Consider this. You like to gamble, and make a good enough living to pay down your gambling bills. You’ve been doing it for years, and you’ve got a reputation among casinos as a person whose business justifies substantial “comps” – free luxury rooms, free gourmet dinners, free tickets to the best shows in town, among other things. You have a couple of hundred thousand in credit at Casino A (your usual haunt where you’re treated “like family”), another $100k in credit at Casino B (your alternative favorite place) and $50,000 at Casino C where you’re seen as kind of new but worth having around. Your credit reflects your gaming history and your ability to pay.
Over the years, you’ve won lots and lost lots, but you always paid your bills. Your favorite casinos know you’re good for it, so they don’t hound you; they’ll get paid in a few weeks or, in unusual circumstances, a few months. The casinos keep meticulous records on you including detailed payment ledgers and stats and they see you always pay your markers down to zero so the credit continues.
During a particularly unlucky period, you’re maxed out at all three places and have a few words with your “host” at the newest of the casinos you regularly visit. She doesn’t like your attitude and, to punish you, has the casino call your debt – $50k – payable at once. You’re waiting for some money to come in to your successful business – enough sales are expected to handle all your bills as they come due – but customers have been slow in paying and so you’re playing the waiting game. Your financing issues don’t matter to the pissed-off casino people, though, and so they punish you worse by putting out a derogatory report with the credit bureaus. This immediately messes up your otherwise excellent credit and causes your factor (your accounts receivable financier) to withdraw A/R financing which, for your type of business, is very, very bad news indeed. You didn’t expect this, but it’s here and you’re in trouble – you can’t pay your bills. Puns intended, the house of cards is coming down and, though you do all you can to avoid it, bankruptcy is in the cards. Your business is ruined, you’ve lost your house and most everything else including much of your health, but at least you’re alive and you’re done gambling.
Now, ten years later, the story kicks up a few dozen notches. You’re pulled over for a traffic violation and the officer tells you his computer shows you to be a fugitive from Nevada law and he is obliged to arrest you for extradition. You’re blown away and very afraid. At first bail is not available. When you get to court, the judge – at first not inclined to set bail – listens to your lawyer’s plea that the court must set reasonable bail and sets it at $370,000 – much more than is feasible for you to pay. Your lawyer asks the court to consider a more reasonable amount so you can get out and participate in your own defense and help fix this mess. The court then sets a bail hearing to consider reducing bail, but meanwhile, you – a grandfather, a U.S. citizen, a sickly man who is no danger to the community and not a flight risk – must sit in jail with hardened criminals.
Finally, ten days creep by and you’re back in court in jail orange. The court hears your lawyer’s motion to reduce and grants it, setting bail at $10,000 – an amount your family can afford. A few more hours and you’re out, thank God. But that’s not the end of it.
Nevada is preparing an extradition request to California’s governor, and once Arnold signs it, you go back into custody and CAN’T be bailed out until you’re back in Nevada and at the mercy of a Las Vegas judge. Looks like you’ll need to try this case, as you are frail and can’t earn enough to pay anything close to the nearly half a million dollars you are said to owe. Your only hope is a jury seeing the truth – that you did not intend to defraud anyone, that what happened was a “perfect storm,” a bad confluence of events that piled on top of each other and crushed you under the weight of it all, and that when you took out those markers you had every intention to pay them down just like you had for years before. Trouble is, Nevada relies almost exclusively on the gaming industry to maintain its society, and Nevadans protect their industry. That’s why they treat “bad marker” cases as fraudulent check cases, and are willing to imprison you from 1 to 4 years for each count – and there are 39 of them (one for each of the 39 markers you wrote ten years earlier and thought bankruptcy resolved).
Sadly, this scenario reveals that the criminal justice system in Nevada has taken the place of the Vegas mafiosi who used to collect bad gambling debts there. Instead of a couple of hoods rolling up in a black sedan, corporate Nevada extorts payment with questionable laws and what amounts to a Debtors’ Prison system, long abolished elsewhere in America and the civilized world. In fact, Nevada lawmakers are so protective of “this thing of theirs” that they created a legal fiction – a “presumption” that people who don’t timely pay up after getting a demand letter have “scienter” (criminal intent). Now think about that. The way we do things here in the states is that in a criminal case, the GOVERNMENT MUST PROVE each and every element of a crime. And if a crime includes fraudulent intent as an element, the government must prove it, plain and simple. Nevada, however, so addicted to protecting its gaming industry that it manufactures injustice into its law, appears to believe this time tested basic tenet of criminal law, used throughout the United States since its founding, is expendable to protect its gaming industry. That’s a problem, a shameful travesty the sole purpose of which is to pressure defendants to pay up on what is essentially a civil debt or get locked up. The only difference between Nevada’s way of doing business and the way of a loan shark’s enforcer is that Nevada simply enforces its skewed casino marker laws instead of wielding a baseball bat, and they do this because its governor, legislators, judges, prosecutors, citizens and by extension its jurors all depend on gaming to feed their families. Capice?
I won’t be surprised if the U.S. Supreme Court takes up an appeal on this case one of these days – assuming Nevada prosecutors will actually let a case get that far lest the USSC kill Nevada’s golden egg laying goose of a law.