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The Archaic Nature of Gambling Laws
by Bob Ciaffone

Two players sit down in their country club recreation room and decide to play a penny-a-point gin rummy game. When the game is over, the loser extracts his wallet and passes a few bills to the other. At that moment, a couple of plainclothes police officers come up and say to the players, "You’re under arrest for gambling."

John Smith has decided to run a small office pool for Super Bowl Sunday, in conjunction with a party at his house. He made up a sheet divided into squares, a 10-by-10 grid that covered where all the possible scores could fall. Players could buy a square on the grid for a dollar, and whoever had the right score numerically would win the hundred dollars. His ex-girlfriend got wind of the party and informed her new boyfriend, who was on the local police force. As the winning team began their celebration and John was about to pay off, there was a cry at the door, "Open up; police." John was arrested for gambling, and his sheet for the office pool was taken as evidence against him.

These accounts are fictional. They never happened, and would be extremely unlikely to occur. They were constructed to illustrate the types of activity that a person could be arrested and jailed for in my home state of Michigan, according to state law. Of course, gambling laws are not strictly enforced. The approach is to make all gambling illegal, and leave it up to the chief of police to determine what gambling activity is enforced and what is ignored. Since that job is an elected office in my county, the chief would be a fool to use his meager resources to conduct a crackdown on the type of activity described. The chief is aware of the local gambling mores, and some people on the force are avid poker players, so he uses discretion in enforcing the law.

There is a lot of pressure these days on judges to "follow the law instead of make the law," but people seem blissfully unaware that there is a high degree of discretion in enforcement of certain laws. By far the biggest area in which police are supposed to think for themselves is in enforcing the gambling laws. Police are relied on to use their own judgment regarding the law (even though judges are not supposed to do it).

Of course, no one is perfect. There have been some infamous lapses in judgment by police from time to time; like when a Dad’s Doughnut Shop in California was raided because the patrons were playing chess for 50 cents a game; or when a senior citizens trailer park in Florida had a poker game raided, and the police confiscated $22 that had been in the pot as evidence of illegal gambling. (The arrested players subsequently became famous as the "Largo Seven," and appeared on Johnny Carson’s Tonight Show to tell their story.)

These lapses in judgment by police are almost laughable; others have not been quite so funny, like the time in the ’70s when a SWAT team in the Detroit metro area followed a "suspicious character" to a poker game in an apartment, then decided to raid it. The poker players turned out to be a group of Oakland County deputy sheriffs, who understandably thought they were being hijacked. In the resulting gun battle, three men were wounded and one died.

My home state of Michigan may not be as sophisticated as some of the coastal states like New York, Massachusetts, or California, but it is hardly considered to be a hick state, and it is not located in the Bible Belt. Why does my state have such draconian laws? In fact, about half the states in our nation have the same stringent laws on gambling that Michigan does.

These state laws specify what gambling is legal; any other gambling is illegal. Gambling is legal if the state does it. We of course have a state lottery. Gambling is legal if a casino does it. We have casinos, both on Native American land and off it. We have our share of racetracks, where gambling is an innate part. But you cannot gamble at such potentially sinful locations as your home, office, or country club. If you and I make a private wager on a round of golf here, we have broken Michigan law.

Where do such stringent laws on gambling come from? They certainly were not written in the 21st century. Most of them were not written in the 20th century. In fact, nearly all of them were drafted in the 19th century. That was a long, long time ago. That was the century when slavery was legal in America, and the U.S. Supreme Court said a runaway slave had to be returned to his master. That was the century when a British seaman could be given 50 lashes or more with a cat-o’-nine-tails if the ship’s captain was displeased with him. It was a totally different era in our society. It does look a bit peculiar now to permit branding and whipping people, but disallow all gambling. Yet, a vestige of that rather morally skewed time period continues in our gambling laws.

The spread of state lotteries, tribal casinos, and the popularity of our game of poker all indicate that modern society is far removed in action and attitude from the age when our gambling laws were enacted. Nearly everyone is aware of this immense change in our attitude toward gambling as our society has evolved, but our state laws do not reflect this change. Yours might not, either. It is high time that they did.

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