Transcript The Honorable Mark Farrell

PROBLEM GAMBLING & THE LAW
Norwood, MA
April 14-15, 2016
The Gambling Treatment
Court Experience
A “Struggle” for Progress & Therapeutic
Innovation in the Criminal Justice
System:
Origins, Implementation & Challenges
Judge Mark G. Farrell
Gambling Treatment Court Judge
Amherst, New York
[email protected]
716-480-1176
Pathological Gambling Definition
Pre-2013

Pathological Gambling characteristics:
– Progressive disorder
– Individuals who have a psychologically
uncontrollable preoccupation & urge to gamble
– Results in damage to vocational, family and
social interests
– Chronic and progressive inability to resist the
impulse to gamble
– Considered an impulse control disorder in DSM
since 1980
Pathological Gambling Definition
2013: DSM V
 Reclassified per APA recommendations
 To be under “Substance Related Disorders”
 New Category: “Behavioral Addictions”
 Changes
– Fewer criteria for diagnosis
– Elimination of necessity for an illegal act
– Shift to “Disease-Based” model?
PATHOLOGICAL/COMPULSIVE
GAMBLING PROFILE
A.
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Persistent and recurrent maladaptive
gambling behavior as indicated by 4 or more:
Preoccupied with gambling
Gambles to escape
negative feelings
Behavioral changes
(restless or irritable if not
gambling)
Withdrawal
Illegal behavior
Lies to conceal extent of
gambling
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Needs to gamble
more to get same
thrill
Chases losses
Risks job, school,
relationships
Seeks financial
bailouts
Tries to cut back or
stop but can’t
PATHOLOGICAL/COMPULSIVE
GAMBLING PROFILE
B. When the gambling behavior is
accompanied by a manic episode, the
diagnosis may sometimes better be
accounted for by that diagnosis (i.e.,
manic behavior).
Psychological Risk Factors
Near misses
 Risk-taking
 Sensation-seeking
 Impulsive
 Unhealthy coping skills
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Psychological Risk Factors (con’t)
Psychiatric conditions
 Low self-esteem
 Competitiveness
 Possible Genetic Predisposition
 Emotional Disorders
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Psychological Risk Factors (con’t)
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Disorders in Thinking
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Denial
Over confidence
Sense of Power and Control
Superstitions
Belief that money is the cause and solution to
all problems
Environmental Risks
(Domestic & Worldwide Application)
Gambling availability
 Gambling product variety
 Gambling peers
 Gambling family(past Hx&Dx)
 Excessive life stressors- critical
 Fantasy Sports ?
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Environmental Risks
(Domestic & Worldwide Application)
Lack of life structure
 Access to credit

– Casino
– Financial Institutions
– Accounts
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Dysfunctional Family
“Problem Solving” Courts
Judicial Dilemma
Therapeutic Commitment
or not?
Theory and Practice
Diversionary vs. Traditional processing
 Rehabilitative vs. Punitive vs. Deterrent
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– Cycle of recidivism
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Protocol
i.e., “Ten Key Components”
(US Dept of Justice &
Nat’l Assoc. of Drug Court
Treatment Professionals)
www.nadcp.org
Judicial Role:
Planning & Implementation
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Judicial commitment
– Acceptance of disease based model (i.e., drugs,
alcohol, gambling, mental Health
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Management and control: judge as team leader
& “benevolent despot”
Building a Team (perseverance)
– Recruitment of provider agency support and
individual team members
– Coordinate prosecutorial & defense team members
» i.e. dedicated Therapeutic Court Defense Counsel
Planning and
Implementation
Identification of potential outpatient facilities
 Training: Providers & Court Staff – cross
education & orientation
 Participant orientation planning
 Due Process awareness, a defense bar &
participant contractual coordination with the
Court

Court Operation
Non-adversarial
 Contract based
 Rehabilitative purpose
 Set protocol & rules
 Consistency & uniform application of rules
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– Sanctions
– Rewards
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Toughness, compassion & open-mindedness
Application to Gambling
Understand the addiction & the “gambler”
 Understand the carnage
 Listen to experts
 Cope with the challenge of identification
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– Flexibility, risk taking, common sense & realism
– Remember! No urine/blood test available (seek
defendant admissions & collateral info)
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Creativity
Recurrent Courtroom Practice Issues
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Screening
Multiple presenting addictive
processes & cycle
Drugs
Alcohol
Gambling
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Co-Occurring Disorders mask or complicate Diagnosis
Unique Status Issues
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Youthful Defendants (ages 16 to 21)
Domestic Violence Victims
Veterans
Mental Health Issues and/or Other Addictions
Gambling Treatment Court
Progressive Interface
with the
Criminal Justice System
Traditional Characteristic
CRIMES
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Petit Larceny (e.g.,
shoplifting)
Burglary, Robbery, Possession
burglar tools
Drug/alcohol offenses related
to Co-morbidity (DWI,
Possession)
Criminal Possession of stolen
property
Grand Larceny
Identity theft
Theft from employer (money,
services, goods, lottery tickets)
Forgery
False Impersonation
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Embezzlement
Theft from Family (money,
credit cards)
Bad Checks
Falsely reporting crimes to
avoid family detection
Endangering the Welfare of a
Child (leaving child alone at
home or in car)
Resisting Arrest
Criminal Mischief
Assault
Controlled Substance Sale
Pathological Gamblers
and Crime
DSM-V criteria: no necessity of illegal act
 Primary motivation for criminal behavior
is to continue gambling
- Craving the “Action”
 As losses increase, the
pressure to offend increases

Risk Factors for
Illegal Behaviors
More severe problem gambling (PG)
 Problems with multiple forms of
gambling
 Owing debts to acquaintances
 Gambling-related lethality risk

– I’m going to kill myself anyway
Excessive substance abuse
 Other mental health issues
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Implications for Treatment –
Continuing Management
 PG
+ illegal behaviors
– More Severe
– Poorer outcome
– More resistant to treatment
– May need more intensive treatment, or
different type
(Ledgerwood 2007)
Systemic Comparisons
Traditional Criminal Justice
Regimen
vs.
Therapeutic Intervention
Current “Traditional” Orientation
Gamblers seen as hard core criminals
 Societal insensitivity to gambling
addiction
 Extreme lack of prosecutorial
knowledge & education, as well as
sensitivity & openness to
therapeutic intervention
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Current “Traditional” Orientation
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Absence of inclusion of gambling addiction
statutory language in diversionary
therapeutic legislation
– i.e. New York Rockefeller Drug Law
Amendments, Judiciary Law Section 216
Judicial “acculturation” & mandatory
sentencing guidelines
 No systemic treatment avenues or
relationships with treatment facilities
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Traditional Criminal Justice System:
Arraignment to Probation
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Defendant is arraigned on formal charges
Plea negotiations between defense counsel &
district attorney
Plea or verdict
Defendant has probation evaluation
Defendant is sentenced
Extensive processing time
Defendant may be referred for gambling problem
assessment/treatment – IF IDENTIFIED
Problem of available treatment site identification
Traditional Criminal Justice System
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Non-compliant Defendant
– Probation Officer files violation of probation
– Judge may incarcerate appropriate to crime,
irrespective of gambling problem
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Incarcerated Defendants
– Limited, if any, access to
Gambling Recovery Programs
– Probable return to gambling &
criminal activity upon release
Therapeutic Justice:
Theory & Perceptions

Notre Dame Law Review Jan. 1999
– The Court as a proactive agent of change
– Cycle of criminal behavior
– Rehabilitation & reduction of
recidivism as a judicial goal
Georgia Law Review
Vol. 42 No. 3 Spring 2008
 “Problem Solving” courts
in the 21st century
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-Judges as “social workers”
Therapeutic Justice System:
Arraignment to Enrollment
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Defendant is arraigned on formal charges
Judge applies problem gambling indicia
– Suspected gambler is referred for initial
limited gambling assessment
– Evaluation for drug/alcohol or co-occurring
disorder issues completed
– In Amherst, NY* due to existence of
Veterans Treatment Court, further service
status screen done
Defendant then returns to Court within 48
hours to 1 week with initial assessment
package results
Protocol:
Identification & Referral
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At Arraignment -- Indicia of problem gambler
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Type of criminal activity
Past criminal record
Psychosocial characteristics
Drug/alcohol/mental health issues
Financial/debt status
Family/colleague/employer reports
Systemic Cooperation
– Full screen for co-morbidity: drug/alcohol cooccurring disorders
– Consideration of mental health referral
Identification & Referral –
Post Arraignment
Screening Tool (South Oaks.. etc)
 Pursue corroboration
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– Additional collaterals: interview
family/business associates asap
– Credit reports & Bank acct records
– Self admits
– Mental health consults?
Therapeutic Justice System:
Process
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Full screening assessment completed
within 2 weeks
Plea negotiations between defense
counsel & district attorney result in either
Pre-plea or Post-plea diversion to
Gambling Court, if appropriate
Defendant begins individualized,
contractual, judicially monitored,
gambling recovery program
Therapeutic Justice System
 The
role of Defense Counsel
– Singular event retention focus shifting to
overall holistic concern
– Zealous advocacy within a team setting
– Partnering in Recovery
– Diversion
Therapeutic Justice System:
Treatment Paths
Gambling recovery program triage process
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Short duration prevention/education program
(abuse): 4 weeks to 3 months
Variable term treatment: up to 3 years
for problem or pathological gambling
Amherst Gambling Treatment Court
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minimum 1 year duration for
pathological gambling defendants
– exception if abuse diagnosis:
Compliance Court (weeks to months)
Therapeutic Justice System:
Road to Recovery
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Defendant mandated to return to court
regularly to assess progress in treatment
If defendant non-compliant with treatment
program, Judge can sanction (including
possible incarceration)
Defendant motivated to make progress due
to regular monitoring, accountability &
psychosocial support system
Defendant is monitored & educated to
guard against “replacement” addictions
Therapeutic System Protocol
Sanctions
&
Incentives
Sanctions May Include*
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Warnings & admonishments in open court
Demotion to earlier program phases
Increased frequency of court appearances
Confinement in the courtroom or jury box
Increased monitoring &/or treatment intensity
Fines
Required community service or work programs
Escalating periods of jail confinement
Termination from the program & reinstatement
of regular court processing
*based on Drug Court Key Component #6
Responses to Compliance
May Include*
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Public encouragement & praise from the bench
Ceremonies & tokens of progress, including
advancement to the next treatment phase
Reduced supervision
Decreased frequency of court appearances
Graduation
– Reduced or suspended incarceration
– Reduced fines or fees
*based on Drug Court Key Component #6
The “Amherst” Experience
The Screening process: unique & evolving
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Gambling
Mental health
Substance abuse
Domestic violence
The Programmatic approach
The Team: multi-faceted & interdisciplinary
The “Clients” – 32 as of 1/1/2014
The “Amherst” Experience
The Therapeutic Problem Gambling
approach includes:
•Counseling: Mental health; Substance abuse;
DV/Family; Consumer debt
• Individual counselor &/or group
•Gamblers anonymous/Gam-anon
•South Oaks Gambling screen, NZ eight, etc.,
(every 3 months)
•16 week psycho-education group
Spousal, significant other, and parental
cooperation in court room experience
The “Amherst” Experience
For ALL Drug/Alcohol and Gambling
Treatment Court Participants:
Mandated
Orientation
Mandated “Replacement Addiction”
awareness seminars
The “Amherst” Experience:
Psychoeducational Component
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16 weeks
Lecture, role play,
video, homework
Periodic quizzes
Penalties for
missing group
(attend 2 sessions
for every
unauthorized
absence)
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Educate re Signs of
a gambling problem
Phases
Dealing with
triggers & urges
Managing time &
money
Thoughts & feelings
Personality traits
The “Amherst” Experience
THE GRADUATION
 Criteria
 “special” event -- celebration
… I think I can
… I think I can
… I thought I could
Amherst Drug Treatment &
Domestic Violence Courts
Drug Court since 9/96
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6825participants
DV Court since 9/97
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4476 graduates
– 82% success rate
– 789 (~17%) re-arrests
(drug/alcohol)
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44“crack-free” babies
Current caseload
– 217 active
– 103 on warrant
1923 participants
- “success” rate
(difficult to
assess)
Enforcement of
Orders of Protection
Integrated DV Court
issues & effect
Other considerations
•“Drop-outs”
• Repetitive violators
Amherst Gambling Treatment Court:
Demographics
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74% Male
34% African American/Minority, 66% Caucasian
35% Household income below $15,000
39% Employed, 58% of Employed are PT
Ages 17-62, Mean Age 34 (female mean age 39.5)
65% HS grad or GED (35% non-grad)
43% First gambled before 18
78% First gambled before 21
51% Gambling problems began <2 years ago
36% co-occurring diagnosis
17.5% veterans
Gambling Court Statistics:
Gaming Types & Standardized Test Scores
Gambling Activities: Blackjack, Lottery, Video
Poker, Sports, Stock Market, Quick Draw, Casino
related (i.e., slots, etc.), Fantasy Sports
 Type of Crime: 69% Theft
(Employer, Family)
 Average DSM-IV Score at Time
of Admission: 7.3
 Average Time to Complete Program:
12.3 months
One year participation now mandatory
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Amherst Gambling
Treatment Court
Programmatic Learning,
Awarenesses &
Developmental Process
Amherst Gambling Treatment
Court: Facts
Limited to misdemeanor crimes & sporadic
felony level cases reduced by the DA
 Increased Superior Court referrals for
Gambling Court participation as
component of conditional
discharge/probation sentencing
 Increase in minority populations
 Fewer warrants – probable function of
effective Orientation program
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Amherst Gambling Treatment
Court: Challenges
Need for enhanced awareness of Court
by Bench &Bar, as well as more active
referral buy-in by Prosecution
 Recognized challenge/issue: Serious
gambling activity, e.g., high level
embezzlement, significant credit card
fraud, felony identity theft & Grand
Larceny is restricted to handling by
higher courts where there is currently
NO gambling intervention
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Amherst Gambling Treatment
Court : Challenges
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Continuous re-evaluation necessary to enhance
identification and triage process
– Screening tools require ever-increasing
sophistication
– Screening should be sensitive to influences of
separate Drug, Veterans and Domestic Violence
Court evaluations, and of course, to ever present
defendant mental health symptoms & treatment
– Increase noted in Abuse population
» Education track only: out-sourced
» Serious abuse cases: refer to Compliance Court
Amherst Gambling Treatment
Court: Evolving Awareness
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Sensitivity to including Spirituality and
Cultural components is ESSENTIAL
– Highly inter-dependent with program
effectiveness & success
– Especially important with Native & Minority
populations
» Working partnership with Native American
Tribes and Tribal Courts
– Applicability to Massachussetts setting
Recognition of Obstacles to Goal
Attainment in Gambling Treatment Court
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Systemic & societal awareness & recognition of “need”
Screening and Identification
Multiple concurrent addictions
Immediate need to stabilize serious/obstructive mental
health conditions – adds significant complexity
Defendant/participant manipulation
Familial/significant other enabling
Prosecutorial resistance
Defense Counsel resistance/obstruction/intervention
Scarcity of in-patient treatment facilities & counselors
Monitoring of relapse & re-arrest incidents
Monitoring:
An Ever-Present Dilemma
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Clear explanation of Program expectations at Orientation
– Honesty, sobriety and accountability
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Treatment Agency: monitors personality, compliance &
life activity deviations
Periodic drug & alcohol testing
Random credit report & bank records review
Casino/Racino/Venue: Self-exclusion, as warranted
Individualized components
– Frequency/Interaction w/Gambling Treatment Court
– Random home visits
– Releases to permit law enforcement computer checks
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Collateral contacts
Voice Stress Analysis: proposed (e.g., Evergreen)
Amherst Treatment Courts:
Awareness of Mental Health
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Dramatic increase in, and need to identify,
co-occurring disorders
– PTSD (returning Vets)
– Trauma issues
– Mental health diagnoses: bipolar,
depression, anxiety, etc.
– Cognitive disabilities
Amherst Gambling Treatment
Court: Tools
 Adopted/Adapted
previously validated
screening tools; Implemented new
– Modified South Oaks
– NZ Eight
– DSM IV: self-test
– Lie/Bet
– GA–20
– Local Model
– ??
Amherst Gambling Treatment Court
2001-2015: Process

Evolved new screening approach
– Educate (briefly before initial screen)
– Screen along with CD measures in Drug Court,
then refer out for full evaluation
– Implemented mandatory problem gambling
education group
» done in conjunction with Orientation
– “Replacement addictions” component
– Re-Screen throughout program
Amherst Gambling Treatment Court:
Future Requirements & Goals
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Constant review & improvement of screening
process
– More effective identification tools
– Educate lawyers and judges
– Increase number of off-site screens
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More sophisticated professional staff training
More comprehensive mental health triage & care
Improved integration of spiritual & cultural
factors
Continued expansion of needed collaboration
with, and referrals to & from, other Drug, DV
and Mental Health Court Programs
Amherst Gambling Treatment Court:
Future Requirements (con’t)
Improved communication and relationship with
defense counsel
 Identification and utilization of new in-patient
gambling treatment facilities
 Consideration of Medication regimen
 Creation of Empirical and Evidence based
Research- University collaboration
 Lobbying for & acquisition of Grant Funding
 Collaboration with emerging Gambling Courts
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Summary
Gambling Treatment Courts ~ Therapeutic
Justice Court
– Early identification, intervention &
comprehensive assessment
– Mandated treatment
– Judicial supervision – key element
– Development of healthy behaviors
(~ reduce recidivism)
Expected & Experienced exponential growth of
gambling-related or gambling-driven offenses
within the Criminal Justice System
Summary
Action Plan
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Enhancing public & governmental awareness
– Legislative intervention/support – ESSENTIAL!
(statutory revisions, budgetary allocations)
– Media promulgation of Gambling Court results
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Expanding Judicial involvement
– Regular involvement/presentations in mandatory
Judicial Education Programs
– Liaison and networking between Superior Court
and lower Court jurists to promote creative
alternative sentencing options
Summary
Action Plan (con’d)
Enhancing & refining operational protocols,
dealing with identification, handling of
multiple addictions and co-occurring
disorders
 Better outreach to active and potential
treatment providers
 Improved understanding and measurement
of “success”
 Creation of measurable post adjudication
follow-up
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