or otherwise refuse to pay and the casino could
`do nothing about it, other than to cut off the player’s credit. California courts had
`always thrown out gambling debt collection cases brought by Nevada casinos. The
`California courts did not have to look to the public policy of California like the Virginia
`federal court looked to the public policy of Virginia in the Resorts case. The Califor-
`nia courts had a much simpler argument: if a Nevada court would not enforce a gam-
`bling debt made in Nevada 21 California court certainly wasn’t going to enforce it either.
`But the law of Nevada has now been changed. A Nevada court will enforce a gain-
`bling debt, but only if that debt is owed to a casino and is in writing.
`Someday soon a California gambler will refuse to pay off a gambling debt and
`the casino will sue in a California court. California. for the first time. will have to
`decide whether it will enforce Nevada gambling debts owed to the casino. Perhaps
`the court will find that a statute that only allows the casino to sue, and not the player,
`is repugnant to California public policy. And, for the first time, a California court
`will have to decide whether gambling in general is against the public policy of the
`state. despite California’s horse racing, bingo, card rooms and new state lottery.
`The Nevada State Legislature has created a situation that will soon force Califor-
`nia to decide whether the Statute of Anne of 1710 is still good law, and whether legal
`gambling debts are enforceable in 1986 America.
`More interesting is the case of Nevada itself. The courts of Nevada have consistently
`declared for over a century that the Statute of Anne is still the law of that state. and
`gambling is against public policy. That was the reason the state Legislature had to
`pass a statute to make casino markers collectible. But that did not necessarily change
`the public policy of the state. Will a Nevada court refuse to enforce an Atlantic City
`casino marker against a Nevada defendant on the ground that gambling is still against
`the public policy of Nevada?
`You may have wondered what one of these cases actually looks like. The court
`files would take up a number of file folders for what are known as pleadings, the
`documents that form the framework for the case and inform the court what is going
`on. Remember. however. that in our adversary system the judge will not look at these
`160
`
`

`
`Collecrirzg Gambling Debts Across Stare Lines
`
`documents until called upon to render a decision, usually after months or years of
`work by the lawyers. The court clerks stamp every document and file it in the proper
`file, but the judges do not wander down to the file room to see the hundreds of new
`cases filed each day.
`The lawyers‘ files will be much thicker than the courts. There will be copies of
`all correspondence, any documents turned over by the client or produced by the other
`side, research memos including photocopies of cases, and documents created during
`the life of the case that have not been filed with the court.
`
`The heart of the files are the pleadings, starting with a summons and complaint.
`which tells the defendant he has been sued and lays out the plaintiffs basic case.
`There is some form of return of service to let the court know that the summons and
`
`complaint have been served.
`to do
`After being served the defendant has a very short time, usually 20 days,
`something. If you have been sued you must immediately go to a lawyer; once the
`lawyer has your file almost anything that goes wrong is his fault, not yours, which
`is the reason lawyers have malpractice insurance. Defendant’s lawyer will usually
`call up plaintiffs lawyer and ask for more time to prepare a response; 20 days is
`a short time to research the facts and law and lawyers tend to put everything off to
`the last minute anyway.
`Defendant's lawyer will now serve some documents in return. Standard responses
`are to move to dismiss for some defect in the plaintiffs case; in some states we call
`that a demurrer. Defects can be anything from technicalities, such as the process
`server who left the papers was underage, to problems that go to the basic founda-
`tions of the case. Typical of the latter in a gambling debt case would be a motion
`to dismiss a complaint for failure to state a claim; the defendant would file a memoran-
`dum citing statutes and cases that show that gambling debts are not collectible under
`the laws of this state.
`
`Often the defendant will file an answer first. The answer can include all of the
`
`defects in plaintiffs case and also contain denials of plaintiffs allegations of facts.
`This gives the defendant more time to prepare his motions to dismiss.
`Another common defense action is to file a counterclaim. In a gambling debt case
`the player may sue the casino, claiming the casino used unfair collection practices.
`Counterclaims are often filed for bargaining purposes, but you must not file such
`a claim unlessyou have a good faith basis in believing it is true. Defendants also
`look around for other parties to drag in and share any possible loss; we call these
`new claims third-party complaints. Naturally, any counterclaim or third—party com-
`plaint starts a whole new chain of responses from the opposing parties.
`After these initial documents there usually is a short flurry of discovery. The par-
`ties ask each other for relevant documents, for example copies of cancelled checks
`and credit markers. A party can send written interrogatories, questions that must
`161
`
`

`
`Gambling and the Law
`
`be answered under oath. Depositions are common; they involve questioning a per-
`son under oath while a stenographer takes down every word said. Discovery comes
`and goes in short bursts of activity followed by months of quiet.
`At some point a party will try to find a way to resolve the case without having
`to go to trial. Settlement is one way, motions are another. A standard motion by either
`party is a motion for summary judgment. This is like the motion to dismiss for failure
`to state a claim but allows the parties to tell the judge about additional facts. If the
`judge decides that there are no facts in dispute and that the moving party is entitled
`to win as a matter of law there is no need to have a trial; the judge will enter judg-
`
`ment right then and there.
`The overwhelming majority, something like 97% of civil cases, do not go to trial.
`The costs of a full trial are so great that evena party with a winning case has a strong
`incentive to settle for less than the full amount possible.
`
`I have discussed a number of gambling law cases throughout this book. I have in-
`cluded a typical decision to show what a reported case looks like, and how judges
`make their decisions.
`
`This case is from me Southern Reporter, part of the system set up by West Publishing
`Company. West is by far the leading publisher of court cases; it tries, and almost
`succeeds, in publishing every reported decision anywhere in the country. West has
`also developed a Key Number System that allows a lawyer to find a case dealing
`with a similar issue in any of West’s cases or digests for any place in any year. The
`little key tells you that this case has been analyzed and indexed by West and is part
`of that system.
`The name of the case tells you who the parties are, at least on appeal. Since the
`hotel is the appellant you can assume it lost in the court below. Most of the cases
`studied by lawyers are appellate cases. only in the federal courts with important cases
`do you usually get written published opinions from the trial judge.
`The court issuing the opinion comes next. This tells you who is bound by this
`decision. Courts outside of Florida will not consider this case as binding precedent.
`Since this was not the state Supreme Court,
`it is possible that courts of appeal in
`other parts of the state might differ, but that is very unlikely. The date is the date
`the decision was issued by this court.
`The one paragraph summary is written by West. It tells you what happened in the
`trial court below and what this court had to say. As you can see, a Pueito Rico casino
`sued a Florida resident, in Okaloosa County, to collect a gambling debt. The trial
`judge granted a summary final judgment against the casino; this means there were
`no questions of fact in dispute and the defendant was able to convince the trial judge
`that under Florida law the plaintiff cannot recover. We do not have any of the actual
`papers coming out of the trial court. just whatever this appellate court wants to tell
`162
`
`

`
`Collecting Gambling Debts Across State Lines
`
`
`(BEE
`
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`ghee when creamed unnet he Inflated in
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`
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`{er apnellun.
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`liken‘.
`
`GlJ!i.IE..Poue1l.Ch‘utview.forep1:ellee.
`
`RAWLS, Judge
`
`Dumb Bach Hotel Corporation has IF‘
`peeled Item I summery flnel judgment Ill-
`uylngittherlghttucollaetegnmblifll
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`when: created be enfureaed in Flnlillll
`
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`Irhile in Puerto Rite where etllllfl FW
`hung in mm, [ambled in Appelllnfe li-
`eeneed eulm. last name: Ind [In A9133‘
`lInIIeheekfo‘r$5,CIIO.NtnpIyInrhlI
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`the eheeh, Ind the Hotel brought this It-
`lien in Florida. The can judge amend
`Iunmnry final judgment tor delendent on
`zhagnmdnhn the debt Inn nmuecc-bk
`
`b_-yu'rtuenfSeu:lou8493,FIurHasm-
`utea. F.S.A. We Irelneeeerrdwiththn
`pronouneementlnYouII;v.SundI,lnr'.,
`12 Sold 618 (Fl!-KIIII-31,1”). II!
`the
`effect that I gambling obligation although
`trllitl. In the tilt! where enetad cutflot ls!
`«untamed in Florida because it in contrary
`to public pulley. Ind she:-clan Ifllnn.
`
`[3-4]Thepub1icpolle;'ult.lIhStItseil
`that the form at [|tl'I.hllII| nude lepl Ire
`mum Ingest lot there melting plum!
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`cannula are mgat between saemaliouee or
`dust. Ind pert oi the entertainment Iliad-
`ulhntheepettttnnhfltesutdepermlb
`elm to wager an the antennae 1:! then: III-
`trktcd ewnu provided the State incite:
`ill "net er! the mid".
`In Quite the public
`policy of the Stllae of Flwiil is Iltlhlished.
`to permit I restricted type of -fllllllllflf
`which is
`incidental
`In cpcmun mm.
`Thin Stete hu eemhcently reltnul to per-
`ml! guntsllng on non-spectator mm met:
`-u hoolde pu-Ion. ‘lunlhlll pal-Ian, at eaten.
`Thu.
`the public pulley at the Stete cl
`Florldl it well established tint the State
`will condone eerie-in selected farm: at
`gunning. but
`it an mmau been et-
`nblhhcd that the Stlbe will not lend ice ju-
`dielel em to the ealleetlm n! mantle-I we-
`geredineuehunujllilesnotnuthnriaedhy
`the hr of the Stlte at Fluridl. Although
`many eitnru hue been mule to obtain le-
`gll nllclitrlt for fingering It gaming tlblel.
`inch authorization he never been given;
`and ehuuld I. citizen a! the State at Flor}-
`de Ian I: I gemlng tehle In the State.
`eleerly the operator could not
`collect
`through the judicial pmmm.
`It In our
`eenelleien thet thin lnrum will not exhmd
`in Judicial I1'Il'l to eld in the collection of
`thietg-pegamhllngdebtwhethertltetnnr
`Ietion giving flee to the Ian awe: in Ne-
`vI.d.I, Patertn Rice or Home Carlo.
`Aiflrtled.
`
`WIGGKNTDN. C. J... Ind SPECIDR. J'..
`ClNl.CI|l'.
`
`Reproduced with permission from 202 50.26 830,
`
`Copyright @ 1963 By west Publishing co.
`
`us. The District Court of Appeal agreed with the trial court, that the casino could
`not collect, so the judgment was affirmed.
`.
`The four numbered paragraphs are written by West and put the reader into the
`W953 K3)’ Numbering System. West has developed headings for every area of the
`law; gambling law cases in general come under “Gamjng." Gaming key numbers
`1 through 50 will have any case holding relating to “Gambling Contracts and Tran-
`sactions.” Key number 1
`is “Wagers in General" and number 2 is “What Law
`Governs." Key number 25 is under the subtopic of “Rights and Remedies of Parties"
`163
`
`

`
`Gambling and the Law
`
`to a gambling contract; specifically, “Parties to Bet or Game, Enforcement of Con-
`tract." Lottery cases are indexed under the separate heading “Lotteries;" while horse
`racing cases, for historical reasons, fall within “Theaters and Shows,“ West tries to
`have a key number for every possible topic and subtopic. With gambling they cover
`everything from “Cheating or Fraudulent Practice," key number 16, to specific games:
`"Keeping or Exhibiting Gaming Table, Device, or Implements; Crap Table,“ key
`number 74(4). If you want to know whether the courts of Hawaii have decided any
`cases on the crime of having a crap table you can go to Gaming key number 74(4)
`in the Hawaii or Pacific Digests and find all the reported cases in which a crap table
`was involved.
`The paragraphs summarize what this case had to say about each key number topic.
`The citation “F.S.A. Section 849. 26" refers to the Florida statute discussed by the
`court. That statute is Florida’s version of the Statute of Anne, making all gambling
`
`contracts void, except for parimutuel bets.
`Next come the names of the lawyers. If you like what a lawyer did in a reported
`case you can contact him to handle your problem.
`Rawls, Judge, is the judge who wrote the opinion. Cases taken up on appeal are
`usually heard before panels made up of three judges, although only one usually writes
`and signs the opinion. The names of the other two judges are at the bottom of the case.
`Everything from here on was written by the judge, except the numbers in brackets.
`Those numbers relate to the key number paragraphs at the beginning of the case.
`Say you are a Florida resident who owes money to a Puerto Rico casino. the only
`thing that interests you is key number 4. You can go directly to the part of the case
`that discusses that key number by finding [4]. Opinions can run for dozens of pages
`and cover many different points of law, the key number references can save you from
`reading cases that seem to be on point but are not.
`A good court opinion will start with a summary of the pertinent facts and law.
`Here we quickly find out what happened in theycourt below and what the legal ques-
`tion is that the judges now have to decide. We also find out the facts.
`There is no dispute that Jernigan gambled and lost in a licensed casino in Puerto
`Rico, that he gave the casino a check for $6,000 for his gambling losses, and that
`he stopped payment on the check when he returned to Florida. The casino sued
`Jernigan in Florida and the trial court entered summary judgment for the defendant
`on the ground this gambling debt was uncollectible under Florida statute. The ques-
`tion is whether the trial court was correct.
`
`The court of appeals quickly states that the statute and another Florida case in-
`dicate that gambling debts are not enforceable in Florida, even if legal where created,
`because it is contrary to Florida's public policy. The court now has to give its reason-
`ing for this conclusion.
`The court was immediately faced with the problem of the existence of widespread
`I64
`"
`
`

`
`Collecting Gambling Debts Across State Lines
`
`gambling throughout the state of Florida. The judge could not pretend that gambling
`is illegal in his state; he knew that there are horse races, dog races and jai alai, which
`attract thousands of bettors. But he wanted to uphold the law as he saw it, to continue
`to make gambling debts uncollectible. He therefore had to distinguish casino gam-
`bling from the type of gambling common in Florida.
`He did this by saying that Florida gambling is primarily for tourists. Furthermore,
`these are contests, and the betting is “incidental to spectator sports.“ He pointed out
`that Florida had considered casino gambling but had rejected it. Therefore, unless
`the bet was on a form of gambling authorized by Florida law. the courts will not
`help the winner collect.
`There are a number of ways to read this decision. On the surface we now know
`what the law of Florida is with regard to casino bets from Puerto Rico, with strong
`references to Nevada and Monte Carlo. This will be the law until it is changed by
`a later court or the Florida legislature. If gambling increases dramatically, particularly
`if casinos come to Miami, the rationale behind this decision will be gone.
`On another level the case helps answer the question about when and how public
`policy can be used by one state to block the laws of another. Puerto Rico is part of
`the United States, and it is only the strongest public policy of Florida that would
`allow a Florida judge to disregard the laws of its sister commonwealth.
`Who determines what is the public policy of a state? Apparently the judges felt
`they were in a position to do so. How do they decide what that public policy is? They
`looked to statutes passed and defeated by the state legislature and tried to determine
`what is behind what they observed happening outside their courthouse doors.
`One of the interesting twists to this decision is that the conclusion reached does
`not follow automatically from the arguments given. Change some of the language
`a little, emphasize the amount of gambling in Florida rather than the spectator nature
`of the sports and this opinion could have been in favor of the casino. Courts in New
`York dealing with similar facts reached exactly the opposite conclusion: they felt that
`there was so much gambling, on spectator sports, that the public policy was in favor
`of gambling, all forms of gambling.
`It is also interesting to speculate as to why the court reached the decision it did.
`I find the tourist argument hard to buy, after all Puerto Rican casinos are limited
`to tourist hotels, while most people who go to Florida tracks are Florida citizens.
`In fact, at the time this decision was rendered Puerto Rico explicitly prohibited its
`casinos from offering their facilities to the Puerto Rican public. But perhaps the judges
`truly believed there was something fundamentally different about casino gambling.
`If it is not too cynical I would offer another suggestion. Always look at who the
`parties are and what they are asking the court to do. Here we have a Puerto Rican
`casino suing a resident of Florida in a Florida state court. There was no reason for
`the court to mention so prominently that Jernigan was a Florida resident; the result
`165
`
`

`
`Gambling and the Law
`
`would, or at least should have been exactly the same regardless of where the defen-
`dant resides, so long as he was properly served under Florida law. But state courts
`protect their own citizens, sometimes more than they protect out-of-staters. Puerto
`Rico is close geographically to Florida and there must be large numbers of Florida
`residents who gamble on the island. What benefit would there be to Florida (other
`than supporting the law) for Florida to open its courts to suits by Puerto Rican casinos
`against its residents? It would be a drain on the court system, and a drain on the
`pocketbooks of the state’s residents, with nothing to show for it but hard feelings
`toward the judges.
`Until Florida itself has casinos that want to collect on unpaid markers from out
`of state players, Florida courts are going to find that public policy supports the tracks
`and jai alai. but casinos are out of luck.
`
`166
`
`

`
`Gambling and the
`Criminal Law
`
`
`
`in every
`Gambling was not a crime under the ancient common law. Even today,
`jurisdiction, state or federal, gambling is not illegal, unless there is a statute that makes
`the specific act a crime.
`Since we are dealing with statutes, a person accused of a crime, or someone who
`just wants to see whether what they are doing is illegal, must first look up the actual
`words of the statute as passed by the state legislature or federal Congress. The statute
`will state what is illegal; if some activity is not covered by a statute it is legal. It will
`also become necessary to look up court cases that have construed the particular statute
`to find out what activities the courts think the legislature intended to be covered by
`the law.
`
`Nowhere is the nation’s ambivalent feelings about gambling more evident than with
`the criminal laws. On their face the criminal laws look pretty tough; almost all forms
`of public or commercial gambling are illegal, except those specifically licensed. Even
`most forms of private gambling are criminal, although there has been a great relaxa-
`tion in the laws against purely social betting. But despite the tough appearance of the
`laws, the reality is something far different.
`Look at a typical, hypothetical East Coast state. Many forms of gambling flourish
`here; some are legal and actively promoted, while others are illegal but tolerated. This
`jurisdiction has a state lottery requiring constant advertising. It was created with the
`promise of diverting large sums of money from the illegal “numbers” rackets into the
`state's coffers. The numbers games, however, remain.
`An old established horse racing industry enables players to place parimutuel bets
`at the tracks. There have been occasional scandals, but the major discussion among
`horsemen has been the declining patronage and perceived competition from neighbor-
`ing states. particularly a nearby state's off-track betting (OTB) operation and the state
`lottery. There is considerable interest in instituting an OTB operation within the jurisdic-
`tion, but the track owners want a guaranteed percentage from the state to cover any
`167
`
`

`
`Gambling and the Law
`
`loss in attendance. Bookies, operating quietly and illegally, are already around to take
`phoned-in bets from gamblers.
`In addition, the attention drawn to the Atlantic City experiment has created pressure
`from the local tourist industry to legalize casinos. Some urban legislators see casinos
`as a unique tool for redeveloping the inner city, others see it as a way of helping the
`resorts while raising tax revenue. But Atlantic City’s problems have scared them off
`for the moment. While discussion of legalization continues", the_ police have slowed
`down their already low level of activity against illegal gambling. The cops, including
`the top brass, consider it hypocritical to arrest people for illegal gambling, when gam-
`bling is legal across the street. As the deputy coordinator for criminal justice in the
`New York Mayor’s office admitted, “Once gambling is legalized, we’d have to reevaluate
`our law enforcement policy regarding illegal casinos.” N.lf Times, Mar. 27, 1979, at B1.
`Other legal and quasi—legal forms of gambling abound, sometimes not recognized
`as such. Bingo or one of its variations is allowed for charity, and a considerable in-
`dustry has developed around the regularly scheduled games. Commercial contests and
`sweepstakes are accepted as ordinary business practices.
`The legislature will decriminalize social gambling when it gets around to it; the statute
`is hardly ever enforced, anyway, except for purposes of harassment. The police recognize
`that the laws against social gambling are primarily a legacy of Puritan times and are
`now merely a symbolic gesture against sin. The prohibitions against social gambling,
`particularly private games, are neither enforced nor enforceable.
`The piecemeal expansion of legalized gambling has been accompanied by a relaxa-
`tion in the enforcement of those statutory prohibitions still in effect. The true meaning
`of gambling laws and the effect they have on restricting gambling activities are deter-
`mined less by what the law says than by how local police and prosecutors conduct
`their daily affairs. Crime enforcement in this state reflects the national trend, a steady
`and substantial decline in gambling arrests.
`The few arrests that are made almost always result in dismissals, findings of not
`guilty, or the imposition of a minor fine. This is not a sign that illegal gambling has
`died out; it flourishes. Bookies do a large business in illegal bets on single sports
`events and sports cards. The customers are typically solid middle class: mostly white
`males over the age of 18 with a college degree and a high income.
`The numbers racket, “policy," also flourishes, but with a different clientele. The
`numbers better is black, Italian or Spanish—speaking, and lives within the large urban
`area of the biggest city in the state. The amount of money bet on the numbers in-
`creases with the increased income of the players up to the $15,000 per year level of
`income.
`Off~tracl< bets on the horses with bookies; card and dice games; and other forms
`of illegal gambling occur to a lesser extent. Additionally, about 20 percent of the
`population break the law every year even though limiting their gambling to social
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`Gambling and the Criminal Law
`
`bets between friends. A total of 61 percent of the adult population participate in gam-
`bling each year, 48 percent in some form of legal or illegal commercial enterprise.
`Two parallel, marginally competitive markets thus exist. One is an area of expand-
`ing legal gambling enterprises. The other is a thriving illegal gambling trade that
`law enforcement officials, prosecutors, judges and die public are either unable or
`unwilling to eradicate. This imposition of minimal burdens by local officials on the
`operators and bettors of illegal games has led to an unofficial policy of benign pro-
`hibition. Benign prohibition is characterized by the following factors:
`1) Law enforcement agencies lack the resources to conduct thorough gambling
`investigations;
`2) Gambling is considered a low priority offense;
`3) Gambling-related corruption of police is widespread and weakens law
`enforcement;
`4) Many law enforcement officials believe that gaming laws are unenforceable and
`thus they ignore violations;
`5) Penalties for gambling offenses are relatively light.
`The problems of benign prohibition, particularly corruption, arise from the un-
`controlled discretion the police and prosecutors have at their command. Police discre-
`tion ranges from a cop on the beat ignoring the illegal acts he sees to officers com-
`mitting crimes themselves.
`The police are assuming a role they were not meant to assume when they have
`complete discretion as to who will be arrested and when. Red light districts develop
`when the police decide that the only way they can control prostitution and other vices
`is to allow them to exist only in certain areas. The police have no official power to
`pass zoning laws; they certainly have no power to nullify the law wherever they see fit.
`Officially the police are supposed to enforce the law against all those who break
`it. Cops know this is impossible; they do not arrest every one who jaywalks or starts
`a fight. If they did make an arrest every time they saw the law being violated they
`would soon have the community up in arms: the jails would be full, the court system
`would break down, and they would be in court constantly testifying and defending
`against suits for harassment and violations of civil rights. There are not enough
`resources to arrest everyone, and choices have to be made every day. The New York
`City police are so overworked that they have allowed wide-open drug selling in Green-
`wich Village so they can spend their time going after crimes of violence.
`The cop on the beat and even those higher up in the law enforcement structure
`are given no guidelines, or conflicting impressions, as to how to behave toward
`violators of the criminal gambling code. An officer making the gambling arrests he
`is told to make would receive no support from the department, the public or the judicial
`system. The result is that the officers realize that gambling arrests are considered
`unimportant, although gambling is prohibited by statute.
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`
`Gambling and the Law
`
`The public plays an important role in creating the moral context in which the laws
`are to be enforced. The public has a double standard of morality in dealing with
`gambling, prostitution, liquor and similar matters; there is a desire to outlaw in the
`abstract but not to enforce strictly.
`
`The law has always had trouble with consensual, victimless crimes. Should the
`law prohibit what most people want to do? Illegal gambling clearly does lead to severe
`problems for a small part of the population, perhaps as much as three percent of
`the public are compulsive gamblers. If the activ