seizure and forfeiture provisions hamper the renewal of gambling operations that have been raided and increase gamblers' expenses. c. Conclusions The basic problem in banning gambling devices is that of definition. Definitions must be brief, but not overly broad or narrow. They must exclude genuine amusement machines but take into account advanced technology. The prohibitions themselves must be similarly well-drafted. For completeness, dealing in gambling devices should be punished as possession. Seizure and forfeiture provisions offer an effective complement to the 67 Finally, dealing in gambling devices criminal sanctions. can be punished as harshly as gambling itself to maximize deterrence. E. The Modern Gambling Codes: Special Problems 1. The gambler: victim or criminal? The individuals who benefit the most from organized illegal gambling are probably prosecuted the least. Removed from the day-to-day operations and protected by long chains of command, organized crime syndicate leaders or enterprise Owners are often overlooked by the modern gambling statutes. By the same token, the small-time bettor--the victim of professional gamblers--is frequently punished along with the 67 Moreover, the cash contents of such machines ought to be seizable. See also second series note 49, supra, and second series notes 90, 91, infra and accompanying text. persons who took advantage of him. To be most effective, therefore, the gambling statutes should more carefully consider these participants at the top and bottom of the gambling structure. a. Organized crime The gambling laws are surely not the only weapon against organized crime. Nevertheless, they should be flexible enough to permit prosecution of persons not directly involved in the gambling business but who still profit from it. The Model Act, for example, acknowledges "the close relationship between professional gambling and other organized crime." not, however, allow a person who merely profits from a gambling business to be prosecuted directly. States following the Act 68 It does must therefore employ aiding-and-abetting or conspiracy theories to reach behind-the-scenes profiteers. 69 New York allows the prosecution of persons who "profit from gambling activity, "70 although the crime committed is 69. Indiana adds such a provision to its professional gambling penalty clause, which covers anyone who "knowingly causes, aids, abets or conspires with another to engage in professional gambling. Ind. Code $35-25-1-3. 70 A person 'profits from gambling activity' when, N.Y. Penal Law $225.00 (5). only "promoting gambling in the second degree."71 The result is anomalous here as in the Model Act. An organized crime leader may be guilty of only a misdemeanor under New York's gambling law, but a lower-level bookie or numbers banker may Wisconsin, on the other hand, be guilty of a felony. 72 permits prosecution of a person "who participates in the 73 earnings of" a gambling place, but allows no reduction of penalty. In general, leaders of organized crime syndicates may only be punished if they profit from, aid, or abet gambling operations. Proving that a defendant profited from illegal gambling is a problem in itself. Evidentiary difficulties aside, however, law enforcement officials should be able to prosecute organized crime profiteers for their important but distant role in gambling. Manifestly, the penalties for 74 this upper-echelon participation should be at least as severe as those for actual operation of illegal gambling enterprises. 711d. $225.05. 721d. $225.10. A syndicate head could be prosecuted for a felony if it were shown that he received more than $500 in one day from a lottery. This appears to be the only circumstance in which a felony conviction could be handed down. 73wis. Stat. Ann. $945.031: 74Successful prosecution of such profiteers would be greatly furthered by the use of wiretaps and electronic surveillance. b. The small-time bettor While participation at the upper level of the gambling ladder may not be punished enough, participation at the lower level of the ladder may be punished too severely. Small-time betting frequently violates modern gambling statutes. states which prohibit betting do so because it keeps the 75 professional gambler in business. New York-type statutes, Those on the other hand, except the player from criminal penalty 76 since he is more a victim than a wrongdoer. strong arguments on both sides of the issue. There are On the one hand, the professional gambler would quickly be out of business without the small-time bettor. Discouraging Outlawing betting thus cuts into the professional's income. betting may also protect the bettor's family and dependents by punishing him for squandering his money on gambling. On the other hand, the player is obviously the victim of the professional. The collective players in the United States bet an estimated $5 billion each year. 77 It would be 75 See Model Act, at 6. See also Colo. Rev. Stat. Ann. §§1810-102(2), 18-10-103, which criminalize gambling and except social gambling (where no one is a professional) from prohibition; Wis. Stat. Ann. §5945.01 (1) and 945.02 outlaw betting and provide no exceptions for bets between friends. 76N.Y. Penal Law $$225.00 (3) (defines player as a contestant or bettor who receives no profit other than personal winnings) and (4) (excepts the player from the rubric "advance gambling activity"). Hawaii uses the same statutory form as New York, but criminalizes the player by not excepting him from "advance gambling activity." Hawaii Rev. Stat. §7121220 (1). anomalous and unfair to punish the very person that society is trying to protect. He is normally the best source of evidence against the gambling oprators; he is more logically a witness than a defendant. These policy issues, however, can ultimately be balanced only by the citizens and legislators of each jurisdiction. c. Social activities As a Such Social gamblers must be treated as thoughtfully as are the organized criminals and the small-time bettors. practical matter, it makes little sense to outlaw friendly bets on Monday night football or penny-a-point gin games. activity is hard to detect and not as harmful to society as commercial gambling. Outlawing widely-played social games breeds disrespect for the law in general and for the gambling statutes in particular. Hence, many states explicitly except social gamblers as well as small-time bettors from their gambling laws. The problem arises, of course, of how to create a desirable exception without a pernicious loophole. A social gambling exception may also lead on occasion to search and seizure or probable cause problems, complicating the fight against unlawful gambling. 78 These difficulties can be 78. See, e.g., Spinelli v. United States, 393 U.S. 410 (1969), under which affidavits for search warrants might well have to establish, to a magistrate's satisfaction, absence of social gambling in order to establish probable cause. |