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Traffic streaks along Las Vegas Boulevard on Monday, March 20, 2017. (Jeff Scheid/The Nevada Independent)

Believe it or not, there are enemies of legalized gambling. Some moralists see it as sin. Some economists feel it disproportionately affects the poor and has too many societal costs. Some mental health practitioners point out the potential for addiction as machines are developed in ways that potentially can ensnare vulnerable populations.

Nevada has forged ahead despite the often-sharp criticism from these groups, mostly unencumbered with regret since the Legislature’s enactment of the Wide Open Gambling Bill of 1931. This law singularly shaped Nevada’s economy and to this day, without legal gambling, we’d be economically screwed.

But even the most ardent supporters of our state’s business model acknowledge that for some people, gambling is a significant problem and the community is negatively affected when the folks who need help fall between the cracks or turn to crime. The clinical description of those vulnerable to gambling addiction has been a matter of scientific evolution; the percentage of people afflicted with a problem gambling disorder may be disputed, but no one suggests that the number is zero. Indeed, according to the non-profit Nevada Council on Problem Gambling “up to 6 percent of the adult population may be suffering the negative emotional, financial and personal consequences of a gambling problem.”

Nevada has been criticized on a regular basis for not offering enough relief to, or even identification of, problem gamblers in our midst. If the 6 percent figure is accurate, more than 100,000 adult residents and more than 2 million visitors to the state’s casinos are likely affected. According to a study done in 2013, among 39 states with some legalized gambling, Nevada placed 15th for public spending on problem gamblers. It amounts to a little above the national median average of .25 cents per capita being devoted to treatment services.

How much social responsibility should a gambling-dependent economy take for the negative aspects of the industry?

* * *

On March 15, the Las Vegas Review-Journal broke a story that a close aide to Clark County District Attorney Steve Wolfson had stolen nearly $42,000 from his campaign fund in 2014 “to cover a gambling habit.” The crime was not submitted to law enforcement for investigation or any prosecuting agency. Instead, the district attorney used his discretion to privately work out the matter with his friend, Audrie Locke.

She was able to seek help because of this mercy. Engage in a treatment program. Gather resources to pay back the sum. Endure no further investigation and get right back to work. And that would have been it, but for the news report.

In the same news article, Clark County Commissioner, Steve Sisolak, who oversees the Clark County District Attorney’s office, said, “I don’t know if [Wolfson] affords that same opportunity to other individuals that he prosecutes.”

Well, Commissioner Sisolak, I’m glad you raised the question. And here’s the answer – NO! Not even close. In fact, it’s the absolute opposite. The Clark County DA hasn’t been shy in expressing his contempt and disdain for problem gamblers.

* * *

In 2009, the Legislature passed a bipartisan bill creating Nevada Revised Statute 458Awhich provides a mandatory mechanism to evaluate the viability of treatment instead of incarceration for problem gamblers who have committed crimes “in furtherance or as a result of” their disorder. It passed with close to unanimous consent. The Clark County district attorney’s office (then led by David Roger) objected to this proposed statute claiming it would produce a floodgate of people trying to avoid liability for crimes.

It didn’t.

Between 2009 and 2015, it appears that only one person in Clark County was given the statutory gambling diversion and, even then, only over the objection of the Clark County district attorney’s office.

There are no readily available statistics (or even anecdotal evidence) related to any other court considering statutory gambling diversion during this time frame. Part of that is related to the fact that few, if any, defense attorneys were specifically asking for it. But it really shouldn’t have mattered if it was requested.

The trigger in the statute is the moment the criminal court judge in a given case has “a reason to believe” that the crime involves a case of a problem gambler. In fact, when that low threshold has been met, the judge is required by law to halt the proceedings and hold a hearing to determine whether the person could benefit from treatment. If the answer is yes, then a treatment program is designed and must last between one to three years.

Additionally, the court can order restitution be paid and place any other conditions typically associated with probation on the problem gambler. This can include a curfew, a requirement to stay out of gambling establishments and even house arrest. At the end of the treatment program, if the person is deemed compliant and successful by the criminal judge, then the person can have the charges dismissed. The general idea being that society benefits from having a rehabilitated person in the community, who can then go forward without being an ongoing concern.

If the person fails, the criminal judge can proceed to a sentencing phase where prison or probation are back on the table. Of course, once the mandatory hearing is triggered, the law allows the district attorney’s office to offer reasons why the person should not get the benefit of treatment and a dismissal.

And here’s where the district attorney has really dug in.

Deputy district attorneys under Mr. Wolfson have consistently been opponents of granting diversion or even probation to people charged with theft, embezzlement or other qualifying cases.

When a defense attorney points out that a client is a first-time offender, a typical response follows an argument quoted directly from court transcripts and pleadings:

“What we have here is a crime wave encompassed into one or two felonies which is ultimately charged…what we have here, (the defendant) doing the equivalent of that (theft) 366 times over a long period of time.”

The point apparently being that a problem gambler who embezzles money from an employer in order to gamble (a fairly typical charge for a problem gambler) isn’t a first-time offender, but that the court should look at every action of theft as a new and separate offense making the person’s actions a “crime wave.” In the case referenced above, the one-person “crime wave” involved the embezzlement of a total of more than $350,000 dollars, and the woman was sent to prison as the DA requested. The judge gave a sentence of a maximum of 14 years. (The law places no floors or limits on the degree of theft for which defendants warrant treatment over incarceration.)

Another argument the Clark County district attorney’s office is fond of making is that a person can’t be considered a problem gambler who needs treatment if they’ve also bought items or paid credit card bills while engaged in criminal conduct. A typical response here goes like this:

“While gambling was part of (the Defendant’s) criminal spending, she primarily used money that she stole (from victim) for living expenses for her and her family.”

Part of that argument presupposes that one can track all the gambling activity of a problem gambler and precisely apportion his/her percentages of spending. But it also assumes that one can only be a problem gambler if stolen money is only spent on gambling, which contradicts all scientific and mental health data as well as common sense.

Indeed, the insidiousness of problem gambling is that sometimes the person actually wins (surprise) but ultimately financial ruin ensues because of the horrific odds inherent in the activity. Calling problem gamblers greedy people who happen to gamble reveals a willful ignorance of the indicators of problem gambling. Problem gamblers are compelled to gamble and therefore put themselves in an ever-deepening financial hole. This naturally leads to creative problem-solving to pay for the necessities of life which become increasingly harder to manage and salvage.  

Experts say that “secrecy is the hallmark of a gambling disorder” and to keep the secret from those around them, they do what it takes to cover losses including, in some cases, keeping a stream of money coming from criminal activity. The problem gambler’s diseased mental process believes that if simply given enough time, they will be able to win back the loss and replace the theft, but of course that never happens.

Short of a Megabucks miracle, even modest wins are returned right back to the source of the gambling – which is oftentimes video poker and slot machines. To truly track the depth of the problem gambler’s addiction, one needs to look at things like amount of time in front of the machine, increasing sizes of wagers, numbers of trips to the ATM or cash advances, number of overdue bills and shifting resources like credit cards and payday loans.  

It’s not so simplistic as the district attorney’s insinuation that a court should only look at a win-loss record from a specific casino or that to truly be a problem-gambler, the person needs to be like a strung-out heroin addict at all times in decisions, deeds and distress.

* * *

Which brings us back to Mr. Wolfson’s friend and aide, Audrie Locke. While it’s unknown, because there was no formal investigation, how many times Ms. Locke went back to the well of Mr. Wolfson’s campaign finance money, it was certainly more than once to ultimately amount to the reported $42,000 dollars of theft. In fact, it was acknowledged by Ms. Locke in the R-J news article that she “gambled away her paychecks and needed the money to pay her bills.”

While she wasn’t supervised, and was not treated for one to three years with conditions, she did get the opportunity to participate in a six-week treatment program, which Mr. Wolfson acknowledged. “I believe she had an illness and I believe that it’s this illness that caused her to do this. I decided to give her a second chance to prove to me that she could get treatment for addiction,” Wolfson said to the Review-Journal.

Since a landmark case* initiated in 2015 in which a problem gambler named Jerry Meador was ultimately released from prison (over stringent and protracted objection by Mr. Wolfson’s office including an unsuccessful appeal to the Nevada Supreme Court) the playing field has changed. Because of that case (in which the judge held that she just didn’t realize the operation of law required a mandatory diversion hearing), the Clark County courts have received many more requests for problem gambling diversion from hopeful, qualified defendants.

And while all the numbers aren’t readily trackable, it is clear there have been no more than a handful of individuals who have been granted diversion by the courts. It also appears that in each of these few cases, the Clark County district attorney’s office has advocated that diversion not be allowed. In fact, this same prosecutor’s office has been recently demanding that defendants waive their right to even request the mandatory diversion hearings in exchange for more favorable plea negotiations.

And that’s not all. During the 2017 legislative session, a chief deputy district attorney unsuccessfully attempted to find a sponsor for proposed amendments to NRS 458A that would have further limited the ability of problem gamblers to seek diversion under law with changes such as placing a $3,500 cap on eligibility (remember, Audrie Locke stole $42,000), a requirement that the problem gambler not only try to pay restitution but actually pay it back in full in order to get treatment (as if problem gamblers keep a lock box of back-up funds to repay their victims) and to exclude so-called “marker” cases where problem gamblers overextend themselves in credit situations with casinos. The chief deputy presumably made this pitch for amendments with the support of his boss, Steve Wolfson.

Gambling is Nevada’s golden goose. We love the eggs, but some people are quite allergic. The casino industry (which generally also supported NRS 458A) doesn’t see a lot of negative or critical stories in the local media analyzing the obvious downside to their drive to make gambling parlors, games and devices more conducive to longer and stronger gambling.

Still, there has at least been a movement to acknowledge a higher degree of social responsibility. Gaming companies and other members of our community have a vested interest in not warehousing the portions of their target audience who cannot handle the action without treatment. At the very least, the 2009 law needs to be applied consistently and regularly.

Mr. Wolfson’s compassionate view of a problem gambler in his midst was absolutely the right way to go, but Mr. Wolfson is not an ordinary citizen. He is the district attorney, and his office is charged by law with doing the right thing in all cases where a problem gambler is involved in criminal activity. Ms. Locke’s admissions and pleas for leniency parallel those of many individuals whom have been unsympathetically prosecuted by Wolfson’s office.

Mr. Wolfson not only accepted Ms. Locke’s representations at face value without further law enforcement investigation, but based on her admissions – that she used the money to pay her bills, that she had committed theft with multiple transactions, that she needed and wanted treatment – there is no doubt that he gave his friend a second chance. A second chance that his own office would not support if this matter was trusted to the criminal justice system with his own deputies at the helm.

Hopefully, with the light shown upon this situation, Mr. Wolfson will not feel bad about his act of mercy, but will order his deputies to help facilitate treatment as a matter of stipulation for those who are similar situated to Ms. Locke as they come up. But he doesn’t need to stop there. Perhaps all those prison inmates who never got the chance at the mandatory diversion hearing can at least get a fair day in court to consider their plight, too. Mr. Wolfson has the power to make that happen, and if he leads by that example, perhaps the entire state can follow suit.

Justice should never be based on a crapshoot of who you know or who you don’t.
Disclosure: Steve Sisolak has donated to The Nevada Independent. You can see a full list of donors here.

Dayvid Figler is a criminal defense attorney and former Municipal Court judge. In 2017, he was honored as Advocate of the Year by the Nevada Council on Problem Gambling. He is one of Ms. Meador’s attorneys in her case.

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