Diminished Capacity Departures for Compulsive Gambling: Punishing the Pathological or Pardoning the Common Criminal?

I. INTRODUCTION A grandmother from New York City was sentenced yesterday to 31 months in federal prison and ordered to pay back the nearly $4.9 million she embezzled from her former employer to feed her gambling habit in Atlantic City. From the judge, she asked for mercy. To some extent, mercy had already been shown. Checoura could have received substantially more prison time, but [the judge] agreed last month to apply a sparingly used portion of federal law to reduce her sentence. Her compulsive-gambling disorder, he ruled, "significantly impaired her ability to control her wrongful behavior."1 In 1998, the Federal Sentencing Guidelines ("Sentencing Guidelines" or "Guidelines") were amended to explicitly include volitional impairments within the diminished capacity guideline.2 Thus, the Sentencing Commission endorsed leniency for those defendants who, like Checoura, although fully capable of discerning right from wrong, are perceived as having an impaired ability to conform their behavior to the law. The compulsion is perceived as so great that it overpowers the will. Yet, mitigating punishment because of a perceived volitional impairment raises all the same concerns that led Congress to reject a volitional insanity defense,3 the primary concern being that it could not be "reliably administered . . . because of inherent problems with distinguishing those unable to conform to IMAGE FORMULA6 the law from those unwilling to do so."4 This Comment will focus on that concern in the context of compulsive gambling5 as a factor for downward departure under the Sentencing Guidelines. Does a gambling addiction significantly reduce a person's capacity to obey the law? Where does one draw the line between an inability to obey the law and failure to obey the law, between an irresistible impulse and an impulse not resisted? Section II will give a brief account of the Guidelines and the rationale for the departure guideline. Section III will discuss the correlation between compulsive gambling and crime. The evidence shows that compulsive gamblers commit crimes (particularly theft crimes) at higher rates than the general population. Thus, as greater access to gambling begets greater numbers of compulsive gamblers, how sentencing courts will treat compulsive gambling becomes more important. Section IV will discuss the different ways in which the diminished capacity guideline has been interpreted regarding volitional impairments and will suggest that a compromise approach fashioned by the Seventh Circuit should be followed. Section V will discuss the difficulties in measuring volitional impairments in general and compulsive gambling in particular and propose that the evidence shows that compulsive gambling does not in fact cause a diminished ability to obey the law. Finally, section VI will discuss the incompatibility of downward departures based on compulsive gambling with the Guidelines' treatment of other factors, particularly drug and alcohol use and addiction. The conclusion of this Comment is that requests for downward departures based on compulsive gambling should not be granted. The reasons are twofold. First, there is little evidence that compulsive gambling causes diminished capacity and there is no reliable way of measuring it even if it does. Second, departures based on compulsive IMAGE FORMULA8 gambling are inconsistent with the Guidelines' policy goals and create a discrepancy with several Guidelines factors. Hopefully this Comment will call attention to serious problems, both in public policy toward gambling and in the difficult issues raised in punishing compulsive gamblers. Ultimately the goal is to neither punish the pathological nor pardon the common criminal. II. THE SENTENCING GUIDELINES: UNIFORMITY WITH FLEXIBILITY The Sentencing Reform Act of 1984 ("SRA" or "Act") grew out of a serious concern over "an unjustifiably wide range of sentences to offenders with similar histories, convicted of similar crimes, committed under similar circumstances. …