Is it a crime to organize a poker game? In Pennsylvania, and a surprising number of other states, the answer depends on whether the game is predominantly one of skill or chance. Howard Bashman of How Appealing argued a case on this question today. Tom Goldstein filed an amicus brief.
This is a thoroughly bad way to write a criminal statute, because the balance of skill and chance can vary with subtle changes in the game. Indeed, in poker tournaments that balance varies even within a single game. Early in the tournament, the mandatory bets ("blinds") are small compared to the chip stacks. Also, with two blinds and ten players per table, a given player must post a blind only twice in ten hands. The players have many options at this stage, and the skill factor is relatively high.
Late in the tournament, the blinds are much higher. As players get knocked out of the final table, the remaining players must post blinds more often. Options are fewer, with fewer opportunities for elegant strategies, and taking big chances becomes more common. This stage is "nasty, brutish, and short." (Dan Harrington quoting Thomas Hobbes.)
I'll root for Howard, but the real answer is to amend the statute. The status of an act as a crime or perfectly legal ought not to depend on such a fuzzy question.
California, BTW, does not follow this rule as a general matter, although it does for mechanical games. We have a statute prohibiting a number of games by name, not including poker but including hokey-pokey. That illustrates why enactments must be interpreted in accordance with their original understanding, not what their words mean today. If Penal Code ยง 330 were a "living document," we would have to bust all the preschool teachers.
This is a thoroughly bad way to write a criminal statute, because the balance of skill and chance can vary with subtle changes in the game. Indeed, in poker tournaments that balance varies even within a single game. Early in the tournament, the mandatory bets ("blinds") are small compared to the chip stacks. Also, with two blinds and ten players per table, a given player must post a blind only twice in ten hands. The players have many options at this stage, and the skill factor is relatively high.
Late in the tournament, the blinds are much higher. As players get knocked out of the final table, the remaining players must post blinds more often. Options are fewer, with fewer opportunities for elegant strategies, and taking big chances becomes more common. This stage is "nasty, brutish, and short." (Dan Harrington quoting Thomas Hobbes.)
I'll root for Howard, but the real answer is to amend the statute. The status of an act as a crime or perfectly legal ought not to depend on such a fuzzy question.
California, BTW, does not follow this rule as a general matter, although it does for mechanical games. We have a statute prohibiting a number of games by name, not including poker but including hokey-pokey. That illustrates why enactments must be interpreted in accordance with their original understanding, not what their words mean today. If Penal Code ยง 330 were a "living document," we would have to bust all the preschool teachers.
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